Chaos Reigns as Democrats Vote to Subpoena Crow, Leo in SCOTUS Probe

November 30, 2023 by Dan McCue
Chaos Reigns as Democrats Vote to Subpoena Crow, Leo in SCOTUS Probe
Senate Judiciary Oversight Committee Chair Sen. Dick Durbin, D-Ill., speaks during a hearing June 13, 2023, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin, File)

WASHINGTON — A Senate Judiciary Committee hearing on Thursday became the latest venue for Capitol Hill dysfunction as Democrats on the panel approved issuing subpoenas to billionaire Harlan Crow and influential conservative Leonard Leo as part of an ongoing investigation into alleged ethical lapses by Supreme Court justices.

The Senate inquiry began after an investigation by the nonprofit news organization ProPublica revealed that Justice Clarence Thomas had for a period of 20 years failed to disclose luxury trips and other perks he received from the real estate magnate Crow.

A subsequent report claimed that Leo, the powerful head of the Federalist Society, organized a free luxury fishing trip for Justice Samuel Alito Jr. and reportedly steered tens of thousands of dollars to Thomas’ wife Ginni for consulting work.

Last Spring, Sen. Dick Durbin, D-Ill., the committee’s chair, said he intended to call for an “enforceable code of conduct” for the justices in the wake of the revelations.

In July, a divided Judiciary Committee advanced legislation to the full Senate without a single Republican vote that would require the Supreme Court to adopt a code of conduct. 

The bill, dubbed the Supreme Court Ethics, Recusal and Transparency Act, would also substantially increase disclosure requirements for when justices have ties to anyone going before the court and require justices to explain any recusals.

The full Senate has not yet voted on the bill.

As previously reported by The Well News, the Supreme Court earlier this month did indeed adopt a new code of conduct for justices, but it didn’t go far enough for critics because it lacked any kind of enforcement mechanism.

In a statement accompanying the new code, the justices said their intent was to “set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the members of the court.”

“For the most part these rules and principles are not new,” the justices said. “The court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct and historic practice.”

On Thursday, Durbin said the subpoenas were necessary because Crow and Leo refused to cooperate with the committee’s requests for information about any and all gifts given to Supreme Court  justices.

In a statement provided to The Well News by the Federalist Society, Leo said, “Senate Judiciary Committee Democrats have been destroying the Supreme Court; now they are destroying the Senate.  

“I will not cooperate with this unlawful campaign of political retribution,” he added.

For his part, Crow has agreed to provide the committee with some information, but his offer only covers the last five years. 

His office said in a statement on Thursday that the committee’s requests were “intrusive demands of a private citizen that far exceed any reasonable standard.”

“The Judiciary Committee Democrats’ violation of the committee’s own rules to issue an invalid subpoena further demonstrates the unlawful and partisan nature of this investigation,” the statement continued. “Despite the unenforceability of the subpoena, Mr. Crow remains willing to engage with the committee in good faith, just as he has consistently done throughout this process.”

Democrats on the committee had also planned to subpoena a third individual, Robin Arkley II, who reportedly funded Alito’s luxury fishing trip, but dropped that plan after Durbin indicated he’d satisfied the committee’s requests for information.

While Republican opposition to the subpoenas was expected to be fierce, it’s likely no one anticipated the utter chaos that reigned before the committee got on to that business.

The first order of that business was to have been some simple housekeeping — a pair of roll-call votes on two judicial nominees who needed to be reconsidered because of a procedural mistake earlier this month.

The nominees were U.S. Magistrate Judge Mustafa Taher Kasubhai, whom President Joe Biden picked for a district court judgeship in Oregon, and California Superior Court Judge Eumi Lee, whom he picked for a seat on the U.S. District Court for the Northern District of California.

According to the Senate parliamentarian, the committee needed to re-vote on the two judicial nominees because two of the Democratic “aye” votes were cast by proxy. 

Durbin started Thursday’s committee hearing by saying he wouldn’t allow debate on the two nominees because the panel had already engaged in one, and the vote was simply a formality.

But Republicans objected, accusing Durbin of violating committee rules by shutting down debate on the nominations. 

Durbin pushed back by pointing out previous Republican chairs had set the precedent to handle the re-vote as he planned, but tensions only mounted.

During the actual roll-call votes on the nominee, Republicans repeatedly ignored the committee clerk and continued to lambast Durbin for muzzling them.

“Mr. Chairman, you just destroyed one of the most important committees in the United States Senate,” Sen. John Cornyn, R-Texas, said at one point. “Mr. Chairman, I hope you’re proud of yourself.”

Later, Sen. Tom Cotton, R-Ark., warned Durbin that Democrats were in for some heavy-duty retribution if Republicans regain control of the chamber next year.

“You’re going to have a lot of consequences if you go down this road,” Cotton said, clearly seething.

Sen. Lindsey Graham, R-S.C., the ranking Republican on the committee, is usually a cooler head when it comes to working across the aisle, but on Thursday, it appeared he reached his limit, accusing Durbin of “driving [the body] off into a ditch.” 

Graham also charged that Democrats were on a “jihad against the Roberts court.”

“This is going to fundamentally change the way the committee operates. This is garbage,” Graham said, adding, “I don’t know what drives this, Dick, I really don’t.” 

The GOP members also tried to file a number of amendments to the motion to issue the subpoenas — more than 170 in all — most of them having nothing whatsoever to do with the subpoena or the high court at all.

Though Durbin procedurally blocked a vote on any of the amendments, the Republican effort did nearly push the hearing beyond the Senate’s two-hour rule for committees.

As a result, Durbin was forced to fast-track the subpoena vote, but the Republicans on the panel said the vote was being undertaken a minute after the two-hour limit on hearings and promptly left the room as the clerk called the roll to deny Democrats a quorum.

“This is a complete disgrace,” Cornyn said as he left the room.

Later, Graham called the subpoenas a “political vendetta” that would ultimately destroy the committee.

“What drives all this is how we feel about this never-ending effort to delegitimize this court,” he said. “This is really dangerous.”

Dan can be reached at [email protected] and @DanMcCue

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