Vermont’s junior U.S. senator, Democrat Peter Welch, has called on the U.S. Supreme Court to establish a code of ethics for its nine justices, and said he would support a legislative effort to intervene if the court fails to act.
But even as Justice Clarence Thomas faces heightened scrutiny for his activities both on and off the bench, Welch stopped short of calling on the justice to resign from his seat or face impeachment.
At a press conference Monday at Burlington International Airport, Welch told reporters that every other judge in the nation is subject to a code of ethics, including rules on accepting gifts and requirements to recuse themselves from cases in which they or their family members hold an interest in the outcome. For the highest court not to hold itself to the same standard is unacceptable, he said.
“The rule of law that is profoundly important to our country is fraying and is under assault,” Welch said. “The Supreme Court — and particularly Chief Justice (John) Roberts, who is the custodian for this reputation as the chief justice — could significantly improve judicial credibility if it adopted that code of conduct that applies to every single other judge in the country.”
A member of the Senate’s Judiciary Committee, which plays a key role in overseeing the country’s federal court system, Welch chastised Roberts for declining to testify before the panel last month about the court’s ethics amid a flurry of reporting on justices’ outside activities, particularly those of Thomas.
Welch said the best case scenario would be for the court to take it upon itself to institute a code of ethics. If Congress were to impose rules on the court, Welch said he worried about even the perception of political motivations — though he said he would be willing to take that step, and believes Congress has the authority to do so, if the court doesn’t act.
Asked if he believes Thomas should resign, Welch answered, “I don’t. That’s not what we’re talking about now.” Asked in a follow-up question if he is considering pursuing Thomas’s impeachment, he said no.
“This is why I don’t want (a code of ethics) to be done in the legislature, even though I do believe the legislature has authority, because it is just going to escalate what is already a very divisive situation,” Welch answered of the latter question.
He pointed to the tight partisan divide on the Senate Judiciary Committee — 11 Democrats to 10 Republicans, made even tighter by the continued absence of U.S. Sen. Dianne Feinstein, D-Calif. — and said, “It’s a very divisive, very divided committee. It could appear as though it’s a partisan agenda.”
Thomas, in particular, has faced increased scrutiny in recent months for his well-documented friendship with Republican mega-donor Harlan Crow, who bestowed upon Thomas thousands of dollars in gifts that Thomas opted not to disclose, as reported by ProPublica. Thomas also has faced criticism for refusing to recuse himself from cases before the Supreme Court that immediately or tangentially involved his wife, conservative activist Ginni Thomas.
Marilyn Skoglund, a former associate justice with the Vermont Supreme Court, joined Welch at Monday’s press conference. She pointed specifically to cases before the U.S. Supreme Court regarding the 2020 presidential election and the Jan. 6, 2021, riot at the U.S. Capitol.
Ginni Thomas was present at former President Donald Trump’s “Stop the Steal” rally that preceded the attack on the Capitol, and text messages show that she urged Trump’s chief of staff Mark Meadows to do whatever necessary to overturn the election. Yet, Justice Thomas has not recused himself from cases involving the riot or the 2020 presidential election, at large.
For any other state or federal judge in a comparable circumstance, Skoglund said, the only option would be, “Get off the bench. It’s not yours to decide on those disqualification issues.”
“What really, really concerns me is, what are the other justices thinking? Do they talk about this?” Skoglund said. “When Justice Thomas didn’t recuse himself from deciding whether or not the Supreme Court would release White House records that included some emails his wife had sent concerning the overthrow of the 2020 election, was there conversation? Are they concerned about the reputation of the court?”
Though Welch expressed confidence that Congress has the authority to impose a code of ethics upon the high court, there is debate over whether such an intervention would threaten the federal government’s constitutionally mandated separation of powers.
At Monday’s press conference, Andrew Manitsky, president of the Vermont Bar Association, said the best way to avoid such a conflict would be for the court to implement its own code. But absent that, he said he, too, believes Congress has the ability to step in.
“While separation of powers is part of our system, so is checks and balances, and that’s what this is all about,” Manitsky said. “We cannot continue to allow the highest court in the land to officially have the lowest ethical standards.”
In the meantime, Manitsky, Welch and Skoglund pointed to polling that shows Americans’ faith in the Supreme Court is at a record low.
Asked what message it sends to the American public for the court not to abide by ethical standards, Skoglund said, “I think it’s breathtakingly arrogant.”
“I just can’t even comprehend why they think they are exempt from a simple code of conduct that everyone else follows,” she said. “It makes no sense to me. I’m sorry, I can’t explain it.”