News: Judge Luttig warns the Supreme Court on ethics

Tuesday, May 2, 2023

Judge Luttig warns the Supreme Court on ethics

May 02, 2023

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By Ryan Lizza, Rachael Bade and Eugene Daniels

Presented by

With help from Eli Okun and Garrett Ross

J. Michael Luttig listens during a hearing at the Capitol.

J. Michael Luttig’s public commentary on the suddenly fraught issue of Supreme Court ethics is particularly noteworthy because he is a longtime friend of several conservatives on the court. | J. Scott Applewhite/AP Photo

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DRIVING THE DAY

PENCILS DOWN — “Hollywood writers strike over streaming pay after talks fail,” by the L.A. Times’ Anousha Sakoui: “The walkout, which could last for weeks or months, is expected to halt much of TV and film production nationwide.”

JUST POSTED — “Leonard Leo used Federalist Society contact to obtain $1.6 billion donation,” by Heidi Przybyla: “The unusual arrangement in which Leo met his top donor through the prestigious Federalist Society — which describes itself as a nonpartisan educational organization — suggests closer ties between the society and Leo’s activist network than previously known.”

NEW X DATE — The debt-limit clash went suddenly from potential slow-motion train wreck to potential high-speed car crash yesterday, after Treasury Secretary JANET YELLEN announced after markets closed that the government could stop paying interest on its debt as soon as June 1 — far earlier than most recent forecasts.

Within an hour, President JOE BIDEN had reached out to congressional leaders to schedule a May 9 meeting to discuss the impending deadline and the need to raise the debt ceiling and avert a potential economic calamity.

Burgess Everett and Caitlin Emma break down what’s next: “One party or the other is going to have to blink in the debt ceiling standoff. The question is when. …

“The House and Senate are scheduled to be in session simultaneously for just two weeks this month. And with potentially less than 30 days to get the job done, Senate Democrats are now openly discussing the prospect of bringing a clean debt ceiling increase to the floor — effectively daring the GOP to either buckle and advance the bill or filibuster it.”

Meanwhile, there’s little sign the timeline jolt has softened anyone’s positions. Senate Republicans told Burgess and Caitlin that it will be up to Biden and House Speaker KEVIN McCARTHY to strike a deal, while Democrats insisted a debt-limit hike must remain off limits to hostage-taking (while remaining open to budget talks that would have to take place regardless of the debt deadline).

And the feeling at the White House is mutual, Adam Cancryn, Jennifer Haberkorn and Jonathan Lemire report. Biden has no plans, a senior administration official tells them, to come down off his current clean-hike-or-bust negotiating position.

“If you need to hear again that it’s your responsibility to address the debt ceiling without conditions and a ransom,” the official said, “then he can say that again.”

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FIRST IN PLAYBOOK: EXCLUSIVE SCOTUS ETHICS TESTIMONY — This morning at 10 a.m. the Senate Judiciary Committee will hold a hearing on Supreme Court ethics reform.

The witnesses are not exactly household names: Democrats have called JEREMY FOGEL, a former federal judge who is now executive director of the Berkeley Judicial Institute; AMANDA FROST, a UVA law professor; and KEDRIC PAYNE of the Campaign Legal Center, while Republicans have invited former Attorney General MICHAEL B. MUKASEY and THOMAS H. DUPREE JR., a partner at Gibson, Dunn & Crutcher.

Democrats invited two much bigger names to testify: J. MICHAEL LUTTIG, the conservative former federal judge who advised MIKE PENCE of his limited role in the counting of Electoral Votes on January 6, and liberal Harvard Law professor LAURENCE TRIBE. Both men declined to appear in person but they agreed to submit written statements to the committee. Playbook obtained copies of both statements ahead of today’s hearing.

Luttig’s public commentary on the suddenly fraught issue of Supreme Court ethics is particularly noteworthy, because he is a longtime friend of several conservatives on the court, including the one at the center of recent controversies: CLARENCE THOMAS.

