The Supreme Court’s ethics issues rest with the justices themselves - The Washington Post

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It wasn’t a “high-tech lynching” three decades ago, when the Senate Judiciary Committee considered Anita Hill’s allegations against Supreme Court nominee Clarence Thomas. And it is not a high-tech lynching for the committee to debate the ethics of now-Justice Thomas’s behavior and consider what steps are needed to address the broader issue.

But that was where the committee found itself on Tuesday. Sen. Ted Cruz (R-Tex.) called the Thomas conversation a “shameful reprise of 1991’s high-tech lynching” and decried what he called a “political campaign designed to smear” the justice. Sen. John Cornyn (R-Tex.) actually went to the tape, as though Thomas’s volcanic testimony in 1991 was somehow relevant to the ethics issue now.

Former federal judge Michael Luttig submitted written testimony for Tuesday’s hearing, and the conservative jurist got to the heart of the matter. Justices, he wrote, must “conduct themselves in their nonjudicial conduct and activities in such a manner that they are individually deserving of respect — indeed, beyond reproach, not only in fact, but also in appearance. This, at all times and places, in both public and in private.”

Can that seriously be said of Thomas and his acceptance of lavish travel, gifts and other benefits from Republican megadonor Harlan Crow, year after year after year? The yacht. The private jet. The purchase of his mother’s home. All unreported. (Yes, the law carves out an exception from the reporting rules for lodging, meals and entertainment provided as part of personal hospitality.)

But while justices must follow rules, they also need to exercise judgment — to behave in a way that is, as Luttig said, “beyond reproach.” And here is where the jaw-dropping extent of the largesse — from a single source, from an ideological and political actor, from a man Thomas did not know before he became a justice — becomes so questionable.

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Consider how Crow and his wife became, as Thomas said in a statement, “among our dearest friends.” They met on Crow’s private jet: As he told the Dallas Morning News, Crow was meeting with the conservative National Center for Policy Analysis. When officials mentioned that Thomas was speaking to the group in Dallas, Crow offered the justice a lift, since he and the jet were headed home. Other rides would follow. This is no ordinary friendship.

Republicans predictably pointed to similar, or similarly questionable, conduct, by Democratic-appointed justices. Sen. Lindsey O. Graham (S.C.) cited several incidents involving Ruth Bader Ginsburg, including the time the late justice donated to the National Organization for Women a signed copy of her majority opinion in the landmark case requiring Virginia Military Institute to admit women, which then auctioned it off at a fundraiser, as well as her receipt of an award from the Woman’s National Democratic Club.

“All hell would break lose in this town,” if a conservative justice behaved that way, Graham said, and he’s got a point, including about the media: “When a liberal justice does something the reaction in the American media is completely different.” Ginsburg, in particular, was treated too gingerly for too long, as she rose from mere justice to cultural icon. And for that matter, the current competition for ethics scoops risks drowning the truly problematic behavior in a sea of minor lapses, if that. A summer teaching engagement doesn’t an ethics scandal make.

But the Republican whataboutism doesn’t prove what Republicans think it does. They see the lack of attention to the ethical lapses of justices appointed by Democrats as evidence of an effort to “delegitimatize the Supreme Court” now that it is firmly in conservative hands. I see it as proof that the problem is systemic, and that something needs to be done — especially because the justices seem incapable of acting on their own.

Which is why it was such a shame that Tuesday’s hearing was more theatrics than theory. There are important questions about whether current financial disclosure rules need to be tightened or better enforced. There are complicated questions of constitutional law and institutional logistics about how a code of conduct would be enforced if the court were to adopt one — either voluntarily or by congressional fiat.

That is not the conversation this Senate is capable of having. Instead, Republicans insist on exhuming ancient grievances about nominations past (Robert H. Bork, Miguel Estrada, Janice Rogers Brown). They peddle false equivalencies: Other justices amended their disclosure forms — voluntarily — so it doesn’t matter that Thomas keeps messing up his and, perhaps, fixing them once exposed. Other justices took many trips and disclosed them, so it doesn’t matter that Thomas took many trips he chose not to report.

Former George W. Bush attorney general Michael Mukasey, testifying for Republicans, warned that “the public is being asked to hallucinate misconduct so as to undermine the authority of Justices who issue rulings with which these critics disagree, and thus to undermine the authority of the rulings themselves.”

No hallucinogens required. This court is doing a bang-up job of undermining its authority, all on its own.