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Good morning!☕️

The Senate Judiciary Committee is about to begin its post-Clarence-Thomas-ethics-scandal hearing on Supreme Court ethics reform.

Dick Durbin really wants bipartisan action.

Only one GOP senator has proposed doing anything at all. www.huffpost.com/entry/republicans-supreme-court-ethics-code-clarence-thomas_n_644ac46de4b0d840388d8c...
This could be a wild hearing.

Clarence Thomas just got caught failing to disclose hundreds of thousands of dollars in luxury gifts from a GOP megadonor. John Roberts declined Durbin's request to testify. Public confidence in SCOTUS is at a historic low.

I'll be live tweeting.
A thing some people don't know is that the Supreme Court has never had a formal code of ethics.

Every federal judge in the country has been governed by a written code of conduct since 1973.

Except the nine justices on the nation’s highest court. They’ve never had one.
"We're here today because the Supreme Court of the United States does not consider itself bound by these rules," says Durbin, kicking off the hearing.
John Roberts declined Durbin's invite to testify by citing separation of powers concerns.

The reality is sitting justices have testified in 92 congressional hearings since 1960, says Durbin.
Durbin says he's "troubled" by Roberts' suggestion that him testifying would infringe on separation of powers.

Thomas "has faced no apparent consequences" for accepting luxury trips every year for 20+ years from a billionaire + not disclosing them.

"How low can the court go?"
"The Supreme Court won't even acknowledge its' a problem," says Durbin.

"The highest court in the land shouldn't have the lowest ethical standards."
Lindsey Graham frames the GOP's approach to today's hearing:

There is "a concentrated effort by the left to delegitimize the court and to cherrypick examples to make a point," he says.
Democrats want to destroy Clarence Thomas' reputation, says Graham.

"That's sort of what we're here about."
"This assault on Justice Thomas is well beyond ethics," says Graham. "It's about trying to delegitimize a conservative court that was appointed through the traditional process."

(Somewhere, Merrick Garland: LOL okay)
Sen. Sheldon Whitehouse (D-R.I.) says this hearing is happening because SCOTUS "is playing out of bounds of the rules for federal judges."

"When they get caught out of bounds, they refuse to allow any investigation of the facts."
Whitehouse has a bill that would create a code of ethics for SCOTUS justices. It would result in better enforcement, better recusal rules and better disclosure rules, he says.

It's time to give the court a code because "the court has conclusively proven it cannot police itself."
Sen. John Kennedy (R-La.) already using the "high-tech lynching of Clarence Thomas" language.

He says Dems "aren't getting their way, so they want to change the rules."
"Some Democrats want Congress to override the Supreme Court and apply rules to its justices," says Kennedy.

"The constitutional separation of powers means that no branch of the fed government can dictate how another should govern itself."

About that....
Caroline Fredrickson, a Georgetown Law professor and senior fellow at the Brennan Center for Justice, told me it's nonsense to claim that lawmakers would be overstepping if they pushed through ethics reforms for SCOTUS.

“Read the Constitution, folks." www.huffpost.com/entry/republicans-supreme-court-ethics-code-clarence-thomas_n_644ac46de4b0d840388d8c...
“Congress is responsible for creating the jurisdiction for SCOTUS + Congress creates the lower courts," Fredrickson told me. "Its a really self-serving argument that the court makes that somehow there’s this incredible separation of powers issue for Congress to intervene at all."
Fredrickson, who also served on Biden’s Commission on the Supreme Court, said the fact that GOPers aren't focused on ensuring that SCOTUS obeys the most basic of ethics laws and has a code of ethics only underscores the problem here.

“A judiciary that is acting with impunity.”
The million dollar Q is why doesn't the Supreme Court have a formal ethics code?

“When [the Judicial Conference] adopted it for the lower courts, it just didn’t seem so vital for the Supreme Court,” Fredrickson said. “We really do see a vital need now.” www.huffpost.com/entry/republicans-supreme-court-ethics-code-clarence-thomas_n_644ac46de4b0d840388d8c...
Former U.S. attorney general Michael Mukasey is testifying now. If you don't look at him and only hear him talking, he sounds like George Clooney.

It's weird, try it!
Anyway-- Senate Republicans I've talked to about Congress creating a code of ethics for SCOTUS raised concerns about separation of powers.

Fredrickson laid out why that's just wrong. Congress has plenty of roles to play in how the court functions. www.huffpost.com/entry/republicans-supreme-court-ethics-code-clarence-thomas_n_644ac46de4b0d840388d8c...
Congress has the constitutional authority to impeach judges. And to approve SCOTUS' budget. And to expand the size of the court.

Court expansion is “an existential need” to many people at this point," she said.
Some Republican senators I talked to -- who were resistant to imposing ethics rules on SCOTUS -- didn't seem to know that SCOTUS doesn't have a formal code of ethics.

“They do,” said Sen. Cynthia Lummis (R-Wyo.). “Well, not a code. They have what we have, right?

(No.)
“They do that now,” Sen. Chuck Grassley (R-Iowa), the former chair of the Judiciary Committee, told me when I asked about passing a bill to make SCOTUS create a code of ethics for itself.

