Sheldon Whitehouse: Clarence Thomas revelations may be ‘tipping point’

Hello, Deadline: Legal Blog readers! Sen. Sheldon Whitehouse, D-R.I., has been at the forefront of congressional efforts to hold the Supreme Court accountable on ethical and transparency issues. So I thought he’d be the perfect person to speak to in light of the stunning ProPublica report about Justice Clarence Thomas failing to disclose years of lavish gifts from GOP megadonor Harlan Crow. I spoke with the Senate Judiciary Committee member about the court’s ethical problems, how he proposes solving them, and upcoming congressional hearings.

This interview has been edited for length and clarity.

Jordan Rubin: You’ve been beating the Supreme Court ethics drum for a while now. With the latest Clarence Thomas revelations, where do you place them in the constellation of the court’s ethical scandals over the years?

Sen. Sheldon Whitehouse: I think this is a pretty significant one. Unfortunately, it’s both a pretty significant one and only a thread in a larger tapestry of improprieties. But it does demonstrate how very out of whack the behavior of the justices can be compared to regular federal judges. I don’t think there’s another court in the country that would countenance a member accepting this kind of hospitality without reporting it. And it also puts a very sharp pin on the problem of a court that refuses to allow any investigation of itself where every other federal court in the country has a mechanism for ethics concerns to get investigated and resolved.

JR: On the recent letters you and your colleagues sent to Chief Justice John Roberts demanding he conduct an ethics investigation within the court, what can we really expect the court to do for itself given that the whole self-policing thing is kind of part of the problem here?

SW: Well, there are two problems. One is the refusal to self-police. And that can be solved by simply not refusing to self-police any longer. Every other court, all of the circuit courts of appeal, for instance, have a self-policing mechanism. So there are plenty of models for the court to go to if it wishes to begin to self-police.

The second problem is that without any internal capacity for self-policing, when it does try to investigate, as in the Alito Dobbs decision leak, it makes a complete hash of the investigation, which, again, suggests that the way to do it is to do investigations in ways that are modeled on the types of self-policing that all the other federal courts already do. They don’t actually have to invent anything new here. And when they try to invent something new like a [court] marshal’s investigation, the thing is a botch. So all of this steers toward the very plain answer, which is to duplicate at the Supreme Court the same type of process that other courts maintain.

JR: And what’s the enforcement mechanism there? Because, tell me if you disagree, that seems to be at least one of the most important issues — not just what the rules are, but what sort of realistic means there are to enforce them, right?

SW: Yup. I would say first, that before you even get to enforcement, there’s got to be someplace where a complaint can come into the court. There’s got to be an inbox. And once you’ve got a complaint in the inbox, there’s got to be somebody whose job it is to look at the complaint and determine if it’s serious and requires investigation. And once that person has made the determination that it requires investigation, there then needs to be an investigative effort and capability that can be deployed. And that needs to do fact-finding and it needs to report its results to someone who then makes the decision about whether or not the conduct violated the code of ethics. And it’s at that “who’s the someone” that we get to your question, but all of that intermediary stuff has to be built as well.

For me, what we’ve proposed is that the chief judges of the circuit courts of appeal, who already are part of the Judicial Conference [the federal courts’ policymaking body], who are already very distinguished federal judges, who already lead courts and deal with ethics issues, form a panel that makes the determination whether or not the conduct, in their view, violates either the reporting statute or the code of ethics.

That would not be binding on the court. They would not be in a position to discipline the court. But I think if all of the circuit court chief judges agreed that this particular conduct by a particular justice would be misconduct in their courts, that puts a very powerful marker down that will constrain the misbehavior of the justices.

JR: I guess I’m wondering how, though? This ProPublica report on Thomas — one way to read it is that he just doesn’t care. If that’s the case, or if other justices don’t care, what can you do if, in a hypothetical scenario, a justice says, “Okay, all you chief judges agree. Well, I’m above you. You’ve made your ethics ruling, now try to enforce it” sort of thing?

SW: Well, first of all, Thomas cares enough that he felt obliged to put out a statement in this case, so clearly he’s feeling some heat. Second, even if Thomas doesn’t care, other members of the court do. They don’t want, I don’t believe, as a body of nine, to be operating knowingly and purposefully outside the ethics rules that constrain judges, which is why they have always maintained the pretense that they were following the ethics rules.

And the third is, you’ve got a Judicial Conference that has shown it’s willing to rein in misbehavior, by changing the “personal hospitality” rules, which Thomas instantly agreed he would conform to.

So whether it’s the justices themselves feeling pangs of ethical conscience, or whether it’s the court as an institution, as a body of nine realizing, feeling that this is a problem, or whether the other judges — who I think are a bit fed up with the court’s behavior — constrain it in the way that they did through the personal hospitality exemption, there are a lot of forces that can be brought to bear once there’s focus on the problem.

JR: I know there are hearings that are supposed to be coming up in the Senate Judiciary Committee. I’m wondering what you’re hoping to learn there.

SW: We have a really good opportunity coming up to put a spotlight on the difference between how Supreme Court justices’ behavior is regulated and how the behavior of other federal judges is regulated, how unique it is throughout the entire federal government, and to focus on the extremely obvious problem of calling your own balls and strikes.

Not for nothing, it’s the phrase nemo judex in sua casa in Latin; it’s been an elemental principle of justice for centuries, that no one should judge their own case. And I think that once the spotlight is on the fact that these justices have put themselves in the position of being exclusive judges in their own cases, it becomes untenable to defend.

JR: So that’s an important general principle that you’ve laid out. Is the point of the upcoming hearing only to look at that general part or is it also specifically to look into the allegations against Justice Thomas as well?

SW: I think, given the timing of hearing — not settled yet, but I don’t think it’s planned to be after a robust Senate investigation has commenced, worked its way through the blockades that the court will throw up and produced results — I think that this hearing is likely not going to be about a fulsome investigation into Thomas’ conduct, so much as it is: Where do we go from here?

And I think the statement of the problem that I described is an important piece of it, and the second thing is we’ve got legislation, both from me and from Sen. Chris Murphy [D, Conn.], to address the problem and the relative merits and demerits of Senate legislation to address the problem is also an important subject for the committee to consider, preparatory to an ultimate markup.

JR: Do you think that this will be the one that gets it over the finish line? It seems like we kind of just keep going around in circles to some extent with Supreme Court scandals and accountability.

SW: Yeah, you keep banging away at something and then one day the world changes and progress opens up. I hope that this is that day. And two things could happen. One, we’ll explore what the Republican appetite is for fixing any of this. We’ve seen [Senate Judiciary Committee ranking member] Lindsey Graham [R, S.C.] express his concerns about the financial reporting discrepancy, for instance. And two, it sends a powerful signal to the court that it better get its own act together before we come in and start doing things. So this could be the tipping point where the chief justice decides it’s clean-up time at last over there in the Augean stable.