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Senator says the Supreme Court should 'take the hint' on code of conduct

SACHA PFEIFFER, HOST:

The Supreme Court is under scrutiny. Yesterday, the Senate held a hearing on judicial ethics. And last week, senators introduced a bipartisan bill to create a code of conduct for the Supreme Court. That's all in response to recent allegations of misconduct involving Justices Clarence Thomas and Neil Gorsuch. Last week's bill was introduced by Republican Senator Lisa Murkowski of Alaska and Senator Angus King, an independent who represents Maine and is with us now. Welcome back to the show.

ANGUS KING: Good to be with you.

PFEIFFER: This bill is fairly short. The first part would require the court to adopt a code of conduct. The second part would create an enforcement mechanism. On the first part, what would a code of conduct for the Supreme Court look like?

KING: Well, that's an easy question because there's already a code of conduct for every other judge in the federal system, not to mention every judge in the state system. So let's say there are 10,000 judges in the country. I don't know what the real number is. But the situation we have now is that 9,991 of them have a code of conduct and nine don't. So A, it's easy to say what it would look like, and B, it shouldn't be a great chore to draft it.

PFEIFFER: So nothing specific required for a Supreme Court justice? It could essentially be identical for the lower - for what the lower courts abide by?

KING: Absolutely. And the heart of it - the heart of any judicial canon of ethic is that a judge should avoid - must avoid - impropriety and should avoid the appearance of impropriety. The reason is that what we're really talking about is confidence in the institution. That's why that's the heart of judicial canons of ethics in every state and also in the federal system. So our bill does not tell the Supreme Court what their code should say. It just says do it, and tell us what it is so that the public has a benchmark by which they can judge whether the conduct of the justices is living up to the standards that they themselves establish.

PFEIFFER: The second part of the bill is enforcement of the code. How would the bill ensure that the code of ethics is followed?

KING: The second part of the bill would have an individual appointed by the court whose job it would be to investigate complaints or allegations of wrongdoing or violations of the code and make public their determination. This is all about trying to restore confidence in the court. The court has no army. They have no police force. Their authority is based upon public confidence and trust, which right now, unfortunately, is at an all-time low.

PFEIFFER: Recently on our program, we had a professor of judicial ethics, Charles Geyh, on the show, and he described the bill's enforcement mechanism as weak. Here's part of what he said.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

CHARLES GEYH: The way the bill is drafted, it does not have real teeth. It really calls upon the chief justice to do some reporting. It authorizes investigations, but it doesn't require sanctions and suspensions and so on.

PFEIFFER: Senator King, how do you feel about that skepticism about the enforcement?

KING: I understand the skepticism, but we run straightforwardly into the Constitution and separation of powers as to whether or not the Congress has the power to stipulate enforcement of the kind and sanctions he mentions. We're trying to steer a narrow path here between efficacy and constitutionality.

PFEIFFER: Because you're saying that the legislative branch has a limited ability to police what the judicial branch does, and you're trying to stay within those bounds?

KING: Exactly. And again, I think the heart of this is transparency, is having the court tell the public, here's the code of conduct we expect to live by, and then if there are questions that arise, here's the resolution of those issues. I don't think we have to put in sanctions. I would hope that the court themselves would understand how important this is and that it's reflective of their moral authority.

And remember, Sacha, these are people that are appointed for life, and they have some of the greatest power of anybody in our entire governmental system. They're not elected. They're not accountable in any sense. So to ask them or suggest or propose to them and to put into place a code of ethics that the public can see and understand, it seems to me, is a minimal response. And to be honest, they should do this themselves. They should take the hint. Don't make us pass a bill. Just do it.

PFEIFFER: Because Thomas and Gorsuch are conservative justices, not surprisingly, this bill has quickly become politicized. Mitch McConnell, the Republican senator, says Democrats are trying to damage reputations of justices. And then Republican Senator Lindsey Graham says it's focusing on conservatives, not liberal justices. Here's part of what Graham said. I'd like you to address this.

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSEY GRAHAM: I'm just saying there's a very selective outrage here. And from our point of view on this side of the aisle, we're going to push back as hard as we can and tell the American people the truth about what's going on here. This is not about making the court better. This is about destroying a conservative court. It will not work.

KING: Well, with all due respect to my friend Lindsey, that's utter nonsense. It's certainly not the case in my case. And here's an interesting little fact. Dick Durbin, in fact, wrote the court about a code of ethics, as you know, last week. But he also did so in, I think, February of 2012 when Barack Obama was president on the same issue.

PFEIFFER: Still, given that very negative Republican response, how likely do you think you are to get the 60 votes needed for this bill to pass?

KING: Well, I think it's tougher than I thought it was going to be - frankly surprised that Mitch McConnell went to the floor. I don't understand it, really, that - I guess my response is to cite Shakespeare, methinks they doth protest too much. This is common sense, and I think the American people understand that.

PFEIFFER: Senator Angus King of Maine, thank you.

KING: Thank you, Sacha. Great to be with you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

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Justine Kenin
Justine Kenin is an editor on All Things Considered. She joined NPR in 1999 as an intern. Nothing makes her happier than getting a book in the right reader's hands – most especially her own.
Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.
Kai McNamee