Luttig sticks to broad constitutional arguments in his statement, empathizing that the Court’s “power is greater or lesser as respect for its judgments by the American People waxes and wanes, ebbs and flows.” While he doesn’t mention the details of recent opinions and ethical controversies, the context is clear.

“It is the Supreme Court’s duty to acquit itself in the discharge of its judicial responsibilities so as to continually assure and reassure the American people that its judgments are deserving of respect,” Luttig writes. The justices, he adds, have a duty “to conduct themselves in their non-judicial conduct and activities in such a manner that they are individually deserving of respect — indeed, beyond reproach, not only in fact, but also in appearance. This, at all times and places, in both public and in private.” Read Luttig’s full statement

On the key question of whether Congress can legislate standards for Supreme Court Justices, Luttig thinks there is little debate.

Congress “indisputably has the power” to “enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities” of SCOTUS, Luttig writes, adding that “it would hardly be a constitutional crisis or anything of the sort” for Congress to do so.

Close watchers of the small and clubby world of federal judges on the right will take note of this somewhat dense line that hints at how the recent ethical questions swirling around Thomas and others are degrading the authority of the court:

“[T]o whatever extent the Court does not subject itself to the highest possible professional and ethical standards — or only grudgingly does so — to an even greater extent does it depreciate not only its power to preserve, protect, and defend the institution of the Supreme Court, it also depreciates its power to preserve, protect, and defend the Constitution of the United States, which is the high charge that the American People have bestowed upon the Supreme Court.”

Tribe, in his statement, agrees with Luttig on the big constitutional question raised by the hearing but is also a little more direct:

“I see no constitutional obstacle to enactment of a fully enforceable federal statute not only creating far greater transparency than the Supreme Court seems to have been willing to impose on itself but also requiring considerably more modest interactions between Justices and those who, whether to curry favor or simply to enjoy the privileges of wealth and position, wine and dine the Justices under conspicuously lavish circumstances unlikely to be enjoyed by most lower court judges or indeed by most individuals whether in public or in private life.” Read Tribe’s full statement

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NEW TOOBIN BOOK — NYT bestselling author Jeffrey Toobin’s new book, “Homegrown: Timothy McVeigh and the Rise of Right-Wing Extremism” ($29.99) is out today. Jeff emailed Playbook with a preview:

“Homegrown is meant to show that the conventional view of McVeigh — as an ‘antigovernment’ ‘lone wolf’ — is wrong. Rather, he was a right-wing extremist who was part of the conservative movement opposing BILL CLINTON’s federal government, not all government. McVeigh’s views — obsessions with gun rights, violence and the Founding Fathers — have flourished in recent years, as seen most dramatically on January 6, 2021. Much of the book explores the connections between McVeigh’s views and his heirs today.

“Two decades ago, STEPHEN JONES, McVeigh’s lead attorney, donated his entire file on the case, including records of all his interviews with McVeigh, to the Briscoe Center at the University of Texas. It’s 635 boxes, about a million documents, and almost no one had looked at them. I did. I found lots of new material to provide a fuller picture of McVeigh. For example, McVeigh was a dedicated RUSH LIMBAUGH dittohead who used photos of HILLARY CLINTON’s face for target practice in the fields of Kansas.

“I had long interviews with Bill Clinton (arguably the hero of the book) and MERRICK GARLAND, who supervised the prosecution as a Justice Department official in the nineties. Garland’s experience in Oklahoma City is clearly shaping his conduct of the [DONALD] TRUMP investigation.”

Good Tuesday morning. Thanks for reading Playbook. Drop us a line: Rachael Bade, Eugene Daniels, Ryan Lizza.