“They just did it on March 7. What more would you do?”

(They did not just do this.)
Grassley was conflating (grumpily, I might add) the creation of a formal ethics code for SCOTUS with a new rule put in place last month by a Judicial Conference subcommittee that tightened gift disclosure rules for justices.

Not the same thing!
Witnesses giving opening remarks. Lotta stats, history, constitutional thoughts, flowery language about justices, laws, etc.

"There is no room to debate that the Supreme Court has the weakest ethics rules in federal government," says Kedric Payne of the Campaign Legal Center.
Lisa Murkowski is the lone GOP senator who has proposed doing anything to pass SCOTUS ethics reforms.

She intro'd a bill last week that would do the bare minimum: require SCOTUS to come up with its own code of ethics and make it publicly accessible on the court's website.
She says her bill isn't about Thomas' ethics scandal but about restoring public trust in SCOTUS, which is at a historic low.

"I like Harlan Crow. I like Justice Thomas,” she told me. “I don’t view this as going after Justice Thomas or picking on anybody.” www.huffpost.com/entry/republicans-supreme-court-ethics-code-clarence-thomas_n_644ac46de4b0d840388d8c...
Amanda Frost, a UVA School of Law prof, now testifying about congressional authority and SCOTUS.

"The separation of powers argument confuses me," she says of the idea that Congress doesn't have a role in SCOTUS operations.

"Checks and balances is equally important."
"The role of the Congress is to establish the Supreme Court," says Frost. "It's not just permitted, it's required."

There are no details in the Constitution about how to operate SCOTUS, she says. That's left to Congress in Article I, Section 8.

"Congress agreed to do that."
Graham acknowledged SCOTUS has a lower ethical threshold than other branches of govt, but says he thinks the court needs to deal with this itself.

"What I would urge the court to do, take this moment to instill more public confidence."
Omg Graham is bringing up the progressive judicial advocacy group Demand Justice, asking witnesses if they know of them. None of them do.

More free press for @brianefallon!
"Are you aware that they spent over $1 million in ads pressuring Justice Breyer to resign?" asks Graham.

Nobody knew. Not that this is relevant to this hearing.

The Judicial Crisis Network spent $10M for Gorsuch's nomination and more than $3M for Kavanaugh's nomination. So....
Thomas' scandal is what led to today's hearing. But other justices are benefitting from the court not having a formal code of ethics.

Neil Gorsuch, for one, failed to disclose he sold property for $1.8M to the chief exec of a law firm with business routinely before the court.
Then there's all the trips that SCOTUS justices — appointed by presidents in both parties — have taken all over the world paid for by private entities who may have business before the court and have influence over those justices in related cases. www.opensecrets.org/news/2019/06/scotus-justices-rack-up-trips/
Grassley says today's hearing is just Dems trying to "smear justices who are implementing a liberal agenda that they can't ram through Congress."

Weak argument. Not just b/c SCOTUS having no ethics code is clearly a problem, but also b/c Dems never ram anything through Congress!
John Cornyn is now playing a 1991 clip of Clarence Thomas' confirmation hearing where he denies Anita Hill's sexual harassment allegations against him.
"I am here for my name," Thomas says in the 1991 clip. "My life, and my integrity."
Does this... help Thomas to do this??
"That was 32 years ago," Cornyn says. "It provides important context for today's hearing."

He says it's proof that SCOTUS justices have been "subject to relentless campaigns of harassment and intimidation."
Mike Lee is up.

Let's see if he asks any questions versus just talking the whole time.
Lee lavishing praise on Clarence Thomas, "a Black man who happens to be conservative."
And... no Qs from Mike Lee. Called it.
Sen. Richard Blumenthal (D-Conn.) says it's time for a Justice Dept investigation of Clarence Thomas.

"Because there are allegations of criminal wrongdoing here, violations by Justice Thomas of the disclosure laws."
Blumenthal says he's talked to several judges who are "livid" that SCOTUS justices aren't being more assertive about complying with an ethics code because it taints the judiciary as a whole.

"Judicial malpractice" that John Roberts wouldn't testify today, he says.
Ted Cruz is up, with his performative outrage.

Practically shouting about Dems and "this attempt to delegitimize this court."

The thing is, SCOTUS justices -- without an ethics code and doing unethical things -- are doing a fine job of fueling public disapproval of the court.
"What is so hard for our Supreme Court to adopt a code of ethics?" asks Sen. Mazie Hirono.

"Frankly, I can see why the public has severe questions about the confidence that they have in our Supreme Court."
This hearing is winding down.

It's clear that Senate Republicans don't want to take any action relating to creating a formal code of ethics for Supreme Court justices, not even requiring them to create one for themselves.
We watched all three and a half hours so you didn't have to.

The GOP's collective response to Clarence Thomas' ethics mess and the glaring problem with the Supreme Court not having a formal code of ethics?

¯\_(ツ)_/¯

www.huffpost.com/entry/scotus-ethics-clarence-thomas_n_6451572ee4b0bc1dad79bce9
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