Senate Democrats Dream Of Delegating Supreme Court Oversight To The House

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WASHINGTON, DC - FEBRUARY 12: Senate Majority Whip Richard Durbin (D-IL) (L) (Photo by Chip Somodevilla/Getty Images)
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Ed. Note: Nicole Lafond will be back to helming Where Things Stand soon.

After a parade of stories centered on Justice Samuel Alito’s demonstrations of his right-wing partisanship, Senate Democrats have executed their big response: a show vote on a bill that would impose an ethics code on the Supreme Court.

The would-be requirements in the bill themselves are fairly modest: a binding ethics code, “improving” transparency when a justice is connected to a party or amicus before the Court, requiring justices to explain why if they recuse themselves. 

It’s among the most modest Supreme Court reform ideas, sharing a crowded stage with term limits, court expansion and jurisdiction removal. But the relatively minor ethics code bill faced overwhelming GOP opposition and Senate rules that allow a single senator to block it. That reality was anticipated a day earlier by Senate Judiciary Chair Dick Durbin (D-IL), who sought unanimous consent late this afternoon to pass the legislation amid fury from the left that such a stream of Supreme Court scandals has resulted in so little action from the Senate committee tasked with its oversight. 

“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,” Durbin told reporters on Tuesday. 

On the floor Wednesday, Durbin cited, among other things, Justice Clarence Thomas’ and Alito’s acceptance of lavish gifts and the flags flown at Alito’s homes — which Sen. Sheldon Whitehouse (D-RI) quipped were “MAGA battle flags” — as casting a “dark shadow on the Court.” Sen. Peter Welch (D-VT) called the justices’ acceptance of gifts “self-serving and gross.”

Durbin and Welch also criticized Chief Justice John Roberts for refusing to enforce a robust ethics and recusal code himself.

Sen. Richard Blumenthal (D-CT) made a direct appeal to Roberts from the Senate floor to endorse the legislation to ensure the enduring “credibility” of the Court. He also called for further reforms, including an inspector general as part of the Judicial Conference, and a measure to “shed light” on the Court’s increasingly used shadow docket.

Sen. Lindsey Graham (R-SC), the ranking Republican on the committee, had already said that he’d object, ending the short-lived exercise in accountability. He took particular issue Wednesday with the transparency of amici provision, saying it would chill speech from people afraid that the would be “destroyed” by the media.

A series of Senate Judiciary Republicans, very pleased with the work of the right-wing Supreme Court, took to the floor to decry the “undermining” of the supposedly nonpartisan body. Sen. John Kennedy (R-LA), who took the floor after Graham, said the bill was not really about “ethics” but about “abortion.” Sen. Mike Lee (R-UT) claimed that the bill was crafted to threaten justices that don’t “toe the woke line.” Sen. John Cornyn (R-TX) intoned that the ethics code was Democrats’ attempt to “control” a whole “branch of government.”

To this point, Durbin’s most significant move was to send letters to Alito, asking him to recuse from cases related to the Jan. 6 insurrection (in a shocking turn of events, he said no) and to Roberts, asking him to come to the Hill to talk things over (ditto). 

While the filibuster does present a problem to Democratic senators eager to perform robust Supreme Court oversight — Republicans would likely block subpoenas of, say, Alito and Thomas — Durbin can’t been roused to hold hearings and doesn’t sound enthused about more out-of-the-box ideas either. Rep. Jamie Raskin (D-MD), ranking member of the House Oversight Committee, recently wrote an op-ed arguing that the Department of Justice can compel justices to recuse themselves. Durbin told reporters this week that, while he’s exploring the idea out of respect for the former longtime constitutional law professor, it’s “a reach.” 

Perhaps the best indication of Senate Democrats’ appetite for oversight (or lack thereof) came from Sen. Sheldon Whitehouse (D-RI), typically a crusader for Supreme Court accountability: “I hope and pray that the time will come when the House is issuing subpoenas that are not subject to the Senate filibuster,” he said, per Politico.

