Long-vexed advocates cheered when Senate Judiciary Democrats finally stepped up their efforts to target corruption at the Supreme Court, setting aside their favored strongly worded letters and fist-shaking floor speeches for subpoenas.
But the plan to authorize those subpoenas, unveiled on Oct. 30, has yet to come to fruition with yet another vote planned for Thursday canceled at the last minute.
“Markup was canceled due to CR votes and wrap up happening last night,” a Judiciary Committee spokesperson told TPM, referring to the continuing resolution to temporarily keep the government funded.
The committee initially planned to subpoena right-wing Court influencers Harlan Crow, Leonard Leo and Robin Arkley II.
The vote slated for last Thursday was abruptly canceled without explanation, as Chair Dick Durbin (D-IL) gavelled out after considering a few judicial nominations. He later attributed the cancellation to “scheduling issues.”
“Senate Judiciary Committee Democrats remain united in our effort to implement an enforceable code of conduct for Supreme Court justices. To inform this effort, we will continue to pursue subpoena authorization for Harlan Crow and Leonard Leo — two individuals who have refused to comply with this Committee’s oversight requests for months,” he said in a statement.
Arkley had been dropped due to his cooperation with the committee, Durbin said.
Sen. Sheldon Whitehouse (D-RI) attributed the delay to Republican tactics.
“By putting up 90 amendments, Republicans jammed the gears of the committee,” he said.
So the vote was rescheduled to this Thursday, Nov. 16. Once again, it didn’t happen.
The Judiciary spokesperson did not confirm that the subpoena votes would be rescheduled. Whitehouse had said earlier this week on MSNBC that he and Durbin are “eager to proceed” with the subpoena vote.
The Capitol is a ghost town, with both the House and Senate scurrying out early after passing a government funding stopgap and averting a shutdown. House Democrats on the Committee on Transportation and Infrastructure tweeted a picture Wednesday of their members sitting in their half-empty meeting room, writing that they had to cancel planned votes because too few committee Republicans had attended the markup.
Still, it’s a less than conscientious approach to a dynamic that Democrats — and the public — see as a massive, corrosive problem as the right-wing Court routinely rules in line with the ideological priorities of Leo and Crow. A series of news reports, most notably from the news outlet ProPublica, detailed the various luxe vacations and other perks that flowed from wealthy right-wing actors to justices including Clarence Thomas and Samuel Alito.
The committee’s punt is in keeping with some of the muttering coming from inside the house about Senate Democrats’ resistance to a more aggressive approach to Supreme Court oversight.
The logistical realities also play a role in the dampened enthusiasm, though. While Democrats have sufficient committee power to authorize the subpoenas without Republican help — which has no chance of materializing, as Republicans are furious about this effort — they’d need a full floor vote to enforce them, should Leo and Crow ignore the subpoenas. That vote would be subject to the filibuster, and committee Ranking Member Lindsey Graham (R-SC) has already promised to quash them.
As multiple Democratic members of the committee told TPM earlier this month, if Republicans make good on the threat, they don’t think they have any other recourse to enforce the subpoenas. They could refer the matter to the Department of Justice, but it would be time consuming and the DOJ regularly rejects such referrals.
The Supreme Court unveiled an ethics code earlier this week, which has been widely panned as toothless and reliant on the justices’ self-policing. Aggressive oversight of the Court may hinge on the 2024 election, and Democrats’ flipping of the House, where they could conduct investigations without a filibuster blockade.