Supreme Court: Are New Ethics Rules Needed as Gorsuch, Roberts & Thomas Face Questions over Finances?
Written by GRB on 04/05/2023
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We begin today’s show looking at the growing corruption scandal on the Supreme Court. On Tuesday, the Senate Judiciary Committee held a hearing on Supreme Court ethics reform, following recent revelations about conservative Justices Clarence Thomas, Neil Gorsuch and Chief Justice John Roberts. Senate Judiciary Chair Dick Durbin had invited Roberts to testify, but the chief justice declined the invitation.
Democratic lawmakers have intensified their push to pass a Supreme Court ethics bill, after ProPublica revealed Clarence Thomas had failed to report frequent luxury trips paid for by the Republican billionaire Harlan Crow. For more than two decades, Thomas frequently joined Crow aboard his private yacht, jet and at his private estates. Thomas also failed to disclose that he had sold property to Crow, including a home where Thomas’s mother now lives rent-free.
Meanwhile, Politico has revealed Justice Neil Gorsuch sold 40 acres of property, just days after his Senate confirmation, to the head of one of the nation’s largest law firms, which has since had 22 cases before the Supreme Court.
And Business Insider reports the wife of Chief Justice John Roberts has been paid over $10 million as a job recruiter for placing lawyers at elite law firms, including some that have had cases before the court.
There are also questions about the finances of Clarence Thomas’s wife, the right-wing activist Ginni Thomas.
Senate Judiciary Chair Dick Durbin opened Tuesday’s hearing by talking about Justice Thomas.
SEN. DICK DURBIN: Last month we learned about a justice who for years has accepted lavish trips and real estate purchases worth hundreds of thousands of dollars from a billionaire with interests before the court. That justice failed to disclose these gifts, and has faced no apparent consequences under the court’s ethics principles. That justice claims that lengthy cruises aboard a luxury yacht are personal hospitality and are exempt under current ethical standards from even being reported. The fact that a Texas billionaire paid more than $100,000 for a justice’s mother’s home also seems to be an acceptable example because the justice insists that he lost money in the transaction. How low can the court go?
AMY GOODMAN: Joining us in Arlington, Virginia, is Ian Millhiser, senior correspondent at Vox, author of the book The Agenda: How a Republican Supreme Court Is Reshaping America.
Ian, welcome back to Democracy Now! Why don’t we just go through one scandal after another, and the fact that the chief justice, who is also being looked at for his wife’s $10 million that she made headhunting for law firms, many of them that have argued before the Supreme Court? Go through each of them and the fact that Chief Justice Roberts refused to testify.
IAN MILLHISER: Sure. So, you know, the biggest scandal here, I mean, the one that really should crystallize the mind, is what’s going on with Clarence Thomas. You know, this guy has accepted tens of thousands of dollars — by now hundreds of thousands of dollars — of gifts from a politically connected Republican donor for more than two decades. We have known about this for a long time. I mean, the earliest reporting I found about Thomas accepting gifts from Harlan Crow was a 2004 report in the L.A. Times about him accepting a $19,000 Bible. So, this is not acceptable. No employee of the federal government, that I’m aware of, is allowed to accept these kinds of gifts. If Thomas was in the House, if he was in the Senate, if he was in the White House, if he was anywhere else in government, this would not be allowed. If he was a lower court judge, this would not be allowed. And frankly, he should resign over this.
The other scandals, I think, show that the court is being very dumb by not having an ethics code. So, if you look at what happened with Neil Gorsuch, Gorsuch sold a plot of land. He sold the plot of land to someone who is a lawyer that runs a law firm that practices in front of the Supreme Court. If the court had an ethics code, there’s a way to do that transaction in a way that’s above board. You’d want an outside regulator or someone to look at the transaction, make sure it was at arm’s length, make sure it was fair market value, make sure that the buyer didn’t know who the seller was, the seller didn’t know who the buyer was. You know, there are ways that you can set up an ethics code so that justices can go about their business. But because they don’t have an ethics code, you don’t know whether they’re doing things in an above-board way. You don’t know — you know, they have no way to defend themselves when they get caught doing something like this. And suddenly, you know, the Roberts and Gorsuch incidents, I think, are much less serious than what happened with Clarence Thomas, but every scandal starts to look egregious, like what you have with Justice Thomas.