Senate Democrats’ game plan to hold the conservative justices to account, maybe getting some political mileage from doing battle with a historically unpopular high court directly opposed to their policy interests in an election year? Hope their party flips the House.

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Notable Replies

  1. Avatar for enn enn says:

    Yes, courts need to have meaningful changes but that requires a Democratic trifecta. Vote!

  2. Digby spelling out what all of us know (even the cult knows it).

    “Just as Donald Trump realized that as long as he had the Republican Party backing him he could not be convicted in an impeachment trial, so too have the Supreme Court right wing extremists. They essentially have full immunity from consequences for their corruption. I’ll be surprised if they don’t grant it for Trump for all of his legal problems as well. They have shown their true colors. Immunity from accountability is their new superpower.”

  3. Avatar for xcopy xcopy says:

    The would-be requirements in the bill themselves are fairly modest: a binding ethics code, “improving” transparency when a justice is connected to a party or amicus before the Court, requiring justices to explain why if they recuse themselves.

    Is this a typo?? They need to answer why they are NOT recusing themselves, not the otherway around.

    Comon fellas, put on your big boy governing pants and do your jobs. Republicans go to the mat, every time, over nothing. Meanwhile, the dems look like a bunch of drooling idiots pretending to govern and failing to hold CLEARLY corrupt and guilty people accountable for crimes committed out in broad day light.

    I gotta light a fire under the asses of the do nothing democrats who claim to represent and work for me. Earn your paychecks.

    What good are they if THIS is what they do with oversight power??? All my reps are getting hot calls tomorrow.

    Fascism is coming to America unless they/we do something to stop it. These lazy hucksters are earning their own place in the 8th layer of hell, reserved for Frauds.

  4. Avatar for xcopy xcopy says:

    They are fixing the wrong problem.

    Here is a list of all recusals by the specified Supreme Court justices, summarized by chatGPT.
    (Fun side note: Kavanaugh, and Barrett were correctly identified even though I described them in the request as “Handmaiden and Rapey McBeerface”.)

    Justice Clarence Thomas:

    1. United States v. Virginia (1996) - Recused due to his son attending Virginia Military Institute ).

    Justice Samuel Alito:

    1. Valentine v. PNC Financial Services, et al. (2021) - Recused due to owning shares in PNC Bank.
    2. Feng v. Komenda and Rockwell Collins, Inc. (2019) - Recused due to owning shares in United Technologies Corp., parent company of Rockwell Collins.

    Justice Brett Kavanaugh:

    1. N/A - No high-profile recusals noted, but his confirmation was contentious due to allegations against him.

    Justice Amy Coney Barrett:

    1. 79 recusals during her first term - Often due to her recent appointment and involvement in related cases before joining the Court.
    2. Americans for Prosperity Foundation v. Bonta (2021) - Did not recuse despite significant support from the organization for her confirmation.

    Chief Justice John Roberts:

    1. Recused in various cases due to financial conflicts or prior involvement at lower court levels.
  5. I was just reading an article in the new Republic that was based on an article on business insider that was an interview with Mark Martin, the man Clarence Thomas and his wife wife raised as a son. The Thomases have essentially cut him off, he hasn’t really seen them since he got in some trouble over 14 years ago with drugs in college. They don’t have a relationship with Martin’s children. Martin is currently in trouble again, serving time for drug-related offenses.

    This articles jumped out at me because of yesterday’s news, the big headline being that Hunter Biden was found guilty, and his father still loves him.

    My son is also been in trouble lately, although in my opinion he isn’t to blame. I find myself advocating for him strongly, fiercely and ethically and within the guidelines of the law and custom. I am inspired by Joe Biden. He’s literally an example to me in my life. I don’t know how to stress this enough. He literally is giving me strength with his example.

    And then there’s the Thomases.

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