The chairman of the Senate Judiciary Committee made a personal plea to Chief Justice John Roberts to create a Supreme Court code of ethics at a closed-door conference Tuesday.
Democratic Sen. Dick Durbin was an invited guest to the meeting of the Judicial Conference – the policy arm of the US Courts – and was seated next to Roberts, according to a source familiar.
Durbin addressed the audience for five minutes, according to the source, noting that while he had attended previous meetings of the Judicial Conference, this year felt different. He said he was saddened that the highest court in the land was mired in an ethical crisis that he felt the justices had brought upon themselves by failing to create an enforceable ethics code that applies directly to the justices.
Durbin was not the only invited member of Congress to speak in the meeting held in one of the conference rooms at the high court. Republican Reps. Jim Jordan and Darrell Issa also spoke, defending the court in their comments, one source said.
Another Republican, Maine Sen. Susan Collins, took a different position, according to a separate source familiar with her comments. Collins defended the courts in general by speaking in support of the independence of the judiciary.
Collins also expressed sympathy for the pressure the judiciary faces from Congress and groups on the left and the right.
“At the invitation of Chief Justice Roberts, Senator Collins, the vice chair of the Senate Appropriations Committee, delivered remarks before the court on Tuesday focused largely on the appropriations process in the Senate,” Annie Clark, a spokesperson for Collins said. Roberts presides over the Judicial Conference.
The comments come as Durbin is pushing for legislation that would require the justices to adopt such a code. On more than one occasion he has warned that if the court doesn’t act, Congress will. The effort, however, faces opposition from Republicans.
Durbin had invited Roberts to testify at a hearing devoted to Supreme Court ethics in the spring, but Roberts declined.
“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” Roberts told Durbin in a letter at the time.
The meeting occurred after an array of news stories alleging ethical transgressions on the part of some justices. ProPublica, the Associated Press and other outlets have reported on issues concerning Supreme Court justices’ undisclosed luxury travel on private jets, lavish vacations and the use of taxpayer funded staff to perform tasks related to book ventures.
Meanwhile, approval ratings of the court remain at an all-time low – a fact that has not been lost on the justices.
Just last week, Justice Brett Kavanaugh told an audience in Ohio that the court is working on “concrete measures” to address such concerns. He said he was hopeful movement would occur soon, but gave no details.
In May, Roberts himself pledged to assure the public that the court was committed to adhering to the highest standards of conduct.
But court watchers wonder what measures the court could be considering and if anything less than a total revamp of ethics rules would appease critics. Last term all nine justices signed a statement meant to provide “clarity” to the public about how they carry out their responsibilities. It landed with a thud when critics said it fell far short than what was necessary.
A source close to conservative members of the court argued that no measure would satisfy liberal critics. That’s because, he said, the real reason the court is under attack is because liberals disagree with the conservative tilt of the court that has led to recent blockbuster rulings including the reversal of Roe v. Wade.
Asked about Durbin’s legislative efforts, Justice Samuel Alito told The Wall Street Journal’s editorial page in July that “no provision” in the Constitution gives Congress the authority to regulate the Supreme Court.
After Tuesday’s meeting, Chief Circuit Judge Lavenski Smith, Chair of the Executive Committee of the Judicial Conference briefed the press. He said that while ethics were discussed by congressional guests the judges themselves didn’t discuss the issue at the meeting.
This story has been updated with additional details.