(Bloomberg) -- Senate Democrats seeking to hold the Supreme Court accountable for ethical lapses by going after the wealthy benefactors of some of the most conservative justices were stymied by Republicans during a scheduled vote on issuing subpoenas Thursday.
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Senate Judiciary Committee Democrats postponed their vote on subpoenaing GOP donor Harlan Crow and conservative fundraiser Leonard Leo after their Republican counterparts proposed more than 80 amendments, according to committee Chair Dick Durbin. Durbin said the committee still plans to forge ahead with the subpoenas, which do not require GOP support, at a future date.
Leo and Crow are in the spotlight for their ties to Justices Clarence Thomas and Samuel Alito. The lawmakers plan to seek records and testimony about private jet trips, lodging and access to exclusive clubs that Leo and Crow provided to the justices, in addition to details about gifts and special treatment reported by investigative news outlet ProPublica over the past year.
“Congress needs to understand the full scope of the courts’ ethical crisis,” Durbin, an Illinois Democrat, said at the start of the panel’s meeting Thursday. “Leonard Leo and Harlan Crow are central players in the ethics challenges facing the court. Their baseless refusal to respond to the committee’s valid inquiries prevents us from understanding the full scope of this issue.”
The subpoena push comes after the Supreme Court justices rebuffed the Senate Democrats’ oversight efforts. