Tuesday, May 02, 2023

It’s Not A Question Of Ethical Guidelines

It’s a question of disciplinary rules.
In a carefully worded, but blunt statement, conservative former federal judge J. Michael Luttig sent a warning shot to the Supreme Court, calling on the Court to enact a code of conduct that would “subject itself to the highest professional and ethical standards that would render the Court beyond reproach.”

But when the Court has done so, who enforces this code? The Court itself?

Late Monday afternoon, in a letter to Senate Judiciary Committee Democrats (below), the Chief Justice revealed the Statement on Ethics Principles and Practices he had sent as proof of his justices' dedication to ethics, which was adopted unanimously, had been signed the very day he sent it to Chairman Dick Durbin: April 25. 
He also revealed that the last time Supreme Court justices had adopted a statement on ethics was 30 years ago, in 1993. While Supreme Court justices have a lifetime appointment, that would mean that only Justice Clarence Thomas had signed onto the code of ethics before last week. Coincidentally, Justice Thomas is the justice most of the allegations of corruption have centered on, although Justice Neil Gorsuch's failure to reveal that a law firm chief had purchased land from him is attracting ethical concerns, and the Chief Justice is facing public scrutiny after it was revealed his wife has made over $10 million by placing attorneys into law firms, some of which have business before the Supreme Court.

Is Clarence Thomas going to be a good boy now? Is he going to play nice? Justice Jackson has recused herself from a case coming before the court. I don’t believe Justice Thomas has ever recused himself from hearing or ruling on a case. If he doesn’t, what’s the recourse? Zip, or none?

We cannot excuse what has been reported already about Justice Clarence Thomas. The yacht trips to Indonesia sponsored by a billionaire in Texas, the Gorsuch real estate transaction have raised serious questions about whether things went unreported,” Durbin, a Democrat from Illinois, told CNN’s John Berman on Monday. 
“This sort of thing is unacceptable in every branch of our government, at every level of the courts, save the nine men and women serving on the Supreme Court,” Durbin added.

But the question remains: does the Court need a code of ethics? Or a set of enforceable rules?  Ethical guidelines are what lawyers should, and should not do. Disciplinary rules are what they must not do, lest they lose their license. Ethical guidelines are suggestions. Disciplinary rules are “Thou shalt not.”

It’s an important difference.

But if it’s just a look…
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