Sen. Whitehouse: Supreme Court justices are ‘in a fact-free zone as well as an ethics-free zone’

Sen. Sheldon Whitehouse (D-R.I.) said the justices of the U.S. Supreme Court are “in a fact-free zone as well as an ethics-free zone” in light of the ethical issues that have been raised about the members of the court recently. 

Whitehouse said in an NBC News interview with Chuck Todd on “Meet the Press” that establishing an ethics code for the court will not be easy, but Congress has a role to play in administering how the internal ethics of the judiciary are conducted. 

He said instituting an ethics pledge and disclosure demands during the confirmation process for judges is not practical. He said Justice Clarence Thomas did not recuse himself in cases involving the 2020 presidential election despite his wife, Ginni, supporting efforts to overturn the results of the case because the justice maintained that he was not involved and not aware of her activities. 

“That is a question of fact. That’s something that could have, and should have, been determined by a neutral examination, and then we’d all know,” Whitehouse said. “And so, the problem with the Supreme Court is that they’re in a fact-free zone as well as an ethics-free zone.” 

Whitehouse, who serves as the chair of the Senate Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights, said the other ethical questions surrounding Thomas recently are based on a law requiring financial disclosure that Congress passed, demonstrating its authority to act. 

Thomas has faced scrutiny in recent months over the gifts he received from a friend and GOP megadonor, Harlan Crow, over multiple years, including luxury trips and tuition for Thomas’ great-nephew to attend private school. Thomas also did not disclose a real estate sale in which Thomas and his family sold his old home to Crow. 

Federal law requires members of the Supreme Court, along with other officials, to disclose most gifts they receive on annual financial disclosure forms, with some exemptions. Thomas has said he did not believe he needed to disclose the trips he received from Crow because they were part of personal hospitality from a friend. 

The revelations have led Democrats to call for an updated ethical code that is easier to enforce to be enacted for the court, while Republicans have been hesitant to support these efforts and mostly defended Thomas’ conduct. 

Whitehouse said Supreme Court Chief Justice John Roberts should encourage the Judicial Conference, which recommends policy for Congress to pass related to the federal courts, to develop ethics guidelines similar to what is in effect for circuit courts of appeals. 

“It’s not as if you have to go off into terra incognita here. They actually know how to do that,” he said.