Top Democrat tries to school Justice Alito in growing tiff over Supreme Court oversight

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A top Senate Democrat blasted Supreme Court Justice Samuel Alito for expressing his views on a controversial bill to institute a mandatory code of conduct on the nation's highest tribunal.

"Let’s be clear: Justice Alito is not the 101st member of the United States Senate. His intervention in Article I activity is unwise and unwelcome," Senate Judiciary Chairman Dick Durbin, D-Ill., said in a statement Wednesday. 

Durbin's comments come as a direct response to Alito, who in a recent Wall Street Journal interview criticized a new bill pushed by Durbin and his Democrat colleagues that would impose new ethics rules on the justices.

"Congress did not create the Supreme Court," Alito told the Journal, adding that the Constitution did.

"I know this is a controversial view, but I’m willing to say it," he said. "No provision in the Constitution gives them the authority to regulate the Supreme Court — period," he added.

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Supreme Court Justice Samuel Alito. (Erin Schaff/The New York Times via AP, Pool, File)

Durbin continued to fire back at Alito's comments, saying he is "providing speculative public commentary on a bill that is still going through the legislative process." 

"The ethical conduct of Supreme Court Justices is a serious matter within this Committee’s jurisdiction. Ensuring ethical conduct by the justices is critical to the Court’s legitimacy," he said.

"I’ve said from the beginning of this inquiry: if the Court does not act on ethics reform, Congress will. We advanced a bill to do so last month, and we will continue our push to ensure that the highest court in America does not have the lowest ethical standards," Durbin said.

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In the wake of reports from ProPublica about a 2008 fishing trip Justice Alito took with a GOP billionaire and vacations that Justice Clarence Thomas took with GOP donor Harlen Crow, Democrats on the Senate Judiciary Committee devised the Supreme Court Ethics, Recusal, and Transparency Act, which cleared the committee in a party-line vote last month. 

That bill, its sponsors claim, would require Supreme Court justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court and require justices to explain their recusal decisions to the public.

However, Republicans and some legal experts contend that ethics rules already exist through a governing body, the Judicial Conference, that sets disclosure regulations to which all the justices have claimed they have strictly adhered. 

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Sen. Dick Durbin, D-Ill. (Drew Angerer/Getty Images)

All the justices, including Alito, say they voluntarily follow those disclosure statutes that apply to lower-court judges and executive-branch officials. 

Sen. John Kennedy, R-La., who also sits on the committee, called the bill "dangerous" and "unserious."

"You don't have to be ‘Oliver Wendell Scalia’ to figure out that this legislation is meant to be a court-killing machine," the Louisiana Republican charged.

"It would allow any jackaloon out there in America in a tinfoil hat, whose own dog thinks he’s an utter nutter, to file a motion to recuse a United States Supreme Court Justice."

"Now, what could possibly go wrong? And my Democratic colleagues know that," Kennedy said. 

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The measure's fate for a full Senate floor vote appears grim, with Kennedy adding that it is as "dead as a fried chicken," indicating that it does not have the 60 votes required to move forward.

Sen. John Kennedy, R-La., says Democrats' Supreme Court ethics bill is "as dead as a fried chicken." (Eric Lee/Bloomberg via Getty Images)

The bill has yet to be scheduled for a full Senate vote.