Supreme Court Corruption And The Folly Of Preemptive Surrender

Democrats will put a squeeze on Clarence Thomas, Sam Alito, and their bribers. Good!

(Kent Nishimura / Los Angeles Times via Getty Images)

Dick Durbin has caught a lot of flack from the progressive punditry in recent years, including over his apparent lack of interest as Senate Judiciary Committee chairman in mounting a vigorous oversight investigation of Justices Clarence Thomas and Samuel Alito.

Now that Durbin has decided to subpoena hostile witnesses in that investigation (or at least to threaten to subpoena them) I want to offer him qualified praise and take a close look at why he and other Democrats didn’t initially welcome the opportunity to conduct this oversight. 

The short backstory here is that from the moment ProPublica published its first Thomas-bribery story in April, Durbin clearly hoped he could pass the accountability buck to Chief Justice John Roberts, and limit congressional involvement in the scandal to a doomed effort to subject the Supreme Court to new ethics legislation. But under public and internal pressure, he sought records and testimony from witnesses including Harlan Crow, Leonard Leo, and Robin Arkley, all three of whom have refused to cooperate faithfully with the committee. To the contrary, they’ve asserted separation of powers protections for themselves as private citizens, arguing Congress has no constitutional power to regulate their corrupt relationships with the justices, and thus that the underlying investigation is illegitimate—has no valid legislative purpose. (The actual Constitution says “The supreme Court shall have appellate Jurisdiction… under such Regulations as the Congress shall make.” Originalism!)

Their defiance forced Judiciary Dems to decide whether they would honor and fight for their institutional obligations. If they chose to fold or pass the buck, it would suddenly entail backing down in the face of lawless contempt of their committee and the Senate. 

They will seemingly not back down.

The committee will empower Durbin to subpoena all three witnesses as early as this week. In the interest of positive reinforcement, I want to commend that decision, and encourage Durbin and the committee to pursue these guys as aggressively and confidently as possible. 

But I also want to help readers understand why they came to this decision reluctantly, and why I think the reluctance is a root cause of Democrats’ larger political problems. 

Everything you need to know is in this article by TPM’s Kate Riga. Its details ring familiar to those of us who reported on the anemic House oversight of Trump in 2019 and 2020. Back then, Democrats gamed out the subpoena and impeachment processes, deduced that the confrontation with Trump would likely end without a swift victory, and so were reluctant to escalate. Here the story is similar: Republicans will filibuster efforts to enforce the subpoenas, so why bother? 

Such a filibuster of enforcing a committee subpoena would be unprecedented, per Bloomberg Law, and would set an example Senate Democrats could take advantage of whenever they’re stuck back in the minority. But most on the committee didn’t express much optimism that their subpoenas would survive the GOP gauntlet. 

My reporting leads me to believe this is a key reason the investigation had been so tepid.