Durbin: It’s Time to Establish Enforceable Rules of the Road for All Justices

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today spoke on the Senate floor on the need for Supreme Court ethics reform, including a clear, enforceable code of conduct for Supreme Court justices, following yesterday’s Senate Judiciary Committee hearing on the topic.

“We have ethical standards all across the federal government that apply to the members of the Senate and the House, the Executive Branch, and to all of the Courts below the Supreme Court in terms of financial disclosure and basic rules of the road of what you can do and what you can’t do,” Durbin said.  “It turns out the highest court in the land has some of the lowest ethical standards.”

During his speech, Durbin noted that he invited Chief Justice John Roberts, or another Justice whom the Chief Justice designates, to appear before the Senate Judiciary Committee at yesterday’s hearing.  But the Chief Justice declined to appear.  In his letter declining Durbin’s invitation, the Chief Justice attached a “Statement on Ethics Principles and Practices” that raised more questions than it answered.

According to the Congressional Research Service, since 1960, Supreme Court Justices have appeared before Congress to testify in at least 92 hearings, addressing such issues as the constitutional role of judges, judicial security, annual appropriations for the courts, and judicial compensation. 

“I wrote to the Chief Justice of the Supreme Court, John Roberts, and invited him to come to the hearing yesterday to tell his side of the story.  What is the Supreme Court doing when it comes to ethical standards?  They don’t play by the same rules as all the other courts in America.  What are their standards?  The Chief Justice declined my invitation and sent along some documents to indicate what he thinks are the rules of the road for ethics in the Supreme Court now.  They were interesting, but unfortunately they revealed that the standards at the highest court in the land are not even equal to the standards at all the other federal courts,” Durbin said.  “So we had a hearing yesterday on the subject, and we invited witnesses from the Republican side and the Democratic side to comment on the current state of affairs.”

Durbin went on to correct the record regarding partisan arguments that some Judiciary Committee Republicans raised during the hearing.  During the hearing, some Republicans suggested that Durbin’s concerns about the Supreme Court’s lack of ethical standards are a red herring and that his real issue is with the current conservative majority’s judicial activism.  Durbin reminded his colleagues several times that he’s been calling on the Supreme Court to adopt an enforceable code of conduct for years, and that he first sent a letter to the Chief Justice on this issue 11 years ago. 

Some Republicans also argued yesterday that Congress lacks the authority to establish ethics rules for Supreme Court Justices.  They cite “separation of powers” concerns.  However, just last year, the Senate passed a law—with unanimous support—requiring Supreme Court justices to disclose their stock trades and financial holdings.  There is ample precedent for Congress passing laws that shape the high court—from annual spending bills that pay Justices’ salaries to establishing the oath of office that Justices take.

“Yesterday, I’m afraid, things were very partisan.  First, there was a question as to whether or not this was an attempt to attack the conservative members of the Supreme Court by raising ethical questions,” Durbin said.  “I tried to make a point several times that the first letter that I sent to a Chief Justice, this Chief Justice, on the issue of code of ethics for the Supreme Court, I delivered on February 13, 2012, during the Obama administration.  So this was not some newfound interest.  I’ve been working on it for years.”

Durbin continued, “There was also an argument that the Congress has no authority to establish standards for the Supreme Court.  As I mentioned earlier, when we had this stock disclosure law passed last year, it was embraced by the Court.  The Court goes through some form of financial disclosure based on a law passed in 1978.  And by and large, there are many ways that the Congress interfaces with the Supreme Court, not the least of which is its budget.  So we’re in constant communication with the Court and its operation.  I believe that we clearly have the authority to establish ethical standards in law for the Supreme Court.”

Durbin concluded, “At the end of the day, we want to make sure people, as skeptical as they are of politicians – they have every right to be – believe that the institutions, whether it’s Congress or the Supreme Court or the President’s office, are at least credible and trustworthy.  Establishing a fundamental ethical standard that assures that fact is absolutely essential, and the Senate Judiciary Committee will continue that pursuit.”

Video of Durbin’s remarks on the Senate floor is available here.

Audio of Durbin’s remarks on the Senate floor is available here.

Footage of Durbin’s remarks on the Senate floor is available here for TV Stations.

On April 10, Durbin and his Senate Judiciary Committee Democratic colleagues sent a letter to the Chief Justice urging him to take swift action to address reported conduct by Justices that is inconsistent with the ethical standards the American people expect of public servants.  The letter noted that as far back as 2012, Judiciary Committee Democrats had written the Chief Justice urging that the Court adopt a resolution binding the Justices to the same Code of Conduct that binds all other federal judges.  The letter advised that the Committee would hold an upcoming hearing, and that if the Court doesn’t resolve this issue on its own, the Committee will consider legislation to resolve it.

Durbin received a response letter from the Secretary of the Judicial Conference of the United States and it stated that the Senators’ April 10 letter was referred to the Judicial Conference and forwarded to the Judicial Conference Committee on Financial Disclosure. 

-30-