The Democratic-led Senate Judiciary Committee backed down on a planned vote Thursday to subpoena two major conservative players close to Justices Clarence Thomas and Samuel Alito in their probe into ongoing ethics controversies at the Supreme Court.
The subpoenas would target Leonard Leo, the co-chairman of the board of the influential Federalist Society, and Republican donor Harlan Crow, arguing the information was necessary to better understand whether specific individuals and groups have used undisclosed gifts to gain access to the justices.
However, committee Republicans planned to offer scores of amendments that touch on issues including border security, social media use and liberal Justice Sonia Sotomayor as they dig in against Democratic efforts to investigate the conservative justices and donors.
“You’re going to have a complete s**tshow but if that’s what you want, that’s what you’re gonna get,” said GOP Sen. Lindsey Graham of South Carolina during the hearing.
Democratic Chairman Dick Durbin abruptly adjourned the meeting and told CNN the committee may attempt to vote on the subpoenas next week.
Sen. Josh Hawley, a Missouri Republican, for instance, said he plans to propose subpoenas for Arabella Advisors, calling it “the biggest dark money group in the country.”
“I think the Democrats will regret this, ultimately, because when Republicans retake the majority I mean, the precedent is going to be here,” said Hawley.
“I’m not going to participate in a witch hunt against Justice Thomas,” Hawley added.
The effort to authorize subpoenas represents a key point in Senate Democrats’ investigation into the nation’s highest court following a series of stories this year about transparency and ethics that raised questions about whether Thomas and other justices have flouted some rules. Democrats are pushing the justices to adopt a formal code of ethics similar to what lower-court judges are required to follow.
In the last several months four justices – Chief Justice John Roberts and Justices Brett Kavanaugh, Elena Kagan and Amy Coney Barrett – have appeared in public to express some form of support for ethics reform emanating from court itself, although no announcement has been made.
Graham celebrated the decision to cancel the vote.
“I think not going down this road is good,” Graham said after the adjournment. “I mean, they know where we’re at. I mean, none of us agree with what they’re doing about the Supreme Court and these private citizens, and, you know, we would respond in kind and we’d kind of get the committee off in a ditch.”
Durbin, meanwhile, said his party is “still united on issuing the subpoenas,” but the GOP plan to file nearly 90 amendments threw a wrench into the idea of voting Thursday as scheduled.
Asked when a vote will happen, Durbin told CNN, “I hope as soon as possible. I think, as I said, we’re ready to vote on those, Republicans are delaying it with amendments. In fairness, we’ve done the same thing. But you know, I want to make sure that we’re together on major issues that they raised in the amendments.”
In a recent floor speech, Durbin said the committee needs to know if justices are for sale.
“I’m not going to stand idly by as these fawning billionaires with interest before the court use their immense wealth to buy private access to the justices and then deny the Senate Judiciary Committee information to which we’re lawfully entitled,” Durbin said.
Should the subpoenas be authorized, Democrats will still have hurdles ahead. That’s because if Leo and Crow choose not to comply, the Senate would be forced to hold a vote to enforce the subpoenas and that might not win the necessary majority.
Leo, the activist who was instrumental in former President Donald Trump’s effort to add conservative judges to the federal bench, blasted the committee’s probe in a statement last week, saying he “will not bow to the vile and disgusting liberal McCarthyism, that seeks to destroy the Supreme Court simply because it follows the constitution rather than their political agenda.”
Leo’s attorneys also said in a letter sent to the committee last month that the inquiry represented “political retaliation.” Thomas and Alito have denied any wrongdoing.
A lawyer for Crow had been negotiating to supply the committee with some information related to the travel and luxury vacations he gifted to Thomas over the past five years but the offer was ultimately rejected by Democrats who wanted more information spanning their long friendship.
Both Leo and Robin Arkley II were the focus of a ProPublica report earlier this year that said Alito did not disclose a luxury 2008 fishing trip he took on a private jet that was organized in part by Leo. According to the publication, the justice’s stay was provided free of charge by Arkley, another major donor to the conservative legal movement.
The committee had originally said that it planned to Arkley, but on Wednesday said he had already submitted requested materials and a subpoena was no longer necessary.
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