Preet Bharara:
From CAFE and the Vox Media Podcast Network, this is Stay Tuned in Brief. I’m Preet Bharara. Today we’re going to return to an important topic, the ethics of Supreme Court Justices. Last year, Justice Clarence Thomas resisted calls to recuse himself from cases relating to the 2020 election, even though his wife, Jenny Thomas, had worked closely with the Trump White House to try to overturn Joe Biden’s victory. And in recent months, other justices have faced questions over potential conflicts of interest, but there is little room for oversight. Why is that? Because Supreme Court Justices are the only federal judges not bound by a formal enforceable code of ethics. My guest this week is Senator Sheldon Whitehouse of Rhode Island. He’s trying to change that. Senator Whitehouse is the chair of the Senate judiciary subcommittee on the courts, and he has just introduced a bill call the Supreme Court Ethics Recusal and Transparency Act. Senator, welcome to the show.
Sheldon Whitehouse:
Thanks, Preet. Good to be with you again.
Preet Bharara:
So let’s start with the basics. Can you explain how it can be that federal district court judges and appeals court judges basically every federal judge in the country, but for the nine on the Supreme Court is subjected to a formal enforceable code of ethics. How can that be?
Sheldon Whitehouse:
It makes no sense. I think it has to do with the fact that for many years the Supreme Court pretty much stayed out of ethics trouble, so this was not a very salient issue. That obviously has changed. They also have to deal with the fact that as the Supreme Court, they view themselves as answering to no one but themselves.
Preet Bharara:
Oh Supreme, in other words.
Sheldon Whitehouse:
Supreme. And while that obviously applies to their legal judicial determinations, it doesn’t mean that they couldn’t set up a mechanism where, for instance, all the chief judges of all the circuit courts got together to render opinions about whether or not conduct of Supreme Court justices violated the ethics rules that they all have to live by. So there are solutions available, they’ve just chosen not to go there.
Preet Bharara:
Could you give us some examples of the kinds of things that a Supreme Court justice can, for want of a better phrase, get away with that a lower court judge could not?
Sheldon Whitehouse:
So here are some pretty obvious ones. The question of whether Justice Thomas should have recused from the January 6th case after the case was over, is no longer a live question of recusal, it’s only a question of ethics. And so if you have a complaint about it, one of the problems with the Supreme Court is that they don’t have a window or an inbox where you can deliver a complaint. And even if they did have a window or an inbox where you can deliver a complaint, they have nobody to look at it and no process for investigating it and no way to take statements and do the ordinary work of ethics investigation, and then of course at the end, no process for disclosure.
So the question of Thomas’s recusal ended up as a fact question. It was brooded about that he did not have to recuse himself because he knew nothing of his wife’s activities in the insurrection attempt. That’s a fact question. And as you well know, fact questions lend themselves to investigation. What did he know, and when did he know it? And yet no investigation was undertaken. Similarly with the recent allegations about justice Roberts’s spouse’s work with law firms that appear before the court, similar with the whining and dining program of the justices that Mr. Shank blew the whistle on. In every case, it runs up against the stonewall of the Supreme Court’s unique indifference to ethics concerns.
Preet Bharara:
So I want to get to the bill that you and others have introduced to try to remedy this problem in a moment. But in fairness to the Supreme Court, or maybe not, you’ll tell us, it’s my understanding, and it has been reported, that the Court has been trying to deliberate over a code of ethics that they would impose on themselves. What do you know about that effort? Is it a real effort? Is it a sincere effort? Is a doomed to fail?
Sheldon Whitehouse:
It’s impossible for me to look into the minds of the justices and figured this out, and I don’t even frankly know exactly what took place. I’ve seen the reporting that said over years they have had intermittent discussions about this. Clearly they have never produced anything, whether they were ever intended to produce anything is a whole separate question into which I have no visibility. But at the end of the day, whatever they’re doing groping around with this issue really doesn’t matter. They remain the only agency of government in which there is no mechanism for a challenge to the behavior of any of the members to be reviewed. And that’s not just all the other judges, that’s everybody in Congress, that’s all the senior federal executive officials, that is across the board. And as you can imagine, just from what I’ve said, it’s pretty much impossible to justify.
Preet Bharara:
The only mechanism you have. And you have this mechanism obviously well in your mind, but it’s rare, is impeachment.
Sheldon Whitehouse:
Correct. It’s a peculiar thing. Because the court has become so partisan and has become such a special interest delivering court, it makes it virtually impossible to impeach them because the same political forces that constructed this court are also supporting the Republicans who’d have to vote in favor of the impeachment of the justices who are delivering for their donors. So we’re in kind of a box canyon politically trying to have impeachment be a resolution. So really we have to work legislatively to try to solve the underlying problem.
