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Floor Speech

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Mr. WHITEHOUSE. Madam President, first, let me thank the chairman of our committee for attempting to bring this bill to the floor and to get us on it. Even though the Republicans have objected to Supreme Court ethics, it is important for us to continue to make the effort because the American people understand that there is something gone very wrong at the Supreme Court.

The objections that we just heard amounted to a long excursion through a great variety of topics: through abortion; through past FBI investigations; through allegations about a two-tiered system of justice; through wokeness; through things we all agree on, like separation of powers and an independent judiciary. I think it would be helpful to actually come into focus on what we are actually talking about here because most of what was said in opposition to this bill is completely irrelevant to what we are seeking to achieve.

We all accept the doctrine of separation of powers. Senator Blumenthal, who is here, is an expert in the subject. He has argued more cases in the Supreme Court than any other Senator. To be clear, our bill does not make the Supreme Court subservient to Congress in any respect. The bill obliges the judicial branch of government to create its own ethics enforcement mechanism that will be run within the judicial branch of government by the judicial branch of government. There simply is not a separation of powers concern when the judicial branch of government runs an ethics program for the judicial branch of government that is administered within the judicial branch of government. It just ain't so.

The existing state of affairs is that the ethics requirements that apply to the Justices of the Supreme Court, first, related to recusal and, second, related to disclosure of gifts are laws passed by Congress.

And the enforcement, particularly of the disclosure requirements, is done by the Judicial Conference. The Judicial Conference is a body established by Congress.

When Harlan Crow first started giving free yacht and jet travel secretly to Clarence Thomas, that question was taken up by the Judicial Conference a decade ago.

Did the Justices complain that the Judicial Conference was investigating Justice Thomas and his disclosures? No, of course not, because the argument would make no sense. So to hear it here on the Senate floor is a bit disappointing. Right now, the Judicial Conference investigates and can sanction or refer for further investigation Justices of the Supreme Court.

We are trying to fix three really simple problems: One is factfinding. Factfinding ought not to be an issue in dispute. Every member of government in the United States who is subject to any kind of supervision or ethics requirement--which is everybody--had a process whereby the actual facts are found of what went wrong. Hell, even the President of the United States had to sit for a factfinding interview about the documents in his garage. It is only nine people in the entirety of the U.S. Government who think that they have no obligation to do any factfinding. And that is pretty dangerous because we just saw Justice Alito offer facts, a description, about what went on behind his family flying MAGA battle flags over their houses that has been proven false by information that is incontestable. Police reports with dates show that he got the order of things wrong. COVID showed that it couldn't possibly have been a schoolbus stop.

So you have erroneous facts offered by Supreme Court Justices with no method to review them. Or they completely ignore the facts. Justice Thomas has refused to ever say a word about what he knew about his wife's engagement in the insurrection while he was adjudicating the rights of those investigating the insurrection.

There is nobody else in the world where somebody doesn't come in and say: Sir, we have a complaint about your conduct, and we are going to need to take a statement from you. This won't take long. I am going to ask you some questions. You will give your answers. At the end, we will ask you to review and sign your statement.

Nothing difficult about that. Nothing against the separation of powers about that. Nothing that Chief Justice Roberts couldn't require right now about that. He could have Supreme Court staff attorneys conduct exactly that kind of work right now, as the chairman has repeatedly pointed out.

Factfinding is a really basic elemental proposition of our American judicial process, and it applies everywhere. It makes no sense for the body ultimately responsible for policing proper judicial process in the United States to not allow itself to participate in that most elemental and fundamental task of there being actual factfinding.

The second is a principle so old it is in Latin, for Pete's sake: ``Nemo iudex in causa sua''; no one should judge their own case. That is pretty easy to understand. And yet we let these Justices alone in the United States--nobody else--get to be the judges of their own ethics. And, obviously, they have failed to measure up.

And the third issue is transparency, disclosure. We know perfectly well that the Justices have failed at their disclosure obligations, and they can't keep their stories straight about meeting their disclosure obligations.

We just had Justice Thomas go back into his previous disclosures to correct them and tell the world and the Judicial Conference, which was reviewing this, that his failure to file was an accidental error. It was ``inadvertent.'' But earlier he had said about the same gift from the same billionaire: Oh, those don't have to be reported. That was personal hospitality from a dear friend.

Well, which is it? Is it personal hospitality that doesn't have to be reported? Or is it something that you knew perfectly well you should have reported, and now you are going back and cleaning up an error that you are claiming is inadvertent?

The disclosure mistakes are inexcusable on their face. Federal officials who commit far less in the way of disclosure mistakes have actually been prosecuted as felons, as misdemeanants, under the criminal law for those similar disclosure violations.

So we need to get this right. All it requires is factfinding and an independent voice so it is not nemo iudex. You are not judging your own cause. Those are really basic principles. That is all we are trying to do.

It would be done by judges within the judiciary. There is no separation of powers issue. That is a complete canard.

And I will close by saying that the Judicial Conference has been helping us in all of this. The Judicial Conference has just blown up Justice Scalia's trick, which was to solicit through intermediaries free vacations from resort owners, and then when the resort owner invited him with a personal invitation, he would pretend that that was personal hospitality because it was a personal invitation, even if he had never met the resort owner. That is a preposterous reading of the personal hospitality exemption. And it is not just me saying that. The judges of the Judicial Conference said: You are right. That is preposterous. That is ridiculous. We are clarifying the rule that that is not acceptable.

And he had done it 60 times. He was a vacation-taking fiend. My Lord.

So the idea that you can trust a Supreme Court Justice, with no independent review, no factfinding, each the judge in his own cause, to follow the rules has been blown to smithereens by the conduct of the Supreme Court Justices themselves. As our chairman is fond of saying: This is a crisis in ethics at the Supreme Court that the Supreme Court itself has created. It is a crisis in ethics of the Supreme Court that Justice Roberts himself at the Judicial Conference can solve.

But if they are not going to do it, we are going to do what we did before when we set up the Judicial Conference, when we set up the recusal laws, when we set up the disclosure laws. Set up the system, and let the judiciary enforce it.

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