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Senate Judiciary Committee stalls amid partisan firestorm over Supreme Court subpoenas, court nominees

The upper chamber’s legal panel was unable to vote on any scheduled business as Republicans raged against a district court appointee and accused Democrats of playing politics with their Supreme Court ethics inquiry.

WASHINGTON (CN) — It was a grim scene in the Senate Judiciary Committee Thursday morning, as Republican anger over Democrats’ push to subpoena figures central to their Supreme Court ethics inquiry threatened to melt away the panel’s thin veneer of bipartisanship.

The upper chamber’s legal affairs committee, tasked with approving the Biden administration’s nominees for federal court vacancies, has for months enjoyed some rare goodwill between Democrats and Republicans. That bipartisan tenor so far has helped the panel advance dozens of White House appointees with cross-aisle support.

Those good feelings have been stretched to their breaking point this week; Judiciary Committee Chair Dick Durbin announced he would seek authorization to subpoena a trio of prominent conservative figures who Democrats say have had unethical relationships with justices of the Supreme Court.

The committee has for months been investigating reports that some of the high court’s jurists failed to disclose high-dollar gifts from wealthy benefactors, including billionaire megadonors Harlan Crow and Robin Arkley, as well as conservative legal activist and Federalist Society founder Leonard Leo.

Democrats’ demands that Crow, Arkley and Leo turn over information about their relationships with Supreme Court justices have been met with resistance. Durbin has framed his proposed subpoenas — legal summons that would force the three men to comply — as a last resort.

But for Republicans, subpoenas are a bridge too far.

“You have lost your way,” seethed South Carolina Senator Lindsey Graham during a Judiciary Committee business meeting Thursday morning.

Graham, the panel’s ranking member, rehashed an argument now familiar among opponents of Democrats’ Supreme Court ethics inquiry: that any attempt to regulate business of the court would violate constitutional separation of powers.

“You’re trying to manage the Supreme Court,” the senator said. “I wouldn’t let y’all manage anything. You’re trying to create a political issue that I think crosses constitutional boundaries.”

Iowa Republican Chuck Grassley piled on, saying Democrats’ probe is “part of a campaign by the left to harass and intimidate the Supreme Court because they don’t like some of its recent decisions.”

“Unfortunately, this request for subpoena authorization is just more of the same,” he added.

The Judiciary Committee was scheduled to vote Thursday on authorizing subpoenas for Crow, Arkley and Leo, but Durbin said the panel would delay such action until next week, citing a request from committee Republicans.

Visibly incensed, Graham made it clear that the minority would not go down without a fight. “You better eat breakfast next Thursday,” he told the committee, “because you’re not going anywhere.”

The lawmaker also appeared to put the GOP’s future cooperation with committee leadership on the table.

“From here on out, this committee is going to operate differently,” Graham said. “Starting next Thursday, it is going to be harder, not easier. This is a fight you want — and you’re going to get it.”

Arkansas Senator Tom Cotton threatened Democrats with a political retaliation strike. “The shoe will be on the other foot one day,” he said. “Go ahead, issue a subpoena. We’ll see what happens when we take back the majority.”

Republicans also suggested that Democrats would eventually try to subpoena Justice Clarence Thomas, who was implicated in ethically questionable conduct, and force the jurist to testify before Congress.

Durbin for his part refused to address the possibility, but did not explicitly rule it out.

“Our endgame is to follow the facts,” he said. “We cannot accumulate the facts without the cooperation of the witnesses. We’ve done everything we can to try to get voluntary cooperation.”

Durbin pushed back on claims that Democrats were taking such a drastic step for political purposes.


“The Judiciary Committee is only pursuing compulsory process with respect to individuals who are refusing to comply with a legitimate oversight inquiry when the committee has exhausted its other options,” the Illinois senator said.

He added that his support for ethics reform at the Supreme Court isn’t a recent development — the lawmaker back in 2012 urged Chief Justice John Roberts to adopt a formal code of ethical standards at the high court.

Getting information out of Crow, Arkley and Leo is “critical to understanding how individuals and groups with business before the court gained private access to the justices,” Durbin said. “This committee is lawfully entitled to the information we requested.”