BONUS POD — On Saturday Ryan teamed up with CBS News chief Washington correspondent Major Garrett, who also hosts The Takeout podcast, for a special live broadcast before the WHCA dinner. They interviewed an assortment of high-profile attendees, including Sen. MARK WARNER (D-Va.), former Arkansas Gov. ASA HUTCHINSON, comedian ROY WOOD JR., impressionist MATT FRIEND, CBS News’ NANCY CORDES and NY Mag’s OLIVIA NUZZI (not sure how she got the booking!). Listen to the show

STONE GOES NUCLEAR — Speaking of Cordes and Nuzzi, both journalists were on hand last night at the Navy Memorial to interview OLIVER STONE after a screening of Stone’s new documentary, “Nuclear Now,” which makes the case that nuclear power is the answer to solving the climate crisis. Given the controversies Stone films have kicked up over the years, we were somewhat surprised by the doc’s fact-based, empirical tone. Despite the continuing opposition to nuclear power from many environmentalists, the Biden administration has been more nuclear-friendly than is generally known, a point noted by Cordes and Stone during a conversation after the film. Watch the trailer

BIDEN’S TUESDAY — The president will receive the President’s Daily Brief at noon.

Press secretary KARINE JEAN-PIERRE will brief at 1 p.m.

VP KAMALA HARRIS’ TUESDAY — The VP and second gentleman DOUG EMHOFF will host Philippine President FERDINAND MARCOS JR. and LOUISE ARANETA-MARCOS for brunch at their residence at 9:50 a.m.

THE SENATE is in, with a recess from 12:30 p.m. to 2:15 p.m. for weekly conference meetings. Interior Secretary DEB HAALAND will testify before the Energy and Natural Resources Committee at 9:30 a.m. The Judiciary Committee’s Supreme Court hearing will be at 10 a.m.

THE HOUSE is out.

HAPPENING NOW! GO INSIDE THE 2023 MILKEN INSTITUTE GLOBAL CONFERENCE: POLITICO is proud to partner with the Milken Institute to produce a special edition "Global Insider" newsletter featuring exclusive coverage and insider nuggets from the 2023 Global Conference, which will convene leaders in health, finance, politics, philanthropy and entertainment from May 1-4. Don’t miss a thing — subscribe today for a front row seat.

PHOTO OF THE DAY

President Joe Biden takes selfies with guests during a reception celebrating Eid-al-Fitr in the East Room of the White House.

President Joe Biden takes selfies with guests during a reception celebrating Eid-al-Fitr in the East Room of the White House on Monday, May 1. | Alex Wong/Getty Images

PLAYBOOK READS

2024 WATCH

ANOTHER ONE BITES THE DUST — Virginia Gov. GLENN YOUNGKIN said at a WSJ event yesterday that he won’t be hitting the presidential campaign trail this year, the Richmond Times-Dispatch’s David Ress recaps, focusing instead on the state-level elections in Virginia this November. Of course, 2024 is not technically this year. But this is the most definitive “no” we’ve gotten from Youngkin. (As Phil Kerpen notes, many key Youngkin allies are aboard Florida Gov. RON DeSANTIS’ pre-campaign, so it’s hard to see Youngkin running while DeSantis is.)

MARK YOUR CALENDARS — The presidential town halls return: Trump will sit down with moderator Kaitlan Collins for a CNN town hall at Saint Anselm College in Goffstown, N.H., on May 10. He’ll take questions from Republicans and other GOP primary voters in the crucial first-in-the-nation state.

Almost unbelievably, this will be Trump’s first time appearing on CNN since he first ran for president in the 2016 campaign. Alex Isenstadt notes that his choice of CNN amounts to “an implicit rebuke of Fox News,” as well as a re-engagement with the mainstream media (at a moment when DeSantis is doing more than any other Republican to advocate not engaging with them). Collins won’t be a softball interviewer, and Alex reports that the town hall came after months of talks with CNN. His team is also discussing sitdowns with NBC and other outlets.

MORE POLITICS

BATTLE FOR THE SENATE — Rep. COLIN ALLRED (D-Texas) is planning to mount a campaign against Sen. TED CRUZ (R-Texas), with an announcement coming as early as this week, Daniella Diaz, Ally Mutnick and Nick Wu scooped. Giving up a safe seat in the Dallas suburbs, the popular lawyer and former NFL star is making a bid to replicate the 2018 run of BETO O’ROURKE, but he’ll need to do even better than O’Rourke did in a big Democratic year.