Preet Bharara:
So when you work on something legislatively, it becomes a political question, and I guess the question I have for you is what’s the political landscape here? You would think that ethics reform of the Supreme Court would be a bipartisan issue. How much bipartisan support is there for some reform?
Sheldon Whitehouse:
I think it depends on where you’re going. I think that if we’re focusing on, for instance, the gifts of hospitality reporting by the justices, there is plenty of room for bipartisanship, and indeed Republican Senator and judiciary committee ranking member Lindsey Graham has repeatedly publicly announced his appetite for such measures. When you move on to more aggressive ones, things like term limits and so forth, anything that disrupts the hold of the far right on the court obviously then creates a lot more political blowback. So I think it will vary across the methods that we apply.
Preet Bharara:
Does the fact that the court is six three conservative to progressive have any bearing on the politics of this? Even when you’re talking about straight ethics?
Sheldon Whitehouse:
It has every bearing on the politics of this. And I would make the point that the politics of this are not driven by these judges, the six of them being so-called conservative. I think you have to put that word in quotation marks when talking about them because many of their most offensive decisions have been anything but conservative as that term is used in the judicial context. It violated all sorts of conservative judicial doctrine to decide these cases the way they were decided. What they are in my view is judges who’ve been captured by special interests who controlled the appointment process, and that makes it really political. It’s much more political in that guise than when it’s just a bunch of judges who happen to be conservatives.
Preet Bharara:
So let’s talk about the bill you introduced, the Supreme Court Ethics Recusal and Transparency Act. First, who’s on it and what does it purport to do?
Sheldon Whitehouse:
We have launched it with Chairman Johnson, who is my coordinate in the House as the lead Democrat on their judiciary court’s subcommittee, and we are building co-sponsors as we go. And its purpose is to do what the title says, to build in more transparency, impose an ethics code and a means of making investigative determinations and then enforcing them, and then dealing with the problems of recusal and hospitality.
Preet Bharara:
Now, does the bill prescribe rules itself or does it leave in some measure those matters up to the court to figure out and adopt?
Sheldon Whitehouse:
It leaves the court a huge 180-day opening to go ahead and do what it should’ve done.
Preet Bharara:
So if they’ve not been able to do it yet, do you think the stick of this bill, if it got enacted, would be sufficient to get them to act in 180 days?
Sheldon Whitehouse:
I certainly hope so, and I suspect that if they embarked on what looked to the world like a good faith process into which there was some transparency and that promised some form of outcome, that the enforcement of the 180 days would be postponed. I do think that they are going to take some outside pressure to do this because clearly their own internal pressure has failed so far and I think it’s very appropriate for Congress to apply that external pressure and if necessary apply the rules.
Preet Bharara:
You said a minute ago, and I respect this, that you don’t know that you want to get into the minds of Supreme Court justices, but I’m going to ask you to do it again and ask if you have any inkling as to where the log jam might be and how much of a log jam there is? Do you think it’s Clarence Thomas who’s objecting to some things given the scrutiny that’s been brought to bare on his wife and his lack of recusal? Or do you not know?
Sheldon Whitehouse:
I am hearing things second and third hand, but it is my sense that Justice Roberts would like to find a solution to this because he is an institutionalist and sees the bad trajectory that the court is on, and that at various times he has tried various measures to try to constrain the court in various ways from some of its more ardent political behavior, but that Justice’s Thomas and Alito in particular have been a powerful opposing force to deter any form of oversight or accountability.
Preet Bharara:
So some pressure I think is being brought to bear, not just by Congress, but the American Bar Association has done something sort of unusual just in the last few weeks, it has come out and made a statement demanding that the Court adopt a code of ethics. Is that significant in your mind?
Sheldon Whitehouse:
Yeah, I think it is significant and frankly even closer to home. Two issues that I’ve been pressing the Court on, on which they more or less blew me off, one was the disclosure of gifts of hospitality, and the second was the disclosure of who is really behind amicus briefs filed by front groups. That just crashed and burned at the Court on that, they couldn’t have had less interest. But the judicial conference, which as you know is the administrative body that supervises the court administratively and has all of the US Circuit chief judges and other judges appointed to it and is chaired by Chief Justice Roberts, has taken up both of those issues and appointed special committees to look into them. So I think there’s a little bit of a revolt brewing within the judiciary as well as within the Bar, and I think that revolt brewing within the judiciary may even be more impactful on these justices.
Preet Bharara:
So when are you going to pass this bill, sir?
