Sen. King on SCOTUS Ethics: “Who Will Guard the Guardians?”

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: And next to the U.S. Supreme Court which is facing an ethical dilemma. Lawyers and lawmakers are calling for the high court to adopt an ethics code of conduct after Justices Clarence Thomas and Neil Gorsuch were accused of violations. Chief Justice John Roberts declines to discuss the matter with Congress. But now, the independent senator, Angus King, has introducing new bipartisan legislation, the Supreme Court Code of Conduct Act. If it’s passed, it would require the high court to establish its own ethics code in line with other federal judges. And to discuss this new bill and the senator’s attempt to restore trust in the institution, he’s talking to Walter Isaacson.

(BEGIN VIDEO CLIP)

WALTER ISAACSON, HOST: Thank you, Christiane. And Senator Angus King, welcome back to the show.

SEN. ANGUS KING (I-ME): Great to be with you, Walter. Look forward to talking about some pretty serious issues this week.

ISAACSON: Including the Supreme Court, because you’ve always been at the forefront of trying to restore trust in institutions. And we’ve hit — been hit with some stories recently about the Supreme Court. There — you know, there was the case of Justice Clarence Thomas accepting luxury vacations from the billionaire Harlan Crow, who bought the justice’s mother’s house and renovated it while she was still there. Likewise, we’ve had a story from — about Neil Gorsuch who didn’t reveal the name of the person who bought a $1.8 million piece of property was somebody who is a head of a firm with cases in front of the court. Why do these types of stories matter?

KING: Well, they matter, Walter, because the Supreme Court doesn’t have a police force or an army. The whole structure of the Supreme Court depends on public trust. It depends on its moral authority, if you will. And stories like what we’ve seen in the last couple of weeks undermine that public trust. And in fact, recent polls indicate that the confidence in the Supreme Court is at the lowest level, I think, in history, certainly in recent history. And so, what Lisa Murkowski and I are trying to do, and we will talk about our bill, is it is a pro Supreme Court bill. We’re basically saying, adopt a code of ethics because that’s what’s needed to reassure the public after these recent revelations. I mean, one of the bad things about these revelations were that they weren’t even reported. The Supreme Court justices do have financial reporting requirements and didn’t report these, you know, luxury vacations and who bought the house and those kinds of things. So, it is all about public confidence. And it’s a wider problem, as you know, and our government generally, democracy rests on trust, and this is one effort to shore up the trust in one of our most important institutions.

ISAACSON: Well, you say that you and Senator Murkowski, a Republican senator, are working on a code of ethics, a code of conduct bill that would ask the Supreme Court to do these things. What exactly is in that bill?

KING: Well, the bill is really simple. It’s a three-page bill, and we don’t write the code of conduct. We don’t think that’s appropriate for the Congress. Basically, well, all our bill says is, take the next year, write your own code of conduct, make it public and then, establish some of it in the court system whose job it is to oversee the implementation of that code by. By the way, Walter, every judge in America is subject to a judicial code of conduct except the nine justices of the Supreme Court. What we’re talking about here isn’t very radical. And as I say, we’re not — this isn’t Congress saying what your rules should be, we’re saying, you make your own rules and then be public about it, be transparent about it. And then — and it’s not even a big drafting problem. We — in our bill, we say a year, it could be done in a weekend because there’s already a judicial code of conduct that governs every federal judge in the country. So, all they’ve got to do is add and the U.S. Supreme Court, it’s sort of ridiculous. I don’t know how many judges we have in the country, 10,000, 15,000, all but nine are subject to a judicial code of conduct. And those nine have lifetime jobs and some of the most important decisions, in terms of power, over American lives, it just seems to me common sense.

ISAACSON: Well, even if it is common sense, and it does seem to make sense, what right do you have to tell them to do it? You’re a separate branch of government. We really keep these separations of powers important. Why should the Congress have the right to tell the Supreme Court what to do?

KING: Well, I think that’s a good constitutional question and I agree, for example, that Justice Roberts declined to appear before the Judiciary Committee. I understand that. I think there are separation of power issues here. I believe that under the constitution, it’s a little vague in Article 3 Clause 1, but a Supreme Court is established, and I think that Congress does have the power, not to necessarily say what the standards should be, but simply say to the court, you should do this. Now, they ought to do it themselves. They ought to take the hint. There’s no question that they have the power to do it themselves, they shouldn’t need an act of Congress to require them to do it. But so far, they haven’t taken that step and they have resisted it. Justice Roberts sent a long letter to Dick Durbin and the Judiciary Committee and has said, we consult with people and we’ll follow the substance of rules. That’s not good enough. And again, what we’re — we’re trying to help them to help themselves. This is all about preserving the authority and the credibility of the Supreme Court. So, I believe that Congress does have that power. But beyond that, I would — I wish in the next two weeks, Justice Roberts would say, you don’t — you can put your legislation away. We’re going to adopt a code of conduct. That’s what it ought to work.

