Senate Judiciary Democrats Reject Unfounded Refusals to Comply with Information Requests by Those Seeking to Influence Supreme Court Justices

WASHINGTON – Today, all U.S. Senate Judiciary Committee Democrats – led by U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee – rejected refusals by Harlan Crow, Leonard Leo, and Robin Arkley to comply with information requests from the Committee on involvement with Supreme Court Justices.

In letters to all three, the Senators reject their separation of powers defense, citing existing law and the Supreme Court’s compliance with the laws.

“Your position is at odds with basic separation-of-powers principles favoring checks and balances and rejecting the ‘archaic view of the separation of powers as requiring three air-tight departments of government.’ Your argument is especially unreasonable in the government ethics context, given that the Judicial Conference is a creation of Congress, a number of longstanding judicial ethics-related laws have been passed by Congress, and the Supreme Court has adhered to those laws without complaint in multiple instances,” the Senators wrote in their letter to Leo.

In the letter to Leo, the Senators refute the idea that the Committee’s inquiry is “political retaliation,” a frivolous mischaracterization that ignores the realities of the undisclosed gifts in question.

“[Y]ou cite a list of conduct by other justices you claim has ‘been ignored.’ But all the conduct you cite was properly disclosed, whereas the Committee’s investigation focuses on the problem of undisclosed conduct. Specifically, the Committee has been examining how the current ethical framework governing federal judges fails to capture the full scope of previously undisclosed gifts, transportation, and lodging made available to Supreme Court justices by parties with business before the Court. As undisclosed gifts by wealthy benefactors continue to be revealed, one commonality in these reports is your connection to the undisclosed gifts from these benefactors,” the Senators wrote.

In the letter to Crow, the Senators also reject his proposal to provide only partial information to the Committee.

“Additionally, the ethical lapses of Supreme Court justices, including the well-documented undisclosed gifts that Justice Thomas has accepted from you over two decades, go well beyond five years … Receiving only partial responses during this arbitrary time period is insufficient to inform the Committee’s ongoing legislative efforts. Parties with matters before the Court continue to take advantage of access to justices made possible by both disclosed and undisclosed transportation, lodging, and other gifts,” the Senators wrote.

On May 9, Durbin led all Senate Judiciary Committee Democrats in a letter to Harlan Crow seeking information on gifts and travel given to Justice Clarence Thomas. The Committee received an inadequate response from a law firm representing Crow in response. On May 26, Durbin and U.S. Senator Sheldon Whitehouse (D-RI) sent a follow up letter to Crow refuting his reasoning for noncompliance, which received a clear, unwarranted refusal.

On July 12, Whitehouse and Durbin sent letters to Leonard Leo and Robin Arkley, among others. Leo and Arkley both submitted responses refusing to comply.

Full text of the letter to Harlan Crow is available here.

Full text of the letter to Leonard Leo is available here.

Full text of the letter to Robin Arkley is available here.

The information requests are part of Durbin’s and Senate Judiciary Committee Democrats’ pursuit for Supreme Court ethics reform.

In July, the Senate Judiciary Committee advanced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act to the full Senate. The bill would require Supreme Court Justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a Justice has a connection to a party or amicus before the Court, and require Justices to explain their recusal decisions to the public.

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

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