WASHINGTON ― Progressive groups and legal experts have increasingly demanded that Senate Democrats do more to hold Supreme Court Justice Samuel Alito accountable after reports of multiple controversies and apparent ethical breaches, which include revelations that flags flown at two of his residences were like ones insurrectionists carried as they attacked the U.S. Capitol on Jan. 6, 2021.
Some have urged Sen. Dick Durbin (D-Ill.), who chairs the Senate Judiciary Committee, to use more hardball tactics, like subpoenaing Alito to testify. More than two dozen organizations recently pressed Durbin to launch an investigation specifically into Alito’s compliance with federal law and ethical standards.
But Durbin said Wednesday that the committee won’t be doing those things.
“Quite honestly, subpoenaing a Supreme Court justice is not in the cards,” he told HuffPost. “It’s not going to happen.”
The Illinois Democrat said he wished that the progressives demanding this “would consider the actual rules of the Senate and the Senate Judiciary Committee.”
The math simply isn’t there to go this route, he said. In the committee, it would take either a bipartisan vote or a majority vote to subpoena Alito. The votes definitely aren’t there for a bipartisan vote, and it’s questionable if they’re there for a majority, he said. Beyond that, even if enough committee members agreed to subpoena Alito, it would take 60 votes in the full Senate to approve it. The votes aren’t there for that either, he said.
Durbin said there wasn’t much senators could do to enforce a subpoena against a Supreme Court justice anyway.
“If they tear it up in front of me, there’s little I can do other than say, ‘You’re missing an opportunity if you have a story to tell,’” the judiciary committee chair said. “That’s the best we can do.”
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As for launching a new investigation into Alito, Durbin dismissed the idea that the committee isn’t already looking into justices’ ethics, given the bombshell reporting that’s come out about their activities in the last year or so.
Journalists found that Justice Clarence Thomas has been treated to luxury vacations virtually every year for the last 20 years by conservative GOP mega-donor Harlan Crow without disclosing or reporting them. Alito took a luxury fishing vacation with a GOP billionaire who later had cases before the court. Justice Neil Gorsuch did not report that the head of a law firm, with cases before the court, bought a 40-acre tract of his property.
The committee responded to these stories by inviting Chief Justice John Roberts to testify about the court’s ethics issues (Roberts refused), requesting information from Roberts about how the court is enforcing its toothless code of conduct, and separately requesting that Alito and Thomas recuse themselves from cases in which there were questions about their impartiality. (Alito refused. Thomas never responded and chose not to recuse himself.)
“We issued subpoenas to some of the sugar daddies, and we received some information, which we’re processing now,” Durbin said, referring to the panel previously serving subpoenas to Crow and conservative judicial activist Leonard Leo, both of whom have close ties to Supreme Court justices.
Asked specifically about progressive groups urging an even closer examination into Alito, Durbin said only, “I don’t know what they’re talking about.”
But progressives agitating for more action by Durbin were pleased by some developments this week. The Judiciary Committee released new information on Thursday, exclusively obtained through its subpoena of Crow, detailing three more private jet trips that Thomas failed to disclose.
“The report that Sen. Durbin and his committee released yesterday, which shone further light on Justice Thomas’s own seemingly never-ending ethical lapses, is exactly the type of work that is so critical to setting the stage for ensuring long-term improvements in the functioning of the judiciary,” said Maggie Jo Buchanan, managing director of Demand Justice, a progressive judicial advocacy group.
“Moving forward, sustained efforts — particularly in regard to investigations and findings into the Chief Justice’s handling of such revelations and the institution he is responsible for protecting the integrity of — will be similarly important to the future of our democracy,” she said.
On Wednesday evening, Democrats also tried to bring up a bill on the Senate floor ― the Supreme Court Ethics, Recusal, and Transparency Act ― that would require the nine justices to adopt a binding code of conduct. Republicans blocked it from getting a vote.
This was an entirely expected result. Republicans don’t support this bill because they don’t think it’s appropriate for the legislative branch to tell the judicial branch how to operate. Democrats brought the bill up to send a message, though: that they tried to do something, anything, to rein in the Supreme Court justices’ conduct, and the GOP shot it down.
Durbin has repeatedly said his preferred solution to addressing ethical problems with Supreme Court justices is passing this bill. But if it doesn’t have any GOP support, what’s the point of continuing to try to pass it?
“The math may not be there to do it, but the Republicans are going to be in a position of trying to explain or forgive this conduct,” he said. “I don’t think that’s easy.”
It’s not clear what Senate Democrats will do now, beyond trying to hold another floor vote on their otherwise doomed Supreme Court ethics bill. It is a presidential election year, after all, and Congress will increasingly be holding votes on bills purely for messaging purposes.
Senate Majority Leader Chuck Schumer (D-N.Y.) signaled Wednesday that Democrats aren’t done trying to hold Supreme Court justices accountable.
“I’ll continue to discuss with Sen. Durbin the best way to go forward,” he told reporters.
