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The Legislative Intent Behind the Crow and Leo Subpoenas

On Thursday, Harlan Crow released a statement saying that “to this date [Senate Democrats] have not explained why this [subpoena] request is necessary to craft legislation.”

Okay.

Here’s a summary of some of the legislation being discussed right now that could be better informed once lawmakers know the full extent of the largesse Crow and Leonard Leo have given to Supreme Court justices:

1. Whether or not to legislate a full-on gift ban for federal judges and justices. Neither SCERT nor the new SCOTUS ethics code nor a recent Warren-Jayapal bill include such a ban, but this idea is under discussion.

2. How long a justice must recuse from a case or petition where a party gave him or her a gift. There’s a six-year “cooling-off” period in SCERT, but given the sizable gifts to justices uncovered of late — a 1999 RV loan, family member tuition gifted in 2008, luxury vacations dating back 20 years — six years might be too short.

3. How long a justice must recuse from a case or petition where an amicus filer gave him or her a gift. There’s a two-year “cooling-off” period in SCERT, but that might be too short.

4. With the Judicial Conference’s Financial Disclosure Committee dragging its feet (the Justice Thomas disclosure violations were referred to them in April, and there’s been no resolution of yet), and a lack of funding for Judiciary Committee investigative staff, there’s the question of how inquiries into Supreme Court ethics violations should be conducted. By an internal Ethics Counsel, an Ethics Investigations Office or by an Inspector General? Some combination thereof? Legislation is out there, but more information is needed to build consensus around the best proposal(s).

5. How best to craft an amicus-funding disclosure law. SCERT would require organizations filing an amicus briefs to disclose anyone who contributed to the preparation of the brief and anyone who had given them three percent of their operating budget in the previous year or $100,000 or more. The Judicial Conference is debating enacting similar rules (though 25% vs. 3% and a $5,000 contribution toward the brief vs. “any” contribution). Even so, there’s no guarantee the Conference will follow through, so legislation would be preferable.

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