AMY GOODMAN: And explain also, with chief justice himself and how, obviously, he’s personally profiting because Jane Roberts is his wife, but the significance of this $10 million, actually more than that.
IAN MILLHISER: Right, yeah. So, Jane Roberts works as a legal recruiter. She works as, apparently, a very high-level legal recruiter, who helps firms that want to hire a lawyer find, you know, good lawyers, probably very specialized lawyers, that they can hire. And she’s made a lot of money doing this, you know, more than $10 million over the last several years.
Again, this is why the court needs an ethics code. I mean, you can imagine a situation where she had a law firm that was hiring our mergers and acquisitions partner. Law firms do this work all the time, where, you know, there’s one thing going on in one part of the firm that could create a conflict of interest relating to another part of the firm, and so you wall that off. If the Supreme Court had an ethics code, they could put in rules in place to make sure that the justices’ spouses can have their careers, but they are walled off in ways that do not impact the justices themselves.
But the court doesn’t have an ethics code. So, again, first of all, we have no way of knowing what’s going on here. Second of all, you know, there aren’t any formal checks in place to make sure that Jane Roberts’s work isn’t influencing what John Roberts does. And third, you know, because Roberts can’t point to any kind of code that he has followed, there is no way for him to defend himself when something like this arises.
AMY GOODMAN: And then, back to Clarence Thomas and his wife Ginni, how is it possible that he doesn’t recuse himself on, for example, an insurrection ruling, which she’s so been deeply implicated, everything from text messages with Trump’s Chief of Staff Mark Meadows, pushing states to overturn their elections?
IAN MILLHISER: Yeah, I mean, the thing with Clarence Thomas, he just doesn’t think the rules apply to him. I mean, that’s been true. If you look at his rulings, you know, he doesn’t believe in following precedent. He is perfectly fine with sweeping aside 80 years of law if he likes the way that it was done in 1918 better. He doesn’t think the rules apply to him. He doesn’t think the ethics rules apply to him.
And the court has said, fairly consistently, that it’s up to each justice to decide when they want to recuse. You know, the court has said that because they say they don’t with the other eight justices to remove other justices from cases, and that could change the outcomes. But again, the alternative is that you have Clarence Thomas ruling on all these cases where he or his family presents a fairly clear conflict of interest, and nothing can be done about it, because the only way to discipline a justice is through impeachment, and that requires 67 votes in the Senate. That requires 16 Republican senators to vote to remove Clarence Thomas from office. And, you know, that’s just not happening. Republicans have rallied behind Thomas.
AMY GOODMAN: I want to go to Republican Senator Ted Cruz of Texas defending Clarence Thomas’s actions.
SEN. TED CRUZ: Well, if that’s the standard, going and traveling and being paid for by others, then guess what. Just about every Supreme Court justice has done so, and done so in much greater numbers. Justice Thomas was appointed in 1991. In the time since then, he has taken 109 reported trips, five international trips. Justice Ruth Bader Ginsburg was appointed in 1993, two years later. In the time she was on the court, she took 157 trips, including 28 international trips. Mr. Payne, yes or no, do you think Ruth Bader Ginsburg was corrupt?
KEDRIC PAYNE: No.
SEN. TED CRUZ: Nor do I.
AMY GOODMAN: That clip ended with Ted Cruz questioning Kedric Payne of the Campaign Legal Center, who testified at Tuesday’s hearing. Talk about the significance of this, and then, I mean, what kind of ethics code you think should be put in place for the Supreme Court. Aren’t federal judges now extremely angry around the country? They have much stricter rules.
IAN MILLHISER: Right. Yeah. Well, to respond directly to Ted Cruz, the standard is not that you can’t get reimbursed when you travel somewhere. You know, if a university wants to bring Justice Ginsburg or Justice Thomas, for that matter, to give a talk at that university, they’re allowed to pay for the justice’s flight and hotel room. That’s just a reimbursement, so the justice isn’t left to pay for a trip when they’re doing a favor for another institution. That’s fine.
