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Proposal for the Supreme Court to issue a code of ethics for itself faces backlash

AILSA CHANG, HOST:

Today the Senate Judiciary Committee voted along party lines to send to the Senate floor a bill that would require the Supreme Court to issue a code of ethics for itself. And while the idea of the Senate getting a bill through committee sounds fairly routine, the 3 1/2-hour markup that it involved was not.

Joining me now to talk about all of it is NPR legal affairs correspondent Nina Totenberg. Hey, Nina.

NINA TOTENBERG, BYLINE: Hi there, Ailsa.

CHANG: OK. So we know today's proceedings come while there's been a string of ethics revelations about various justices, including Clarence Thomas and Samuel Alito. And I take it the tone of the discussion today was not that friendly.

(LAUGHTER)

TOTENBERG: You would be entirely correct about that. In fairness, I should point out that the Judiciary Committee chairman, Dick Durbin, has been trying for 11 years to get the Supreme Court to write an ethics code for itself. And Republicans now see that as a threat to the conservative supermajority on the court. To be clear, while the court has for decades followed the financial disclosure provisions that apply to all federal judges, the justices are not bound by the other ethics provisions in federal law. For instance, the duty to recuse is up to individual justices.

CHANG: Right. OK. So Nina, remind us. What is in this bill?

TOTENBERG: Well, first, it would require the court to write an ethics code for itself based in part on the existing code for lower court judges. It would require the creation of a mechanism to investigate alleged violations of the code. It would require greater disclosure and transparency when a justice has a connection to a person or an entity or a group involved in a case. And it would require the justices to explain their recusal decisions to the public. Now, Republicans view these provisions as an attack on the conservative court by liberal Democrats. Here, for instance, is the ranking Republican on the committee, Lindsey Graham.

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSEY GRAHAM: This is a bill not designed to make the court stronger, more ethical. This is a bill to destroy a conservative court. This is a bill to create a situation where conservative judges can be disqualified by statute. It's a bill to rearrange the makeup of how the court governs itself. It's an assault on the court itself.

TOTENBERG: Now, Democratic Senator Sheldon Whitehouse replied that the bill before the committee is based on the existing judicial ethics law enacted by Congress.

(SOUNDBITE OF ARCHIVED RECORDING)

SHELDON WHITEHOUSE: Please. Let's not pretend that Congress can't make amendments to laws Congress has passed. Even the court has demonstrated it does not believe that canard. We are here because the highest court in the land has the lowest standard of ethics anywhere in the federal government.

TOTENBERG: And that prompted this from Republican John Kennedy.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN KENNEDY: This bill is dangerous, but it's unserious. This thing's dead as fried chicken on the Senate floor, and it's dead as fried chicken in the House. And maybe I'm naive. But I believe in my heart of hearts that if you did have the votes and you could pass this bill, which we all know would destroy the United States Supreme Court as an institution, you wouldn't do it.

CHANG: OK. I guess fried chicken is pretty dead. So clearly, the debate on this bill was highly spirited, to say the least. But why did it take more than three hours to get through committee?

TOTENBERG: The Republicans came armed with 61 amendments. And I'm just going to give you a sampling. Senator Marsha Blackburn wanted a provision that would bar implementation of the bill until the person who leaked the abortion decision is identified and publicly disclosed. Senator John Cornyn's amendment was to put into the law the right to carry a gun for federal judges, though as Senator Durbin noted, they already have that right now. Senator Tom Cotton wanted reporters who cover the court to certify under oath that they will not disclose any information about internal decision-making at the court. Durbin observed that just might be a problem for the First Amendment guarantee of a free press. And Senator Kennedy proposed an amendment to condemn what he said were the racist things said about Clarence Thomas. There was then a compromise, and the language was added to the bill to condemn racism against any justice.

Now, in short, if the Democrats know that this bill is going nowhere, which they do, then I suppose you could say this is unserious because there is a filibuster, after all, and they can't get past that. But the Republicans today wanted to talk about anything, absolutely anything other than judicial ethics.

CHANG: That is NPR's Nina Totenberg. Thank you so much, Nina.

TOTENBERG: Thank you, Ailsa. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.