Durbin Questions Witnesses During Judiciary Subcommittee Hearing on Supreme Court Ethics Reform

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned witnesses at the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights hearing entitled, “Ensuring an Impartial Judiciary: Supreme Court Ethics, Recusal, and Transparency Act of 2023.”  Today’s hearing is the third hearing the Senate Judiciary Committee has held this year on the topic of judicial ethics.

Durbin first asked Donald K. Sherman, Executive Vice President & Chief Counsel for Citizens for Responsibility & Ethics in Washington, about how far behind the Supreme Court is from the executive and legislative branches when it comes to ethics standards and accountability.  In his response, Mr. Sherman noted that District and Circuit Court judges are bound by a “binding code of ethics,” but the Supreme Court is not.

Durbin then asked Mr. Sherman, “Justice Thomas, when he did not disclose [gifts and travel from Mr. Crow] at the Supreme Court level, was [he] in in violation of any law that you think applies?”

Mr. Sherman responded that “while personal hospitality need not be disclosed… the payment of his actual travel to the location on the private jet, his travel on the boats, especially because that travel, as we understand it, was funded by a private company and not actually the hospitality of Mr. Crow, needed to be disclosed and was a violation of federal law.”

Durbin then asked James J. Sample, Professor of Law at Hofstra University, about the issue of separation of powers being a barrier to Supreme Court ethics reform. 

“Can you rationalize the thinking that Congress has no authority over the Court, and yet, the Court follows what Congress says it should?” Durbin asked.

Professor Sample responded that, “It is clear that Congress does have authority to regulate the Supreme Court… separation of powers doesn’t mean that one branch of government is entirely independent of the others.  Congress regulates many aspects of the Supreme Court including the size of the Court, the salary of the Justices, its budget, the quorum requirements.”

“Those on the other side argue that Congress has authority when it comes to those elements that you just mentioned, but doesn’t have the authority to impact the decision making of the Court.  They draw that line,” Durbin said.  “Do you recognize that same distinction?”

Professor Sample noted that the Supreme Court ethics legislation that Congress might consider does not intrude into the core decisional independence of the Court in any way.

Pursuant to its authority, Congress has enacted a range of ethics laws that applies to Supreme Court Justices—most notably the Ethics in Government Act, the Federal Gift Statute, the Foreign Gifts and Decorations Act, the Federal Recusal Statute, and the Courthouse Ethics and Transparency Act which Congress passed just last year. 

Video of Durbin’s questions in Committee is available here.

Audio of Durbin’s questions in Committee is available here.

Footage of Durbin’s questions in Committee is available here for TV Stations.

Last month, the Judiciary Committee Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights held a hearing entitled “Review of Federal Judicial Ethics Processes at the Judicial Conference of the United States,” featuring testimony from the Honorable Mark L. Wolf, Senior U.S. District Judge for the District of Massachusetts.  Durbin’s opening statement from that hearing is available here and his questions for the witness are available here.

Earlier in May, the Judiciary Committee held a full committee hearing entitled, “Supreme Court Ethics Reform.”  The hearing emphasized the clear need for reform and examined common sense proposals to hold Justices to – at minimum – the same ethical standards as every other federal judge or high-ranking official in the federal government.  Durbin’s opening statement from the hearing is available here and his questions for the witnesses are available here.

Durbin has been calling on the Supreme Court to adopt an enforceable code of ethics conduct for more than a decade.  He first sent a letter to the Chief Justice on this issue 11 years ago.

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