WASHINGTON (CN) — Just hours before the Senate Judiciary Committee was scheduled to vote on a set of highly contentious subpoenas for influential conservative figures at the center of the panel’s Supreme Court ethics investigation, Democrats are walking back one of those proposed orders.
The upper chamber’s legal affairs committee has for months been investigating financial connections between several high court justices and a cadre of benefactors, including billionaire real-estate developers Harlan Crow and Robin Arkley as well as conservative legal activist Leonard Leo.
Democrats had demanded that the three men turn over information about gifts and other hospitality they have provided to jurists, but their requests were met with resistance. Lawmakers escalated things last month, announcing that they would seek to subpoena Crow, Arkley and Leo to force them into compliance.
On Wednesday, however, Senate Judiciary Committee Chair Dick Durbin said the panel would no longer seek to compel Arkley, who he said “provided the Committee with information that he had been withholding.”
Arkley was implicated over the summer in reports that he had footed the bill for a 2008 luxury fishing trip with Supreme Court Justice Samuel Alito. The jurist failed to report the vacation on required financial disclosure forms, and Arkley would later have business before the court.
Durbin credited the billionaire’s change of heart to the proposed subpoena.
“Only now, under threat of subpoena, has Mr. Arkley provided information responsive to the Committee’s requests,” the Illinois Democrat wrote. “Given his cooperation, I’ve decided that voting to authorize a subpoena to Mr. Arkley is not necessary at this time.”
A spokesperson for the committee told Courthouse News Wednesday that lawmakers would still vote as scheduled Thursday on subpoena authorizations for Crow and Leo.
The drastic move — which would force both men to turn over the requested financial information — has incensed the Judiciary Committee’s Republican contingent. South Carolina Senator Lindsey Graham, the panel’s ranking member, suggested last week that Republicans would derail what little bipartisanship the committee currently enjoys if Democrats follow through on their subpoena threats.
Graham scolded his colleagues during a Nov. 2 committee hearing, accusing Durbin and Democrats of “trying to create a political issue” and running afoul of constitutional separation of powers doctrine.
“From here on out, this committee is going to operate differently,” he raged. “This is a fight you want — and you’re going to get it.”
Both Republicans and the subjects of Democrats’ proposed subpoenas have argued that Congress does not have the authority to regulate the Supreme Court or compel private citizens to turn over financial records.
Lawmakers have also contended that the committee no longer has a legislative reason to demand such information. The Judiciary Committee over the summer approved a bill that would force the high court to adopt a formal code of ethics.
Durbin, however, has portrayed subpoenas as a last resort. “The Senate and the American people deserve to know the full extend of how billionaires and activists with interest before the Court use their immense wealth to buy private access to the justices,” he wrote Wednesday.
Democrats have also argued that Congress has already passed legislation that regulates the Supreme Court, and that organizations such as the U.S. Judicial Conference, which sets recusal and disclosure rules for federal judges, were created by Congress.
Arkley isn’t the first target of Democrats’ scrutiny to strike a deal with lawmakers. Crow, implicated in ethically questionable conduct with Supreme Court Justice Clarence Thomas, offered to provide the committee with five years of financial records, a compromise which Durbin rejected.
Crow’s office said in a statement Oct. 31 that it was “disappointing that one party on the Committee would choose to pursue an unnecessary, partisan and politically motivated subpoena instead of simply reciprocating Mr. Crow’s good faith efforts at a reasonable compromise that respects both sides.”
A spokesperson for Crow declined to comment Wednesday on Arkley’s deal, referring back to the real-estate mogul’s earlier remarks.
Leo, meanwhile, has flatly refused to comply with Senate Democrats’ probe, arguing through his lawyer that the investigation violates the Constitution and lacks legislative merit.
Ethically questionable conduct at the Supreme Court was brought back into the spotlight this spring, when investigative journalism outfit ProPublica reported that Crow had taken Justice Thomas on luxury vacations and had given the jurist several high-value gifts that went unreported.
Since then, a steady stream of reports has implicated other jurists — including Justice Alito and Justice Sonia Sotomayor — in conduct that spurred lawmakers to demand that the high court adopt a formal code of ethics.
Decrying a lackluster response from the Supreme Court, the Senate Judiciary Committee in July advanced a bill from Rhode Island Democrat Sheldon Whitehouse that, if made law, would force the high court to adopt an ethics code in the public eye. The measure would also stand up a judicial ethics review board that would allow anyone to make allegations of ethical misconduct against Supreme Court justices.
Republicans have blasted the legislation as retribution for a string of recent decisions from the conservative-dominated high court, and have accused Democrats of a undertaking a political effort to discredit sitting justices.
While Whitehouse’s bill languishes on the Senate floor, House Democrats are pushing to include Supreme Court ethics language in a government budget bill under consideration in the lower chamber Wednesday. Several lawmakers, including California Representative Mike Levin and Georgia Representative Hank Johnson, have offered amendments to the legislation that would withhold millions in funding for the high court until it adopts a code of ethics.
“Currently all federal judges must abide by a code of ethics, except Supreme Court justices,” Levin said on the House floor Wednesday morning. “That must change.”
None of the Democrats’ proposed amendments are expected to clear the Republican-controlled House, said Gabe Roth, director of the reform-minded Supreme Court interest group Fix the Court.
Despite that, he said Wednesday that the ethics push “mark[s] a new and hopefully enduring front in the fight for greater third branch accountability.”
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