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Dick Durbin

Senate Democrats’ big Supreme Court whiff

It’s been more than a year since ProPublica first reported on Supreme Court justices’ alleged ethical lapses, setting off sweeping investigations helmed by the Democratic-led Senate Judiciary and Finance committees.

To date, Senate Democrats have failed to land a single meaningful punch on the high court. This is true even as new incidents emerge that call into question the impartiality of some of the court’s conservative-leaning justices.

Judiciary Committee Democrats met privately after Senate votes Monday night to discuss this issue. Top Democrats continue to insist that the best path forward remains for the Senate to take up a bill that has zero chance of passing — legislation mandating an enforceable code of conduct for the court.

For now, Democrats’ strategy is to continue to raise public awareness while at the same time tempering expectations.

“There are precedents as to what we can and cannot do. But I think the American people have a clear understanding of some of the unethical conduct of several justices,” Senate Judiciary Committee Chair Dick Durbin (D-Ill.) said.

Durbin added: “I want all of the members and the public to be realistic about what this issue involves. It really is a court issue that should be resolved by the chief justice.”

Persistent roadblocks: To be sure, Democrats’ failure to extract a win here isn’t for lack of trying. Republican senators, the justices themselves and even subpoena targets have stymied Democrats’ requests at every turn. Led by Senate Minority Leader Mitch McConnell, Republicans accuse Democrats of trying to undermine the high court’s independence.

In fact, Republicans openly said conservative activists Leonard Leo and Harlan Crow, who were subpoenaed for details about their financial ties to conservative justices Clarence Thomas and Samuel Alito, should ignore the subpoenas.

The justices themselves also haven’t been shy about dismissing the idea that Congress has a direct oversight role over the Supreme Court, citing separation of powers arguments. Chief Justice John Roberts rejected a request to meet with Durbin. Last year, Roberts also declined to testify before the Judiciary Committee. And Alito, the latest target of Democrats’ ire, claims Congress doesn’t have the authority to enact an ethics code.

In November, Democrats got a modest victory when Roberts said the justices had agreed to a voluntary code of conduct. But it lacked an enforcement mechanism, so Democrats were far from satisfied.

There’s an argument to be made that Democrats could be doing more but are choosing not to out of fear of upending the bipartisanship that drives much of what the Senate does at the committee level.

The power of the purse: If Democrats wanted to go at this issue harder, they could use the appropriations process to force the Court to adopt an enforceable ethics code — something Democrats flirted with during the FY2024 funding stretch last year.

Of course, that would mean blowing up the bipartisan appropriations process that has given the Senate a leg up in spending fights with the House, where partisan funding bills are the norm.

Sen. Chris Van Hollen (D-Md.), who leads the Appropriations subcommittee that handles funding for the federal judiciary, told us Monday he wants to “renew” the conversation over tying SCOTUS funding to the adoption of a more stringent ethics code.

Van Hollen lamented that Democrats couldn’t get this done last year, attributing it to a desire by Senate Appropriations Committee Chair Patty Murray (D-Wash.) and Sen. Susan Collins (R-Maine), the ranking member, to avoid partisan amendments.

All indications are that this year’s funding process will be no different.

Sen. Murray and Sen. Collins have said from the beginning, no poison pills,” Van Hollen said. “I can’t tell you that we’ve overcome that obstacle right now.”

The subpoena conundrum: Democrats could also try to subpoena the justices. But it’s unclear whether subpoenas would have the support of every Democratic Judiciary Committee member. And Durbin noted that subpoenas aren’t enforceable without 60 votes on the Senate floor.

“There are some people who don’t understand the Senate Judiciary Committee procedural rules,” Durbin lamented. “Keep in mind it’s a separate branch of government. It has its own authority.”

Of course, there’s a longstanding precedent of Supreme Court justices testifying before Congress on a host of matters. So lawmakers are tiptoeing around the question while the court continues to isolate itself. One top Democrat referred to it as a “chronic condition” that requires persistence to properly address.

“The justices obviously don’t want to talk about their problems, but their problems are not going away,” Sen. Sheldon Whitehouse (D-R.I.) told us. “One bad moment is no discouragement.”

Also — Bibi, or not: We reported Monday that Israeli Prime Minister Benjamin Netanyahu would address Congress on June 13. Speaker Mike Johnson’s team had already begun telling other congressional leaders the date was locked. Netanyahu, however, has waffled on the date because it’s the second day of the Jewish holiday of Shavuot. There was something clearly lost in translation between Washington and Jerusalem and the two sides are now looking for a new date.

— Andrew Desiderio and Max Cohen

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