Sheldon Whitehouse:
We will see. We got some work to do.
Preet Bharara:
Oh, that’s your way of saying stay tuned, I think.
Sheldon Whitehouse:
Stay tuned. You start with… first, you do the bill and you’ve got co-sponsors and then you hold hearings.
Preet Bharara:
Oh, I know there’s a whole cartoon about that.
Sheldon Whitehouse:
And you dig into it and on you go. And then ultimately with any luck you pass the bill. But I think making the case for the need for reform goes a long way to provoking the reform that is due.
Preet Bharara:
If I may, since I have you, and we’re talking about the Supreme Court, putting aside your bill for a moment, I know the answer to this question, but I want you to give the answer to our listeners. What was your reaction to the Supreme Court’s report on the leak of the Dobbs opinion?
Sheldon Whitehouse:
You’ve been a US attorney in very big jurisdictions. I’ve been a US attorney in little Rhode Island. We’ve both done lots of investigative work and there were a few things that kind of stood out in that. One is having a little sidecar attached to the investigation with somebody who would say “This was a good investigation. This was a good investigation.” That never happens in real investigations and the fact that the individual in the sidecar who I generally admire had conflicts of interest both with suspects, members of the court, and with the court itself as a person with contracts with the court, made all of that weirder still.
Preet Bharara:
We should make clear who that is, that’s Michael Chertoff.
Sheldon Whitehouse:
Michael Chertoff.
Preet Bharara:
Former US attorney, former third circuit judge.
Sheldon Whitehouse:
Yeah, and a perfectly able guy, but what the hell? Why do you add this sidecar to the investigation if it’s supposed to stand on its own merits? And why do you pick somebody who has pretty blatant conflicts of interest? So I don’t fault Michael Chertoff in all this, I think was a really dumb decision by the Court. The other thing that really stood out was in the opening second sentence, in the very opening phrases of the Supreme Court’s announcement of the investigation, it hypothesized that the motive was some effort to object to the underlying Dobbs decision. It said this was no mere misguided effort to object, or words to very similar effect.
And so it’s really peculiar when you can’t identify who the leaker was to impute to the unfound leaker a motive, and it’s particularly weird when you impute a motive that would only pertain to the democratically appointed so-called liberal chambers. So that seemed like a very loaded thing to put into a supposedly neutral report when you consider that a perfectly good alternative motive would be to lock in wobbly, conservative so-called justices so that anybody who went south and demanded a softer opinion would be outed by the discrepancy between the ultimate decision and the leak. So the fact that they chose a motive, imputed that motive to the unknown individual and chose a motive that was really only ascribable to three chambers in the Court just seemed way out of line.
Preet Bharara:
Do you think that someone should undertake a do-over?
Sheldon Whitehouse:
It’s really hard to know what the solution is to this now. I mean, I think part of the problem is that they’re not good at this stuff. They don’t do it. They don’t have a procedure for doing this. They don’t have people who are good at it. There is no means for doing a proper investigation when it involves a justice. So I think a single do-over on this particular issue misses the point, which is that we need a system just like every other federal official ha, so that if you have an ethics objection or concern, there’s a place to file it. There’s somebody who will read it, there’s an independent investigation, and there’s a report at the end based on actual facts. That oughtn’t to be asking too much. That’s where we are.
Preet Bharara:
Last question relating to the courts, and I ask it in part because of your position as chair of the subcommittee on the courts, and because last week on this very podcast we talked about the continuing controversy over blue slips and whether or not Democrats, while they’re in power in the Senate, will do away with blue slips for federal judges and other nominees. Do you have a view on that?
Sheldon Whitehouse:
My view is that this is one of those issues that is best resolved by informal negotiation between the chair and the ranking member on judiciary, and some satisfactory accommodation is reached rather than going sort of straight to the nuclear button. I think Chairman Durbin is very fortunate in having Lindsey Graham as his ranking member. I have a lot of confidence in both of them, and it seems to me that the best thing for us to do right now is to stand back and try to let them work through it to a happy result that I continue to have some hope is possible.
Preet Bharara:
Very diplomatic, sir.
Sheldon Whitehouse:
Every once in a while I can be that way.
Preet Bharara:
Senator Sheldon Whitehouse, thanks again for being on the show. Keep up the great work.
Sheldon Whitehouse:
Thank you, sir.
Preet Bharara:
For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content including the weekly podcast I co-host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.
If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @PreetBharara with the hashtag ask Preet, or you can call and leave me a message at 669-247-7338. That’s 669-247-Preet or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer-Staton and Noa Azulai. The audio producer is Nat Wiener, and the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host Preet Bharara. Stay tuned.