EYES EMOJI — Time’s @EricCortellessa: Rep. DAVID TRONE (D-Md.) “has told associates that he’s prepared to spend $50m of his own money if he enters” the Maryland Senate race.

THE MOST ENDANGERED SENATOR — “Storm Clouds Gather for Joe Manchin in West Virginia,” by WSJ’s Eric Bazail-Eimil in Wheeling

THE WHITE HOUSE

HEAD-SCRATCHER — “Muslim NJ mayor demands answers after being turned away from White House Eid celebration,” by the Asbury Park Press’ Hannan Adely: “Prospect Park Mayor MOHAMED KHAIRULLAH said he was informed that the Secret Service denied him security clearance.”

WHAT BOB MENENDEZ IS READING — “White House Considers Two Key Nominations at the Fed,” by NYT’s Jeanna Smialek and Jim Tankersley: “Mr. Biden is close to nominating ADRIANA KUGLER, an economist with Colombian heritage who is the U.S. executive director of the World Bank, to the Fed’s only remaining open governor position. In a corresponding move, he is likely to elevate PHILIP JEFFERSON … to be the board’s vice chair.”

EYES ON THE SKIES — “Biden eyes Mike Whitaker for FAA administrator,” by Axios’ Hans Nichols and Joann Muller

THE ECONOMY

BANK ON IT — After JPMorgan Chase swooped in to buy the troubled First Republic Bank early yesterday, a familiar debate from the 2008-9 financial crisis aftermath reemerged: whether some banks are getting too big to fail, WaPo’s David Lynch, Jeff Stein and Rachel Siegel report. Sen. ELIZABETH WARREN (D-Mass.) and others warned (hopelessly, of course) that major legislative reforms are needed to correct the failures of recent deregulation. JPMorgan’s JAMIE DIMON fired back that “we need large, successful banks in the largest and most prosperous economy in the world.”

NYT’s Maureen Farrell, Matthew Goldstein and Lauren Hirsch have a tick-tock of how the sale came together this weekend that neatly encapsulates the debate: Though there are safeguards in place to prevent banks from getting too big, they were jettisoned in the face of possible financial crisis. The FDIC told JPMorgan it had won First Republic at about 1 a.m. yesterday, seemingly the capstone that has “quelled nearly two months of simmering turmoil in the banking sector that followed the sudden collapse of Silicon Valley Bank and Signature Bank.”

Later that same day, the FDIC put out a report calling for major reforms to deposit insurance, Bloomberg’s Katanga Johnson reports. Moving to a “targeted coverage” approach, if Congress passed it, “would be one of the most significant policy changes to stem from the recent banking crisis.” The report

CONGRESS

BURSTING THE TUCKER CARLSON BUBBLE — “U.S. Speaker McCarthy: Russia must pull out of Ukraine,” by AP’s Lisa Mascaro: “In Israel on his first trip abroad as speaker, McCarthy emphatically stressed his support for Ukraine and rejected a suggestion that he does not support sending military and financial aid to Kyiv.”

THE UNDRAINED SWAMP — “Some of the billions in farm bill funds could flow to lawmakers writing the bill,” by Garrett Downs

TRUST BUT E-VERIFY — “The Republican border bill is in limbo over a crackdown on illegal workers,” by Semafor’s Kadia Goba

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JUDICIARY SQUARE

BIG SCOTUS CASE — The Supreme Court said yesterday that it will take up a case next term that could overturn the longstanding precedent of “Chevron deference,” whereby the courts have allowed federal agencies leeway in their judgment when interpreting unclear statutes. It’s long been a target of the right, which wants judges to be able to assert more power over the federal bureaucracy. This case, which centers on a fishing vessel regulation, could be a vehicle for the high court to overturn or further narrow the 1984 ruling. More from NBC

It could especially spell doom for the Biden administration’s actions on climate and the environment, Josh Gerstein reports. And it’s “another signal that the court’s conservatives have not tired in their efforts to weaken the administrative state.”

