Willie R. Tubbs, FISM News
Chief Justice John Roberts will not appear before the Senate Judiciary Committee after declining an invitation from committee chair Sen. Dick Durbin (D-Ill.).
Durbin had asked Roberts or a justice of his choosing to offer testimony to the committee at a hearing on May 2.
Democrats called this hearing to discuss “the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules” after allegations emerged that a Republican backer gave lavish gifts to Justice Clarence Thomas.
Tuesday, in a letter addressed to Durbin, Roberts cited the separation of powers clause of the Constitution as reason enough to not participate.
“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 wrote.
Roberts then launched into a brief but thorough recounting of the times in American history when a chief justice appeared before a Congressional committee. The grand total of appearances for all chief justices was four, and always on matters Roberts identified as “mundane.”
The chief justice drove home his separation argument by pointing out that a U.S. president had only thrice appeared before a committee and provided Durbin with a copy of the court’s “Statement on Ethics Principles and Practices,” a document which was endorsed by all justices and which Roberts says is appropriate for addressing the Thomas allegations.
Durbin, who is angling for Congress to enact an “enforceable code of ethics” for the Supreme Court, had stated in his initial invitation that there was “ample precedent” for sitting justices to provide testimony.
“I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious,” Durbin said in response to Roberts’ letter. “The actions of one Justice, including trips on yachts and private jets, were not reported to the public. That same Justice failed to disclose the sale of properties he partly owned to a party with interests before the Supreme Court.”
Durbin continued, “Supreme Court ethics reform must happen whether the Court participates in the process or not. It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.”
Tuesday’s letter was likely a calculated risk by Roberts.
There is still a chance that Roberts could be forced to testify before the committee. Durbin has the power to subpoena the chief justice, although such a subpoena could be challenged in court.
It’s also possible Durbin could invite or subpoena Justice Thomas to testify, something for which numerous media entities, among them the Chicago Sun-Times editorial board, have pushed.
However, Durbin also runs his own risk if he pushes too hard. It’s one thing to say one wants an enforceable code and quite another to take concrete steps to put the Supreme Court under the direct control of the legislative branch.
Democrats have loudly accused Republicans in the House of weaponizing various oversight committees and overstepping their bounds in their battle with Manhattan Attorney General Alvin Bragg in the New York criminal trial of former President Donald Trump.
Roberts seems to be banking on the fact that Durbin, who typically portrays himself as a moderate, will not want to be seen as overstepping his Constitutional remit.