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Democrats push for a code of ethics for the Supreme Court in hearing

SACHA PFEIFFER, HOST:

Supreme Court ethics reform was the subject of a Senate Judiciary Committee hearing today. The avowed purpose of the Democrats was to get the Supreme Court to write a code of conduct for itself or, absent that, for Congress to write one. The avowed purpose of the Republicans was quite different. We're joined now by NPR legal affairs correspondent Nina Totenberg here in the studio.

Hi, Nina.

NINA TOTENBERG, BYLINE: Hi there.

PFEIFFER: What were the biggest takeaways from today's hearing?

TOTENBERG: Well, the impetus for this hearing was the fact that in recent weeks and months, there have been a series of news reports about Supreme Court ethics. One category has alleged outright violations of financial disclosure rules that apply to all federal judges, including Supreme Court justices. The other category of story has focused on activities of various justices that range from the completely appropriate, like four of the conservative justices teaching at George Mason University, to inappropriate behavior under the Judicial code of conduct.

PFEIFFER: But the Supreme Court says it is not bound by that code of conduct.

TOTENBERG: Correct. So that's what this hearing was all about. It was an attempt by the Democrats to prod the justices into either writing their own code of conduct or, if not, to start paving the way for Congress to write one for them. So here, for instance, is the Democratic chairman, Dick Durbin.

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DICK DURBIN: It is critical to our democracy that the American people have confidence that judges cannot be bought or influenced and that they are serving the public interest, not their own personal interest.

TOTENBERG: Now, the problem today was that the Republicans viewed this effort as an attack on the new conservative Supreme Court supermajority. So here's the ranking Republican on the committee, Lindsey Graham.

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LINDSEY GRAHAM: We can talk about ethics, and that's great. But we're also going to talk about today of a concentrated effort by the left to delegitimize this court and to cherry-pick examples to make a point.

TOTENBERG: And from there on, we were off to the races, with the Republicans accusing the Democrats of everything from having a double standard on ethics, what Graham called selective outrage, to accusations that the Democrats are actually encouraging assassination attempts against conservative justices. It was such an aggressive display that I have to say, Sacha, the Democrats seemed kind of shellshocked.

PFEIFFER: The - there were no Supreme Court justices at this hearing. But what did the witnesses say?

TOTENBERG: Well, federal Judge Michael Mukasey basically said - former federal judge - said that Congress is powerless to act, but others disagreed. University of Virginia professor Amanda Frost, who specializes in constitutional law and judicial ethics, distinguished between Congress' power to write laws for the administration of the Supreme Court, including a code of ethics, as opposed to its lack of power to interfere in the court's judicial decision-making. Here she is.

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AMANDA FROST: For over 230 years and for as long as the Supreme Court has existed, Congress has regulated vital aspects of its operation, including its ethical obligations.

TOTENBERG: Jeremy Fogel, a former federal judge who served as chairman of the Financial Disclosure Committee of the U.S. Judicial Conference, was quite emphatic about the need for the court itself to have some internal mechanism for checking ethical obligations. Under the current system, he said, ethical questions are, quote, "kind of a black box."

(SOUNDBITE OF ARCHIVED RECORDING)

JEREMY FOGEL: They have a lot of sources and rules that they follow, but no one really knows what they are.

PFEIFFER: So why doesn't the court do something on its own? Because you would think it would care about public perception that shows that trust in the court is failing.

TOTENBERG: I'm sure there's a diversity of views among the justices, but at this point, it appears that a critical mass of them feels misunderstood, and they think they can just tough this out.

PFEIFFER: NPR's Nina Totenberg. Thank you.

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

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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.
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