ISAACSON: In the letter to Senator Dick Durbin who tried to get him to testify in front of the Senate committee, Chief Justice Roberts said, we already have, I think it’s called a — what is it, a statement on ethics and principles and practices. And he — it was a couple of pages, I read it. Why isn’t that enough?

KING: It’s pretty mushy. And it doesn’t really give — it doesn’t really set forth any standards. And to me, the key sentence in that letter was, we will follow the substance of these standards, which they don’t define. And that’s not good enough, following the substance. How about following the rules? And what we’re really talking about is, tell us what the rules are. It’s hard to tell whether conduct is appropriate if you don’t have any standard for defining what’s appropriate. Justice Thomas, for example, justified his failure to report a $500,000 vacation by saying, well, I consulted people and they said it was OK. And it’s OK to take hospitality. And it just isn’t clear. For example, in the main judicial code of conduct there is an exception for hospitality. But you know it says? Ordinary hospitality. That is a dinner every now and then or maybe a round of golf. It’s not a private jet and a yacht in the Philippines. Nobody would define that as ordinary hospitality. So, that’s what I mean. Let’s have a code of judicial conduct. And frankly, you know, I have been surprised for many years that this didn’t exist. And I keep going back to this point. The whole project that Lisa Murkowski and I are engaged in is to — is on behalf of the Supreme Court. We are merely saying, here is something you really should do in order to reestablish your credibility. I can’t believe that John Roberts wants his legacy on the Supreme Court to be a catastrophic decline in public confidence in his very important institution.

ISAACSON: Say your bill passes and say the Supreme Court says, you don’t have the right to tell us what to do, what happens then?

KING: Well, then there would be a case and the Supreme Court would decide it. And, you know, they are the Supreme Court. They interpret the law and interpret the constitution. And I suppose they could have that result. It would be kind of an interesting result where they ruled themselves exempt. But it would be — if they did that, it would be one more blow. This is Shakespeare, methinks he doth protests too much. If there are no problems, if you have consultation and are following some kind of vague standards that are undefined, then why are you resisting so stoutly, doing something that, again, applies to every other judge in America, including every federal judge in America? It just — it doesn’t make sense to me that they are resisting so strongly something that I think ordinary citizens would say, huh, why aren’t they doing this?

ISAACSON: Let me ask you about another story involving a Supreme Court, and that’s Justice Alito saying to the “Wall Street Journal” that he thinks he knows who the leaker is of the Dobbs case, the abortion case that caused such controversy. Tell me what you feel about that and how that plays into the credibility of the court or undermining the credibility of the court?

KING: Well, I was a little surprised if he knows that person. The court did an investigation, and I believe the announcement was, we couldn’t find the leaker, we couldn’t get to the bottom of it. If he knows something, then he should share that with the chief, I would think. But, you know, there are other issues that haven’t gotten the level of publicity that we’ve had recently about people who are contributors to the — I think it’s called the Supreme Court Historical Association, and they have special access to the judges’ dinners, dinners at people’s homes. This is — you know, I’ve always thought of —

ISAACSON: Well, wait. Doesn’t the Senate do that as well?

KING: Yes. But number one, we don’t have lifetime appointments. We have to answer to the voters every two years in the house, every six years in the Senate. Clearly, and I’m not saying judges can’t have a social life, but I am saying that the whole — the heart of the judicial canon of ethics — and I remember learning this in law school, is that judges must avoid impropriety and should avoid the appearance of impropriety. Avoid the appearance of impropriety, why? Because the — again, to go back, the court’s authority rests upon public trust. If people think the courts are rigged, they are not fair or are a subject to influenced by special interests, then they’re going to say, why do we have to listen to these people? Why do we have to abide by their rulings? You know, President Jackson famously said, if the Supreme Court wants to enforce this order, it can have its own army, or something along those lines. You’re a historian, you know better than me, the quote. But the point is, it’s the moral authority of the court that is so important and we live in an age of declining confidence in public institutions. And here I am, a member of Congress, which, you know, has a pretty low approval rating itself, but at least we are answerable to the people. And that, to me, makes this what we are talking about here even more important. You’ve got nine people who have enormous power over Americans’ lives, lifetime appointments. And now, I go back to Madison, or even go back further, go back to the Romans. You know the quote, quis custodes ipsos custodiet, who will guard the guardians? Madison put it another way and he used the term men, but we now know it would have been men and women. But he said, if men were angels, no government would be necessary. If angels were to staff the government over man, no checks and balances would be necessary. However, in a government of men over men, there must be a way. First, we have to empower the government to control the governed and then oblige the government to control itself. And that’s really what we’re talking about here. Who will guard the guardians? And all we’re talking about is just tell us what your rules are and be transparent about it, to restore confidence in this critically important institution.

