With holidays in sight, Senate Judiciary sidesteps subpoenas but leaves room for progress

WASHINGTON (CN) — With the embers of the Senate Judiciary Committee’s Supreme Court ethics probe still smoldering, lawmakers fled Washington this week for a much-needed Thanksgiving recess — but whether the upper chamber’s legal panel will continue fanning the flames remains to be seen.

Democrats on the Judiciary Committee, led by Senate Majority Whip Dick Durbin, have had the high court under their microscope for months, following reports in the spring that Supreme Court Justice Clarence Thomas had failed to report luxury vacations and other gifts from conservative billionaire Harlan Crow.

That inquiry reached a crescendo this month, as Durbin announced that his committee would seek to authorize subpoenas for Crow and conservative legal advocate Leonard Leo, who was implicated in similar conduct involving Justice Samuel Alito.

Despite Democrats’ insistence that such legal action was necessary — both Crow and Leo have refused to cooperate voluntarily with the probe — lawmakers called off a vote planned for last week with little fanfare. The move came after Durbin abruptly adjourned a committee hearing the week before without voting on the proposed subpoenas.

There’s no question that the plan to issue legal summonses to a pair of prominent conservative figures does not sit well with the committee’s Republican contingent. The panel’s ranking member, South Carolina Senator Lindsey Graham, has threatened to torpedo the committee’s already flimsy air of bipartisanship.

Graham promised at a recent committee hearing that it would be a “shitshow” if Democrats followed through on their subpoenas for Crow and Arkley. Sure enough, Republicans have offered more than 80 amendments to the proposed action, which the panel would need to work through before it could vote on either subpoena.

Democrats’ effort was further complicated last week after the Supreme Court unveiled its own code of ethical conduct. The high court, which until now has not had a formal ethics framework, drew criticism from some experts for not implementing a solid enforcement mechanism for its new standards.

Committee leadership has provided little explanation for repeatedly delaying the planned subpoena vote, but some Democrats such as Rhode Island Senator Sheldon Whitehouse have suggested that the scores of GOP amendments are the culprit. A spokesperson for the committee, meanwhile, said that the most recent cancellation was thanks to late-night budget negotiations in the Senate last week.

Some Republicans, including Louisiana Senator John Kennedy and Missouri Senator Josh Hawley, have speculated that their Democrat colleagues lack the necessary votes on the Senate floor to approve the proposed subpoenas, even if they clear the Judiciary Committee.

Regardless of the reason, Democrats’ decision to stall on subpoenas for Crow and Leo has left a feeling of malaise among some experts.

“I’m going to be honest, I’m disappointed that it hasn’t happened,” said Gabe Roth, director of reform-minded Supreme Court advocacy group Fix the Court. “I thought we had a majority of members on the committee who wanted to move forward, and now it appears that may not be the case.”

Roth said he was worried that committee Democrats were splintering on the proposed subpoenas.

“There might be excuses about amendments or scheduling or what have you,” he said, “but I’m definitely concerned that the caucus isn’t sticking together.”

Durbin, for his part, has said that his colleagues are still committed to their Supreme Court probe, proclaiming in a Nov. 9 statement that “Senate Judiciary Democrats remain united in our effort to implement an enforceable code of conduct for Supreme Court justices.”

If Democrats indeed pulled away from their subpoena threat, it would be a bad look, Roth observed.

“I think it would be more embarrassing for them to not issue the subpoenas at this point,” he said. “If you can’t follow through on your promises, then why even have the majority?”

Even with the Supreme Court’s announcement that it would implement its own ethics code, Democrats still have the political grounds to compel Crow and Leo, said Carl Tobias, chair of the University of Richmond School of Law.

“I think they have a legitimate argument that there’s a problem there,” Tobias said of ethical lapses at the high court. “It isn’t going to be remedied by what the Supreme Court did, even if it were a step in the right direction.”

Roth agreed, adding that Democrats were exercising basic congressional oversight, as well as using their probe as a fact-finding mission, forming the basis of laws that would rein in ethical offenses on the high court.

“To me, there’s still a clear legislative purpose here,” he said.

As for whether the Judiciary Committee would take up the proposed subpoenas after Thanksgiving recess, Roth signaled that he was still mildly optimistic.

“There’s always going to be an excuse, there’s always going to be a crisis,” he said. “But, whenever you have the chairman of the committee saying that it’s his priority to do something — and given the skill of someone like Majority Whip Durbin to get his caucus in line, I’m fairly confident that it will happen.”

Tobias concurred that Durbin’s personal commitment could push him to move ahead with the proposed subpoena vote but worried about the effects such an action could have on bipartisanship on the Judiciary Committee. In particular, he pointed to the panel’s efforts to confirm federal court nominees, noting that Graham has on several occasions worked with Democrats and the White House to find consensus candidates.

“It’s a tough price to pay if you’re going to lose Graham,” Tobias said, “because he’s been helpful to Biden.”

Durbin has been a proponent of ethics reform at the Supreme Court for more than a decade. The Illinois Democrat in 2012 penned a letter to Chief Justice John Roberts calling on the high court to adopt an enforceable code of ethical conduct. Roberts demurred at the time — the court in a year-end report noted that it could not be held to the same standards of ethical disclosure as lower federal courts.

Despite the uncertainty surrounding Democrats’ proposed subpoenas, things aren’t all bad on the Judiciary Committee. The panel has made progress in recent months filling federal court vacancies, including some on a bipartisan basis.

“I’m encouraged by the quality of the nominees, and by some cooperation from red state senators, especially recently,” Tobias said. He pointed to collaboration between the White House and Republican senators from Florida and Indiana to name jurists for vacancies in both states and said ongoing discussions between Democrats and Texas Republicans look promising.

There are still some challenges facing the committee’s nominations work. The White House is still spinning its wheels on finding nominees for three court vacancies in Missouri, something Tobias said could be helped along by Hawley, who sits on the Judiciary Committee.

“He doesn’t have any excuses,” Tobias said. “He’s the home state senator and he needs to work with the White House in any way that he possibly can.”

If things continue apace, however, President Biden could be on track to surpass the number of federal judges confirmed by former President Trump in his third year in office, Tobias forecast.

That milestone is contingent on the Judiciary Committee’s posture as lawmakers return from Thanksgiving recess and the upcoming Christmas holiday — as well as any intervening challenges, such as looming budget talks.

“I’m pretty positive right now,” Tobias said. “But you don’t want to slow down. I think they need to speed up.”

Follow @BenjaminSWeiss

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With holidays in sight, Senate Judiciary sidesteps subpoenas but leaves room for progress

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