WASHINGTON (CN) — Senate Republicans suggested this week that Democrats could still face political consequences for their move to subpoena an influential conservative figure at the center of their Supreme Court ethics inquiry — but their retribution, if any, has yet to materialize.
Democrats last week issued a legal summons to Leonard Leo, legal advocate and co-chair of the conservative Federalist Society, demanding that he turn over the details of his financial relationships with Supreme Court justices.
The move marked a significant escalation in lawmakers’ year-long probe of the high court, which began last year amid reports that Justice Clarence Thomas had failed to report gifts and luxury vacations paid for by wealthy benefactors.
It was a subpoena months in the making. Led by Senate Majority Whip Dick Durbin, the Senate Judiciary Committee in November authorized the move against Leo and Harlan Crow, a real estate magnate and conservative megadonor with ties to Thomas.
Republicans walked out of that meeting in protest, but not before promising to rain fire and brimstone on the upper chamber’s legal affairs committee if Democrats went through with approving the subpoenas. South Carolina Senator Lindsey Graham, the Judiciary Committee’s GOP ranking member, was a particularly vocal opponent, fuming that Democrats had opened “Pandora’s Box” with their ethics probe.
“This is going to fundamentally change the way the committee operates,” he said at the November meeting.
Experts suggested at the time that Republicans could exact their revenge in the Judiciary Committee by, among other things, backing away from bipartisan efforts to confirm the Biden administration’s judicial nominees.
The GOP has yet to unleash the “shitshow” Graham promised last fall, but the South Carolina Republican signaled this week that a response to the subpoena was not off the table.
“I think it’s politically motivated legal garbage,” Graham told Courthouse News Thursday morning. “It’s not going to go anywhere.”
Asked whether Democrats’ Supreme Court ethics probe could move Republicans to abandon bipartisanship on judicial nominees, Graham responded, “Yeah, it can.”
Iowa Senator Chuck Grassley, one of the Judiciary Committee’s most senior Republicans, complained that Democrats hadn’t allowed for an amendment process on the proposed subpoenas before they were authorized.
GOP lawmakers offered nearly 180 amendments to last year’s subpoena authorizations on a variety of subjects — including one from Tennessee Senator Marsha Blackburn that would have added a subpoena for Jeffrey Epstein’s flight logs.
“If they’re not willing to do it in a bipartisan way,” Grassley said of the subpoenas, “then the committee’s not functioning like it should.”
Missouri Senator Josh Hawley left the ball in Graham’s court when it came to the tactics of opposing Democrats’ subpoena in committee but appeared to be open to Republicans standing in the way of White House court nominees.
“I’m voting no on all those nominees anyway,” he said. “I’d be in favor of a tougher line.”
The senator also suggested that Democrats had opened the floodgates for a series of Republican counter-subpoenas under a GOP Senate majority.
“I don’t want to hear any fussing or whining from them when we’re in the majority — and we’re going to be — when we want to subpoena all the people who are involved with their dark money network,” Hawley said. “We’ve crossed that bridge.”
Despite Republicans’ anger over the subpoena, there might not be much they can do to hamper Judiciary Committee business while they are still in the minority, said Carl Tobias, chair of the University of Richmond School of Law.
Graham doesn’t have the same political leverage that he had last year, Tobias contended. The Judiciary Committee ranking member was for a time the deciding vote on judicial nominees in the absence of the late Democratic Senator Dianne Feinstein.
“Last year, he could be the kingmaker,” Tobias said. “This year, he can’t.”
Under the current party breakdown on the committee, he explained, it would take Democratic defections to sink a White House judicial appointee — pointing as an example to Democrats who have backed away from Third Circuit nominee Adeel Mangi.
Durbin, meanwhile, was dismissive of the Republican allusions to political retribution.
“I know that Leonard Leo is a holy figure in the Republican party,” he told Courthouse News Thursday. “All we’ve asked him to do is report the facts … everyone else we’ve asked has cooperated. He has not.”
Leo, for his part, has said for months that he will not comply with any legal demands from Congress. The conservative legal advocate doubled down on his defiance last week, writing in a statement that the subpoena against him was “unlawful and politically motivated” and accused Democrats of an effort to silence political opposition.
A Judiciary Committee aide told Courthouse News last week that Durbin expects Leo to acknowledge the gravity of his situation and fork over the requested information, but left the door open for compulsory action against him — alluding to a possible vote to hold Leo in contempt of Congress.
Durbin declined to say Tuesday whether he was planning to move ahead with such action, which, if approved, could carry fines or jail time.
Democrats have for more than a year railed on ethics lapses at the Supreme Court, demanding that it produce a formal code of ethical conduct for its justices to follow. The Judiciary Committee over the summer advanced legislation from Rhode Island Senator Sheldon Whitehouse that, if made law, would have forced the high court to develop such standards with public input.
The Supreme Court, meanwhile, unveiled its long-awaited ethics code late last year. While Democrats and legal experts hailed it as a positive step, they have also pointed out that it lacks clear enforcement mechanisms.
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