Rhode Island Senator Sheldon White House rejected the GOP argument that Congress has no authority to investigate ethics issues at the Supreme Court, saying that lawmakers have passed legislation dictating recusal and disclosure laws for federal judges which have been implemented by the U.S. Judicial Conference — itself a creation of Congress.

“Saying Congress can’t investigate here is saying that Congress can’t investigate how laws Congress passed are being implemented by an agency Congress created,” Whitehouse said. “That is obvious nonsense.”

Lawmakers were alerted to ethically questionable conduct at the Supreme Court this spring, after reports emerged that Crow, a billionaire real estate mogul, had taken Justice Thomas on luxury vacations and given him several high-value gifts that went unreported. In June, news broke that Justice Samuel Alito had failed to report a 2008 fishing trip with billionaire Arkley, organized by Leo. Arkley would later have business before the Supreme Court.

Amid these and other revelations, the Judiciary Committee narrowly passed legislation over the summer that would force the high court to adopt a formal code of ethical standards in public view. The measure, sponsored by Whitehouse, would also establish a judicial review panel that would investigate allegations of ethical misconduct against justices.

The bill has yet to get a vote on the Senate floor.

Meanwhile, the Judiciary Committee struggled Thursday to complete any of its scheduled business, eventually adjourning without taking any votes after some members left for the Senate chamber.

Some of that gridlock was thanks to vehement Republican opposition to a pair of district court nominees set for votes, including Mustafa Kasubhai, tapped by the Biden administration to fill a vacancy on the District of Oregon.

Kasubhai, currently a magistrate judge in the same court, faced sharp questioning from GOP lawmakers during a confirmation hearing in October. Republicans on Thursday offered an even stronger rebuke to the nominee, painting him as a left-wing activist and blasting Democrats for bringing his appointment up for a vote.

Graham called Kasubhai’s nomination and the appointment of Eumi Lee to the Northern District of California “way out of bounds.”

“These people are really committed to their causes,” the South Carolina Republican said. “It’s okay to disagree with each other, but I don’t believe they could resist the temptation to be a district court judge and advance their causes.”

Texas Senator Ted Cruz maligned Kasubhai as “a radical leftist, if not an outright Marxist.” The lawmaker cited an essay written by the nominee — as a law student in the 1990s — which he called “a love letter to Marxism.”

“This judge is a radical, he’s extreme,” Cruz complained. “If he’s confirmed, we can count on him to let violent criminals out of jail. Senate Democrats continue to rubber stamp whatever radical this White House sends them.”

Durbin, in response to these charges, read a statement from Kasubhai addressing his past comments.

“I’m not and never have been a Marxist, and I have never espoused or have subscribed to Marxist theories,” Kasubhai wrote in the statement read by Durbin. “Rather, I’ve been an active participant in and beneficiary of the American capitalist system.”

Durbin said some of the GOP’s accusations against Kasubhai were “wildly unsubstantiated.”

Indeed, some Republican lawmakers appear to have taken the nominees statements and beliefs out of context.

During Kasubhai’s Oct. 4 confirmation hearing, committee members dialed in on comments he made in a February 2021 article published by the Oregon State Bar Bulletin. In the piece, the magistrate judge argued that lawyers must “set aside conventional ideas of proof” when dealing with interpersonal discussions about diversity and inclusion.

While some Republicans sought to frame those words as a statement about Kasubhai’s view of due process, the jurist explained that he was criticizing how lawyers approach everyday conversations with friends and peers.

“Oftentimes, lawyers can be accused of always trying a case, no matter who they might be talking to,” Kasubhai told lawmakers. “What I was referring to was the idea of sitting down and talking with a friend from a different background.”

Carl Tobias, chair of the University of Richmond School of Law, said that disputes over Kasubhai and the proposed subpoena vote could “threaten what appears to be growing bipartisan consensus regarding judicial nominees.”

Despite the partisanship on display, however, Tobias said he was “cautiously optimistic” that Durbin and Graham would continue working together to advance judicial nominees on a bipartisan basis.

“[T]hey will hopefully just agree to disagree about the subpoenas,” he added, “but we shall see as soon as next week.”

Follow @BenjaminSWeiss
Categories / Courts, Government, National, Politics

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