Senate Democrats are facing a fresh round of pressure from the left to begin taking concrete moves to spotlight the ethical controversies mounting at the Supreme Court.
They are responding with at least one step: Plans to seek unanimous consent for debate on their long-stalled legislation imposing new ethics rules on the high court.
But Senate Judiciary Chair Dick Durbin (D-Ill.), who’s previously ruled out subpoenaing Justices Samuel Alito and Clarence Thomas, is already acknowledging that Republicans are prepared to object to that debate — leaving no path forward for the Supreme Court bill.
“I think I know the outcome, but we’re going to go through the exercise to make sure that both parties are on the record,” the Judiciary Chair and Majority Whip said on Tuesday.
Durbin revealed his move as several House progressives, and one leading liberal activist group, began nudging harder for the Senate to force recusals by the two conservative justices. Such moves would tee up a remarkable showdown between two branches of government, but liberals across the Capitol are starting to press harder.
“Desperate times call for desperate measures,” said Rep. Jamie Raskin (Md.), the Democrats’ top Oversight and Accountability Committee member, in a brief interview. “I feel like the Department of Justice has within its arsenal the right to ask to petition the court for a writ of mandamus, to force recusal of two justices whose impartiality is reasonably questioned.”
Raskin and Rep. Alexandria Ocasio-Cortez (D-N.Y.) hosted a Tuesday roundtable with Sen. Sheldon Whitehouse (D-R.I.) — a chief backer of the Supreme Court ethics bill — designed to spotlight what many progressives view as a conflict of interest crisis on the court.
Whitehouse used the moment to cool House Democrats’ interest in subpoenas given divided government, warning that Republican senators would be likely to get in the way of enforcing any summons to a justice.
Durbin, who declined to endorse Raskin’s proposal, described it as “kind of a reach” but said he would keep discussing it with him out of “respect” for the constitutional law professor’s expertise. He added a subtle hope that further reporting on the high court might change the political dynamics that have prevented Senate Democrats from moving forward with their 51-vote majority.
“Maybe some new evidence comes out,” Durbin said.
Previous reports in The New York Times and ProPublica have already trained harsh scrutiny on Alito and Thomas. Alito declined to recuse himself from cases related to the Jan. 6 Capitol riot after reports on an upside-down American flag displayed at a family residence, as well as another flag that some associate with Christian Nationalism.
In addition, reports on Alito and Thomas’ ties to wealthy GOP donors have sparked fury on the left. This week, attention returned to the high court after the release of tapes of Alito and his wife, who were recorded by a liberal activist and documentary filmmaker posing as a conservative in order to prod them into addressing sensitive topics.
Senate Democrats’ high court ethics bill would establish more stringent rules for gift and travel disclosure, clarify recusal rules and allow lower court judges to review ethics complaints submitted by the public. Majority Leader Chuck Schumer has not committed to floor time to the measure, likely because it could not overcome a GOP filibuster, so Durbin’s plans to seek unanimous consent are largely symbolic.
With pivotal cases related to former President Donald Trump and Jan. 6 potentially going before the Supreme Court soon, at least one prominent progressive activist said Senate Democrats need to do more — including subpoenas.
“There’s a dangerous strain of defeatism,” Ezra Levin, co-founder of Indivisible, said in an interview. “We are baffled. This is both good policy, good government and good politics. Why not do it?”
“The minute that Durbin gets off his butt … the people will be with him. The general public does not like what’s going on the Supreme Court,” added Levin.
Instead, Democrats are placing the onus elsewhere — focusing on the doomed Supreme Court ethics bill and insisting that Chief Justice John Roberts also hold Alito and Thomas accountable.
“Chief Justice Roberts must intervene for the sake of the court, because nothing is going to happen in Congress” ahead of major new decisions on Jan. 6 and other cases, Rep. Dan Goldman (D-N.Y.) said in an interview late last month. “And if he does rule on these cases, it will cause irreparable damage to an already damaged Supreme Court.”
Yet Roberts declined Durbin and Whitehouse’s request for a meeting on the matter. And even Whitehouse, known among his colleagues for pugnacious pursuit of judicial reform, has not sounded particularly enthusiastic in recent days about Senate Democrats making further headway in forcing the court to address its own internal ethical processes.
“I hope and pray that the time will come when the House is issuing subpoenas that are not subject to the Senate filibuster,” Whitehouse said on Tuesday.
