John Roberts calls Dick Durbin's bluff, declines ethics testimony invite

Chief Justice John Roberts is practically begging for a subpoena. He must think that Senate Judiciary Chairman Dick Durbin, D-Ill., won’t push for one. He may be right.

But that doesn’t make Roberts’ refusal to testify to the committee any less pathetic. The chief justice sent Durbin a letter on Tuesday declining the senator’s invitation to testify May 2 about the court’s ethical issues. The invitation was prompted by ProPublica’s reporting on Justice Clarence Thomas’ undisclosed gifts from GOP megadonor Harlan Crow, which raised questions of whether Thomas broke the law and highlighted how the justices aren’t bound by an ethics code like their lower-court colleagues are.

Thomas said after the reporting emerged that he didn’t think he had to disclose what he characterized as personal hospitality from a longtime friend who didn’t have business before the court, though reporting from Bloomberg on Monday revealed that Crow did have business before the court in at least one case. Yet, Durbin didn’t even invite Thomas to testify because he thought that Thomas would ignore the invitation (yes, he actually said that Sunday on NBC's “Meet the Press”). Durbin said that instead it would be better for Roberts to testify, which didn’t make sense as an explanation then, but now even Roberts has rejected Durbin’s half-measure.

So let’s examine Roberts’ letter to Durbin, which doesn’t make sense, either. In it, Roberts said that he “must” decline Durbin’s invitation. When a lawyer or judge (or the highest judge in the land) uses such a strong word, one would think that the rest of the letter would justify that strong conclusion. It does not.

Roberts noted that it’s “exceedingly rare” for chief justices to testify before the Senate Judiciary Committee, citing “separation of powers concerns and the importance of preserving judicial independence.” He said that there were only two prior instances of chief justices testifying to the committee, in 1921 and 1935, and that both instances involved “routine matters of judicial administration.” Roberts further noted that his predecessor as chief, William Rehnquist, appeared twice before House committees but also on “mundane topics.” Roberts added that several of his other chief predecessors never appeared before congressional committees at all.

But none of that history justifies Roberts’ conclusion. It’s not so much an argument as it is just listing a bunch of things that did or didn’t happen before, without doing the work of connecting those things to the conclusion that he therefore “must” decline Durbin’s invitation. The implication of Roberts’ letter is that it might be appropriate for him to testify if it were about a mundane or routine subject, but that this situation is simply too extraordinary to warrant his appearance. Yet, that argument actually makes things worse, because it serves to highlight the extreme circumstances in which the Roberts Court finds itself.

Roberts’ recitation of history is also misleading and not fully responsive to Durbin’s letter. Importantly, Durbin invited not only Roberts but, alternatively, another justice designated by Roberts. Roberts doesn’t address that in his letter or the history of other, non-chief justices testifying to the committee.

Given the chief’s response, it’s clear why he ignores non-chiefs, because it would blow up his argument. As Durbin noted in his invitation to Roberts, other justices testified to the committee in 2011 about ethics matters. Roberts was chief in 2011 and is undoubtedly aware of this relatively recent history. In fact, in his 2011 year-end report, Roberts tried to justify why his court didn’t need to be bound by the ethics code that binds lower court judges, a conclusion that he reemphasizes in his letter to Durbin, which ends by claiming that the justices “subscribe” to certain ethics principles and practices — presumably, the justices could choose at any point to unsubscribe, like from a newsletter or magazine.

Amazingly, reporting from that 2011 hearing, where Associate Justices Stephen Breyer and Antonin Scalia appeared, reminds us that everything old is new again. I had to double-check the date on this 2011 New York Times report, which stated:

So these are not new issues — the characters aren’t even new — nor is it new for Supreme Court justices to testify on this very subject. There’s nothing special about being chief. But if Roberts is so concerned about the “separation of powers” or “judicial independence” implications of congressional oversight of a chief justice — an argument that collapses under its own weight — then he should just have associate justices testify this time.

Indeed, according to Roberts’ letter — what it states and what it omits — he effectively makes a case not only for subpoenaing the chief, whose testimony, if his letter is any indication, might be pretty useless anyway, but for going straight to the source and subpoenaing Thomas.