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Ethics Watch: SCOTUS Nominee Neil Gorsuch, And The Rules That Won't Apply If He's Confirmed

Assuming Neil Gorsuch is confirmed to sit on the Supreme Court, he and President Trump will share a rare distinction: Neither is subject to formal ethical regulation, writes Andrew Grainger. Pictured: Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court. (Carolyn Kaster/AP)
Assuming Neil Gorsuch is confirmed to sit on the Supreme Court, he and President Trump will share a rare distinction: Neither is subject to formal ethical regulation, writes Andrew Grainger. Pictured: Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court. (Carolyn Kaster/AP)
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COMMENTARY

Assuming Neil Gorsuch is confirmed to sit on the Supreme Court, he and President Trump will share a rare distinction: Neither is subject to formal ethical regulation, including prohibitions against conflict of interest. Only the president and the justices of the U.S. Supreme Court enjoy this privilege.

The contentious nomination process that is about to unfold is unlikely to be concerned with questions of ethics. The reasons for this are historical. Our founders did not perceive individuals who aspired to these high positions to be motivated by financial gain. For several centuries, this belief was not as naive as it may seem today. We have always understood that power and fame are sought in public service, but economic advantage has been far more accessible in other walks of life. In addition, the decentralized construct of our democracy has traditionally provided a safeguard against abuses evident in regimes characterized by strong power in the hands of a few.

“It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.”

Charles Krauthammer

Past is not prologue. The president can ignore ethical norms, not just because there are no formal rules governing the office of the president, but because we have abandoned a widespread view of proper behavior that has characterized most of our history. The problem did not originate with this president, who owns (regardless of legal construct) a hotel within sight of the White House, and who will negotiate its lease with his own appointee. Attempts by his political opponents to generate public indignation about this, or many other of the president's reprehensible words and deeds, have been ineffective.

We did not arrive at this juncture without signposts. In March of 2004, Justice Antonin Scalia went duck hunting with Vice President Dick Cheney while the Supreme Court was hearing a case in which Cheney was the defendant. Characteristically, Scalia scoffed at those who questioned his judgment, writing that if people assumed a duck hunting trip would be enough to swing his vote, “the nation is in deeper trouble than I had imagined.” Scalia knew very well that he was one of only nine judges in the United States not subject to formal Code of Judicial Conduct. (In Plutarch's "Life of Julius Caesar," we learn that the Roman dictator and general divorced his wife Pompeia not because he had evidence of her rumored adultery, but because she "ought not even be under suspicion." The same should be true of our president and nine Supreme Court justices.)

Canon 2 of the Code is straightforward: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

To be sure, Scalia’s transgression was not overt corruption. By contrast, it was plainly illegal when Vice President Spiro Agnew reputedly accepted bags of cash across his desk in the Executive Office Building as kickbacks from contractors, resulting in a plea of no contest to a charge of income tax evasion and his resignation.

Scalia’s behavior, I would argue, was the more insidious. His reply to criticism was skillful as well as defensive. In the moment, no proximate measurable harm could be demonstrated. But cutting corners is a hard habit to break not only for individuals, but for society.

When Justice Clarence Thomas’ wife, Virginia Thomas, boasted on her former lobbying firm’s website that her “experience and connections” would help clients with “governmental affairs efforts” and political donation strategies, no formal rules were broken. Only ethical norms were violated. Similarly, when the Senate Republicans refuse to hold hearings on a Supreme Court nominee, or public officials spend eight years impugning the constitutional legitimacy of a sitting president, ethical principles, but no laws, are violated.

The power of ethical principles in our society was recently dramatically illustrated by the failure of the surreptitious attempt to gut the Office of Congressional Ethics. Once again, no laws were broken. Public reaction nevertheless demonstrated that, when norms of principled behavior are both widespread and strong enough, enforcement doesn't necessarily require formal rules. Likewise, we can't quantify the damage to Hillary Clinton's candidacy caused by perfectly legal donations to the Clinton Foundation, but we can sense it.

We should bring our 10 outliers into the fold of ethical regulation and remove ambiguity about what we, as a citizenry, expect.

We need carefully worded rules, regulations and laws in our complex society. Basic notions of due process require specific triggers if we are to punish wrongdoing, measure injuries we wish to redress, or simply rearrange a huge universe of rights and obligations. But rules and laws specifically governing ethics act as a realistic enforcement mechanism only when ethical assumptions have general support.

We should bring our 10 outliers into the fold of ethical regulation and remove ambiguity about what we, as a citizenry, expect. This is not a partisan issue. The conservative columnist Charles Krauthammer has eloquently described the present danger: “It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.”

Related:

Andrew Grainger Cognoscenti contributor
Andrew Grainger is a retired associate justice of the Massachusetts Appeals Court. He has been designated a senior Fulbright scholar by the U.S. Department of State. He has taught legal courses in numerous foreign universities, and also teaches locally.

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