ISAACSON: You’re independent, but your caucus has a Democrat. The co- sponsor of our bill is Lisa Murkowski, who is a Republican. It sort of gives a veneer, at least, of bipartisanship. But it seems that even your proposals have run into very partisan opposition. Almost all of the Republicans, other than Senator Murkowski and a handful, have slammed it. Is there any way to get true bipartisanship on this issue?

KING: I don’t think so. I mean, it would be — well, I haven’t given up. I mean, we — Lisa and I haven’t done our missionary work yet. But as you say, the — Mitch McConnell went to the floor, I think the morning of our bill, and he wasn’t talking about our bill. He was basically saying, we’re not going to do anything with Supreme Court ethics. That’s an attack on the court. And this week was the hearing the Judiciary Committee on this issue and the Republicans basically took the position, anything you talk about the Supreme Court is an attack on the court, an attack on Justice Thomas. That’s not true. I mean, our bill is wholly forward-looking. It’s not retroactive, it doesn’t impose any penalties. It basically just says, a year from now, Supreme Court, tell us what your rules are going to be. Tell us the rules that you’re going to follow, make them public and then, let’s — we’ll move on as cases arise. But you’re right, the Republicans have decided that, you know, this is just unacceptable. Interestingly, Dick Durbin, the chair of the Judiciary Committee, wrote a letter to the chief justice on this issue in something like February of 2012 when Barack Obama was president. So, it’s not as if this issue has just arisen because of the ideological nature of the court, it’s arisen, I think we have to be honest with one another, because of these, I believe, outrageous revelations that have come out over the last couple of weeks, that’s what sort of highlighted the issue. But this is an issue that’s been around for a long time. And again, this whole thing would go away if the Supreme Court did it for itself what we are proposing. Our proposal is — couldn’t be more moderate, if you will, and that we are not saying what the rules should be, just tell us. You make your own rules, and tell us what they are.

ISAACSON: I really don’t get this. Why couldn’t you enlist a broad spectrum ideological in favor of something like this?

KING: Well, as I say, I haven’t given up. But the Republican caucus apparently has decided this is going to be a Rubicon, you know, a stand- your-ground issue. Lisa Murkowski is a person of enormous integrity and common sense. And, you know, she said, yes, this makes sense. Let’s do it. And I plan to talk to some of my colleagues. But, you know, sometimes, you are talking, you know, peer pressure. And as I say, the morning — I can’t remember the morning, I think it was last Wednesday, Mitch McConnell went to the floor and said, we’re not going to do this. And so, it became a caucus issue. But I think you’re right, I think it ought to be a bipartisan issue. It ought to be, you know, a 99 to 1 issue. It’s so straightforward. And consistent, again, with the rules that apply to every other judge in the country, state and federal.

ISAACSON: Tell me, why are we having such problems these days creating bipartisan consensus in the Senate and other places?

KING: I’m going to surprise you. I’m going to disagree a little bit. There’s is a lot more bipartisanship around here than people think. Number one, we don’t hate each other. If you are having trouble sleeping, go to C- SPAN and watch a vote on C-SPAN 2 in the Senate And what you will see is, I tell people in Maine, it looks like the dump on Saturday morning. You’ll see people milling around and chatting, almost always in a bipartisan way. You know, you will see John Cornyn it talking to Tim Kaine or Gary Peters over talking to Ron Johnson about homeland security. You see these little groups moving around. So, the idea that it’s — you hear the word toxic that we don’t like each other, that just isn’t true. That’s number one. Number two, in the past two years, we’ve passed, I think, seven or eight major bills, five of which were entirely bipartisan. The Infrastructure Bill, the Veterans’ PACT Act, the CHIPS and Science Act, the budget in December. The media only likes to report the conflict. It’s sort of like, you know, you never read a headline that says 5,000 planes landed safely yesterday. The story is about the plane that didn’t land safely. So, I don’t want to overstate it, it’s not like we’re all linking arms around here, but it is — it’s better than people think. And I hope that that can provide a basis for bipartisan work in the kinds of areas we are talking about, and that is the way it ought to work.

ISAACSON: Senator Angus King, thank you so much for joining us.

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