Every law student who has graduated from an American law school during the last-half century is familiar with one important imperative from the legal profession’s standards for ethical behavior: the need to avoid even the appearance of impropriety. That language is intentional. The concern isn’t just about actual wrongdoing; the mere appearance is sufficient to trigger scrutiny.
These standards aren’t merely a set of dos and don’ts for lawyers. Their purpose is to articulate a set of ethical rules that bolster a sense of public confidence and trust in a profession that far too often has seen instances of self-dealing, corruption, and fraud in client representation by its professional membership. Think “shysters” and “ambulance chasers.”
While Article III federal judges must follow their separate ethical requirements, there are no similar guidelines for United States Supreme Court justices. Recent incidents involving Associate Justices have sparked controversy over why the Supreme Court lacks its own ethical standards.
Justice Clarence Thomas is under attack for having received financial benefits (plush vacations, private-jet travel, and other family contributions) from a wealthy Republican donor. Justice Sotomayor is questioned about why she didn’t recuse herself in a case involving Random House, her autobiography’s publisher. While these attacks on the justices also reflect partisan overtones, there’s little doubt that as an important institution, the Supreme Court must now address growing concerns about its impartiality, integrity, and credibility.
When I served in the George H.W. Bush White House, the rules imposed by the president himself were straightforward and crystal clear: any gift you received in connection with your official responsibilities had to be turned over immediately to the White House Gift Unit. We took that admonition seriously.
As was inevitably the case, any gift that I might be remotely interested in keeping I never saw again. Those gifts in which I had zero interest in keeping were always “cleared” and returned to me. Thanks to the Gift Unit’s careful scrutiny, I ended up with lots of corporate ballpoint pens and a few too many East Coast Tuna Association caps.
I recall an instance where I gave a speech to a business group one afternoon at the Hay-Adams Hotel across Pennsylvania Avenue from the White House. As I was leaving the stage, the group’s host warmly presented me with a gift of appreciation. When I tried politely to say “no,” he insisted that I take the present that was wrapped in a nondescript, brown paper bag: an entire side of smoked salmon.
As I walked back to my West Wing office, I thought: well, what if I just dropped off the bag in my car parked on nearby West Executive Avenue. Who would know? Who would care? If ever queried about the perishable salmon, I could always say that my dog happened across the bag and tore into it. Nope. Not worth it.
When I returned to my office, I said to my assistant, “Peggy, there’s a dead fish inside this bag. Please deliver it promptly to the Gift Unit with the suggestion that it be forwarded immediately to the White House Mess for refrigeration.” I never saw (let alone tasted) that salmon again.
The applicable rules need not be complicated. For example, if a federal official receives a pricey California wine for Christmas from an in-law, no harm, no foul. That same bottle, if given by a non-family member or lobbyist, raises questions. There are, of course, gift rules for the Executive and Legislative branches and lower federal courts. Why should the Supreme Court be treated differently?
The issue for today’s Supreme Court is the one posed by Plato and Juvenal: who will guard the guardians? Given our constitutional separation of powers, the appropriate Supreme Court ethical standards should not be legislated or imposed by the Congress. The relevant Supreme Court standards should be derived, published, applied, and monitored publicly by the Supreme Court itself.
The allegations today surrounding Justices Thomas, Sotomayor (and, possibly, other of their brethren) must be judged on the basis of the current standards and practices applicable to the Supreme Court. At the same time, Chief Justice Roberts must now take the lead in promulgating future standards and practices that will help restore the Supreme Court’s standing with the American people. Full disclosure and transparency must be the governing norm.
There’s another saying that most American lawyers will also remember from law school: Justice Louis Brandeis’ belief that sunlight is the best disinfectant.
Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990 to 1992 in the George H.W. Bush White House. He is currently writing a biography of former OMB General Counsel and international human-rights advocate, Michael J. Horowitz.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.