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The biggest problem with Tuesday’s Senate Judiciary Committee hearing on Supreme Court ethics was evident from the start: The most important witness wasn’t there.
By turning down the committee’s invitation, Chief Justice John Roberts robbed the public of a detailed, on-the-record explanation — in response to questions from the people’s elected representatives — of why his court doesn’t need a binding ethics code.
Of course, Justice Clarence Thomas, whose undisclosed financial ties to a GOP billionaire prompted the latest wave of ethical scrutiny, should have been there, too. Both he and Roberts should have been subpoenaed.
Instead, we heard from what amounted to conservative intermediaries who defended the status quo — former Attorney General Michael Mukasey and a Washington lawyer named Thomas Dupree, who claimed that the “separation of powers” prevents a binding ethics code for the justices. The witnesses’ testimony echoed Roberts’ pathetic letter declining the invitation to testify, in which the chief implied that the separation of powers would have made his very presence inappropriate, given what he deemed the “exceedingly rare” appearances of chief justices before the committee throughout history.
But as the committee chair, Sen. Dick Durbin, D-Ill., noted at the beginning of the hearing, justices have testified to Congress nearly 100 times since 1960. And when he extended the invitation ahead of the hearing, Durbin offered Roberts the opportunity to send another justice in the chief’s stead, which wouldn’t have offended Roberts’ feigned concern about chiefs in particular being subject to congressional oversight.
To be sure, there are legitimate questions about how best to enforce an ethics code against the justices who sit atop the judiciary. But Roberts’ refusal to participate in the process of hashing that out only serves to highlight the arrogance of his apparent thinking — that he shouldn’t even have to explain to the public why his court doesn’t play by the same rules as lower court judges, who are bound by a code of conduct.
Amid Tuesday’s testimony and typical senatorial grandstanding, that arrogance and absence spoke louder than anything.