Kennedy Says Democrats' Supreme Court Ethics Bill Is 'Dead as Fried Chicken' (July 20, 2023)

Sen. John Kennedy, R-La., had a prediction for the Democrats pushing a Supreme Court ethics bill through the Senate Judiciary Committee: it was going nowhere. “You got the votes to get it out of here,” he told them. “But this thing’s dead as fried chicken on the Senate floor, and it’s dead as fried chicken in the House.”

The video above shows Kennedy at the committee’s July 20, 2023, markup of the Supreme Court Ethics, Recusal, and Transparency Act, which Democrats sent to the full Senate on an 11-10 party-line vote [1]. No printed transcript of the markup was available, so quotes from the video are HYGO News’ transcription, checked against NPR’s and Roll Call’s accounts of the meeting [1][2].

”Dead as Fried Chicken”

Kennedy didn’t hide what he thought of the bill, or of the Democrats’ odds. “While I’m upset with this bill, I would be more upset if my Democratic colleagues were trying to move it when they have the votes,” he said. “Now, they don’t have the votes. You got the votes to get it out of here. But this thing’s dead as fried chicken on the Senate floor, and it’s dead as fried chicken in the House.”

Then he gave his colleagues across the dais the benefit of the doubt. “And maybe I’m naive, but I believe in my heart of hearts that if you did have the votes and you could pass this bill, which we all know would destroy the United States Supreme Court as an institution, you wouldn’t do it. Maybe I’m naive. It’s still a dangerous bill.”

NPR aired the same remarks that evening, with Kennedy calling the measure “dangerous, but it’s unserious” [2].

”Any Jackaloon Out There in a Tinfoil Hat”

The bill, sponsored by Sen. Sheldon Whitehouse, D-R.I., would have required the court to adopt a code of conduct, set reporting rules for gifts, imposed recusal standards and added transparency rules for groups filing amicus briefs. It would also have set up a panel of lower-court judges to review complaints seeking a justice’s recusal from a case [1]. Justices would have had to explain their recusal decisions to the public [2].

Kennedy zeroed in on that complaint process, warning that it was ripe for abuse by people trying to pick off justices in big cases. “This bill would allow any jackaloon out there in a tinfoil hat whose own dog thinks he’s an utter nutter to file a motion to recuse a Supreme Court justice,” he said, according to Roll Call [1].

Graham: “A Bill to Destroy a Conservative Court”

Sen. Lindsey Graham, R-S.C., the committee’s top Republican, called the bill part of a long-running Democratic effort to “destroy the court as it exists” because it had ruled in ways they did not like.

“It took us 50 years to get a conservative court, we did it the old-fashioned way. We nominated people, we got the votes,” Graham said. “The bottom line is this is a bill not designed to make the court stronger or more ethical, this is a bill to destroy a conservative court” [1].

Whitehouse pointed to reports of travel that Justices Clarence Thomas and Samuel Alito had received from billionaire donors and said the court had been “supremely idle” on ethics [1]. “We are here because the highest court in the land has the lowest standard of ethics anywhere in the federal government,” he said [2].

The Day Before: “Why Beat the Living Crap Out of the Supreme Court?”

Kennedy had previewed the line a day earlier, at a Wednesday afternoon news conference with Sen. Ted Cruz, R-Texas. “This bill is dead as fried chicken,” he said. “It’s going to get out of committee. It doesn’t have 60 votes in the Senate. And it sure can’t pass the House. So why do it? Why beat the living crap out of the United States Supreme Court? I just don’t get it. I understand politics, but I just don’t get it” [3].

Cruz joked at the same event that “anyone who writes what Kennedy says, he’ll buy you fried chicken” [3].

61 Amendments, and One Win for Kennedy

The markup ran about three and a half hours, and Republicans came armed with 61 amendments, NPR reported. Sen. Marsha Blackburn, R-Tenn., wanted to block the law until the person who leaked the draft abortion opinion was identified. Sen. John Cornyn, R-Texas, offered an amendment on federal judges’ right to carry a gun [2].

Kennedy got a win of his own. He proposed an amendment condemning what he said were racist statements made about Justice Clarence Thomas. After a compromise, language was added to condemn racism against any justice [2]. Roll Call reported that the Kennedy amendment was adopted after being altered by two amendments from Chairman Dick Durbin, D-Ill. [1].

Just the News reported: “The tense exchange drew attention to comments that Minnesota Attorney General Keith Ellison, a Democrat, made likening Thomas to a house slave from the film ‘Django Unchained.’” [8]

“How can you not condemn a statement calling Justice Clarence Thomas a house slave? Come on, folks. That’s all this amendment does. I mean does anybody here support that kind of rhetoric?” Kennedy said. “This kind of rhetoric hasn’t been directed toward John Roberts, it hasn’t been directed towards Neil Gorsuch. It’s been directed toward Clarence Thomas,” he insisted [8].

Sen. Ted Cruz, R-Texas, asked whether any other justice had faced such attacks. Kennedy answered: “No, sir. And it would be unconscionable for this committee not to condemn that kind of rhetoric for Clarence Thomas.” [8] For the full fight over the amendment, see HYGO News’ page on the Thomas vote.

By the Numbers

11-10: the committee’s party-line vote to send the bill to the floor [1].
61: amendments Republicans brought to the markup, according to NPR [2].
3 1/2 hours: the length of the markup [2].
60: votes needed to get past a filibuster, which Kennedy said the bill did not have [3].
Calendar No. 199: where the bill landed on the Senate calendar on Sept. 5, 2023, its last recorded action [4].

What Happened Next

The justices wrote their own code. On Nov. 13, 2023, the Supreme Court issued its first formal Code of Conduct. “The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” the justices wrote. “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct” [5].

Democrats tried again, and Kennedy objected. On June 12, 2024, Durbin asked for unanimous consent to pass the bill on the Senate floor. Graham objected [6]. Kennedy and Sen. Mike Lee, R-Utah, joined in. “I do not think this bill is about ethics. This bill is about abortion,” Kennedy said on the floor [7].

Kennedy’s call held up. The bill never got a vote on the Senate floor. Its last recorded action was its placement on the Senate calendar in September 2023, and it died when the 118th Congress ended [4].

Kennedy had pressed the same fight months earlier at the committee’s May 2023 hearing on Supreme Court ethics.