What happened with Clarence Thomas isn’t that he is going to a university, giving a speech and getting his plane ticket paid for. What happened with Clarence Thomas is that he went on a lavish vacation to Indonesia, where he was flied on the private plane of a billionaire, you know, a very politically connected billionaire, and then he took his vacation on the billionaire’s superyacht.
And, you know, if Ted Cruz can’t tell the difference between being reimbursed for a work trip and having a lavish vacation paid for by this billionaire, I mean, I don’t even know how we can have a conversation with someone who doesn’t understand the distinction between those two things.
AMY GOODMAN: And finally, as I mentioned federal judges, what kind of restrictions they have to abide by, I also wanted to ask you, speaking of the appointment of judges, about the growing calls for Senator Dianne Feinstein, the chair [sic] of the Judiciary Committee, to resign. Representative Alexandria Ocasio-Cortez recently said, quote, “Her refusal to either retire or show up is causing great harm to the judiciary — precisely where repro[ductive] rights are getting stripped. That failure means now in this precious window Dems can only pass GOP-approved nominees.”
IAN MILLHISER: Yeah.
AMY GOODMAN: Talk about what’s going on. I mean, we’re not just talking about shingles here.
IAN MILLHISER: Right, yeah. I mean, Dianne Feinstein is probably in the final years, or, if not in the final years, quite possibly in the final weeks or months of her life. She is ill. And her illness seems to prevent her from doing her job. And the concern is that, first of all, because she’s on the Judiciary Committee, her vote is needed to vote nominees out of the Judiciary Committee. There is a process, I believe, to discharge a nominee who does not get a Judiciary Committee vote, but it’s very time-consuming. It also means that on the floor, you know, with that 51st senator there, Democrats need either Kyrsten Sinema or Joe Manchin to vote for something if they want to pass a bill, if they want to confirm a nominee. Without Dianne Feinstein, they need both Sinema and Manchin. So they have to appease these two rather conservative members of this caucus who have idiosyncratic views. You know, Sinema tends to disagree with the Democratic Caucus in different ways than Manchin, and so it’s not always easy to wrangle both of them.
So it’s a serious problem that there is this seat that is essentially vacant right now. It’s the California seat. It’s the most populous state in the union, and it only has half as many senators as it should right now. You know, I mean, I think that the calls for Dianne Feinstein to resign are well founded at this point. You know, she has had a tremendous career, but the most important thing isn’t that Dianne Feinstein gets to die knowing that she died a senator. The most important thing is that the people of California have representation.
AMY GOODMAN: Finally, what rules should be put in place, Ian, for the Supreme Court?
IAN MILLHISER: So, the rules would have to be really — some of the rules would have to be really complicated. I mean, some of them would be very simple. I think a simple rule, you know, you could do something like what the House of Representatives does, which says that if you accept a gift of more than $250, first of all, it would need to come from a personal friend or something like that. And second of all, some sort of body needs to review it to make sure that the gift isn’t in some way corrupting.
And then you’re going to have to have — you know, where it gets complex is you have to have serious conversations about, “OK, what if the justice has a spouse with their own career? How do we make sure that the justice’s work is walled off from their spouse so that one doesn’t influence the other?” You have to ask questions like, “OK, if there’s something like this land transaction with Neil Gorsuch, how do you make sure that an outside body reviews it to make sure that the transaction is at arm’s length, that the transaction was at fair market value, and that the justice wasn’t in some way enriched by whatever the transaction was?”
So, you know, it’s going to have multiple pieces to it. But again, the biggest crisis right now is that you have a justice accepting all of these lavish gifts from a billionaire, and whatever the rules say, that can’t possibly be allowed.
AMY GOODMAN: Well, I want to thank you, Ian Millhiser, for joining us, senior correspondent at Vox, author of the book The Agenda: How a Republican Supreme Court Is Reshaping America. And a correction: It’s not Dianne Feinstein who’s chair of the Judiciary Committee; it is Dick Durbin.
Coming up, we look at the growing debate in Washington over raising the debt ceiling. Stay with us.