The Senate Judiciary Committee took on the issue of ethics at the Supreme Court Tuesday, though no one from the Court was there to answer questions.
Committee Chair Sen. Dick Durbin, (D) Illinois, invited Chief Justice John Roberts and the other justices to the hearing, but they declined, with Roberts citing the need to "preserve judicial independence."
The session came on the heels of several questionable actions by members of the high court, including undisclosed gifts accepted by Justice Clarence Thomas.
And Durbin wanted to hear from Roberts amid a fresh report from ProPublica about his relationship with Harlan Crow, a financial donor who paid for his vacations, his mother's home and other things.
But instead of hearing from the justices, senators heard from former federal judges and constitutional law experts.
"This is untenable; ethics cannot simply be left to the discretion of the nation's highest court," Durbin said. "The court should have a code of conduct with clear and enforceable rules, so both justices and the American people know when conduct crosses the line."
Roberts declines Senate request to testify on court ethics
While Chief Justice John Roberts declined a Senate Judiciary request to testify on court ethical standards, he did provide a statement.
Democrats argue the justices need to establish a clear code of conduct that holds them to the same standards as lower court judges.
"Only Supreme Court justices refused to allow their conduct to be investigated or reviewed. My bill would fix that," Sen. Sheldon Whitehouse, (D) Rhode Island, said.
"Investigations of misconduct are extremely rare, and when they do occur, they are conducted by court staff who do not have expertise in investigations or expertise in ethics," said Kedric Payne, vice president, general counsel and senior director of ethics at the Campaign Legal Center.
Republicans on the judiciary committee blasted the hearing.
"This is not about judicial ethics," Sen. Ted Cruz, (R) Texas, said. "This is not about rules that should apply to judges across the board. We can have a reasonable discussion about that. This is about applying a double standard to Clarence Thomas and only Clarence Thomas."
"The point we're trying to make here, I think, is that this effort to come after Justice Thomas is, I think, organized by the left," said Sen. Lindsey Graham, (R) South Carolina, the ranking member on the Senate Judiciary Committee. "I think this moment when we could find common ground has been hijacked."
Report: Clarence Thomas sold real estate to donor, didn't report deal
Federal officials, including Supreme Court justices, are required to disclose the details of most real estate transactions with a value over $1,000.
Republican-called witnesses argued Congress doesn't have the authority to require the Supreme Court to change its ethics procedures.
"This is an extraordinary mandate that infringes on the separation of powers, a bedrock principle that underpins our constitutional democracy," said Thomas Dupree Jr., a partner at Gibson, Dunn & Crutcher.
But a constitutional law expert noted Congress does play a role in the administration of the Court, like determining the number of justices.
"If ethics laws were strengthened or passed by this Congress, they would apply to all the justices," said Amanda Frost, a law professor at the University of Virginia School of Law. "If there was more transparency in the Court and its process for dealing with ethical problems, then we wouldn't have certain reporters publicizing certain justices' problems. We'd have transparency about each and every justice, whether they were abiding by the rules and what should happen next."