NIGHT OF THE HUNTER — “Hunter Biden must answer more questions about his finances and art sales in Arkansas paternity case, judge says,” by CNN’s Marshall Cohen

TRUMP CARDS

LATEST FROM THE CARROLL/TRUMP TRIAL — “Trump accuser defends rape claim after judge rejects Trump’s mistrial request,” by Reuters’ Jonathan Stempel and Jack Queen: E. JEAN CARROLL “said she hides her inner suffering in her role as an advice columnist, and that going to parties related to her lawsuits against Trump and stating publicly she was doing ‘fabulous’ didn’t mean she was lying about him.”

THE INVESTIGATIONS — “Trump’s Lawyers Fight Bragg’s Effort to Limit Access to Evidence,” by NYT’s Jonah Bromwich and William Rashbaum … “Fulton judge extends deadline for DA to reply to Trump motion to kill probe,” by The Atlanta Journal-Constitution’s Tamar Hallerman

TRUMP ABROAD — “Trump travels to Scotland to open golf course amid NY trial,” by AP’s Meg Kinnard: “Trump and his son ERIC were greeted by two pipers, a red carpet and a 10-vehicle motorcade at Aberdeen International Airport.”

AMERICA AND THE WORLD

BALLOON DISCOURSE RETURNS — “U.S. military is tracking another mysterious balloon,” by NBC’s Courtney Kube and Carol Lee

IMMIGRATION FILES — “Biden administration to let Afghan evacuees renew temporary legal status amid inaction in Congress,” by CBS’ Camilo Montoya-Galvez

THE MARCOS VISIT — “Amid China pressure, U.S. and Philippines recommit to security alliance,” by Reuters’ Jeff Mason, Trevor Hunnicutt and David Brunnstrom: “Biden told his counterpart FERDINAND MARCOS JR. on Monday that the U.S. commitment to the defense of its ally was ‘ironclad,’ including in the South China Sea.”

BEYOND THE BELTWAY

DEMOCRACY WATCH IN MONTANA — “Rep. Zephyr sues to restore access to Montana House floor,” by the Billings Gazette’s Sam Wilson

THE WHEELS ON THE BUS WILL KEEP GOING ROUND — “Texas Gov. Greg Abbott promises to keep busing migrants to Democratic cities,” by NBC’s Natasha Korecki in Chicago

MEDIAWATCH

THEY COME WITH PRICES — “Vice Is Said to Be Headed for Bankruptcy,” by NYT’s Lauren Hirsch and Benjamin Mullin

ROBERT ALLBRITTON’S NEXT MOVE — “Politico’s founder is spending $20 million to train aspiring journalists,” by Semafor’s Max Tani: The Allbritton Journalism Institute “will train aspiring reporters from different backgrounds and who have different views to create ‘fact-based, non-partisan journalism on government and politics’ that is ‘both empathetic and brutally honest.’ The institute will launch a yet-to-be-named news organization that will publish work from the fellows, as well as well-known reporters and editors who will serve as mentors.” Check out the AJI website

WHISKEY TANGO FOXTROT — “Photog Was Warned Over Taking White House Creepshots,” by The Daily Beast’s Justin Baragona

The McCain Institute will convene its 10th annual Sedona Forum on May 5-6, featuring lawmakers, journalists, military leaders, business executives, and more. This year’s theme, “Indispensable Power,” will examine the diplomatic, military, and economic means employed to protect democracy, human rights, and the global competitive edge. Established by Senator John McCain, the Sedona Forum is held each spring in the red rock country of Sedona, Arizona, to advance the mission of the McCain Institute – fighting for democracy, human dignity, and security. Visit TheSedonaForum.org to register for the livestream today.

PLAYBOOKERS

Dan Crenshaw fanboyed over Lisa Vanderpump.

The Fallen Journalists Memorial Foundation has gotten site approval to start working on a new National Mall memorial honoring journalists who have died on the job.

Jeff Stein may be in for a wild June.

The Brookings Institution and its staff union have reached an initial yearlong agreement on a range of issues.

Emma Tucker is axing the WSJ’s style practice of writing out company suffixes.

IN MEMORIAM — “Vincent Stewart, trailblazing Marine general who led DIA, dies at 64,” by WaPo’s Harrison Smith and Dan Lamothe: “As head of the Defense Intelligence Agency from January 2015 to October 2017, he advised the president, lawmakers and the chairman of the Joint Chiefs of Staff on global threats and national security issues.”

OUT AND ABOUT — SPOTTED at a POLITICO Milken Institute Global Conference event featuring Eugene Daniels and Jonathan Martin in conversation with James Carville yesterday at the Peninsula Beverly Hills: House Democratic Caucus Chair Pete Aguilar (D-Calif.), Chip Bergh, Sasha Issenberg, Rene Jones, Matt Kaminski, Maria Teresa Kumar, Steve Levitan, Drew Maloney, Dee Dee Myers, Heather Podesta, Todd Purdum, Leslie Shedd and Antonio Villaraigosa.

WHITE HOUSE ARRIVAL LOUNGE — Jennifer Hunt is now senior adviser for public engagement, overseeing veterans and military and family engagement, for the Executive Office of the President. She previously was Veterans Service Organization liaison at the VA.

MEDIA MOVE — Nicole Carroll is joining the Arizona State University Media Enterprise as executive director of a new local journalism initiative. She previously was editor-in-chief of USA Today.

TRANSITIONS — Sen. Ted Cruz (R-Texas) is adding Aaron Reitz as chief of staff, as Steve Chartan leaves for the private sector (he’ll remain a Cruz political adviser). Reitz most recently has been a Texas deputy AG. Cruz is also elevating Chris Jaarda to deputy chief of staff for policy and Carl Mica to deputy chief of staff for operations. … Jordan Colvin is now VP at Gray Space Strategies. She previously was advocacy director at the Institute of Internal Auditors and is a Josh Gottheimer and Ron DeSantis alum. … Jami LaRue is now member services and outreach adviser to the Democratic Women’s Caucus. She previously was press secretary/digital director for Rep. Rosa DeLauro (D-Conn). …

… Annie Wu Henry is now creative director for AAPI Victory Fund and digital consultant for the Working Families Party. She previously was social media producer for John Fetterman’s Pennsylvania Senate campaign. … Jared Soncrant is now a senior manager at Invariant. He previously was a legislative assistant for House Majority Leader Steve Scalise, focusing on energy and natural resources. … Jade Bernad is now an adviser on talent and celebrity relations at the Ad Council. She previously was director of entertainment and culture at Civic Nation.

BIRTHWEEK (was yesterday): Kathryn Chakmak

HAPPY BIRTHDAY: CNN’s Poppy Harlow … Sen. Peter Welch (D-Vt.) … Indiana Gov. Eric Holcomb (55) … Mika Brzezinski … Steve Elmendorf … Jeff Butler … Karen Doyne … MSNBC’s Jesse Rodriguez … Daniel Kroese … POLITICO’s Andrew McGill, Andrew Atterbury and Justine Lore … Rick Stengel … Axios’ Nick Sobczyk … Megan Harrington … Russ Sullivan of Brownstein Hyatt Farber Schreck … Taylor Lioce … Push Digital’s T.W. Arrighi … Emily Tisch Sussman … BofA’s Bess Evans … Nate Zimpher … Cogent Strategies’ Will Bohlen … Joel Payne … Chieko Noguchi of the U.S. Conference of Catholic Bishops … Drew Florio … former Commerce Secretary Penny Pritzker … former Rep. Robert Turner (R-N.Y.) … Katie (Thompson) Sansone … Matt Murray … Julianna Goldman

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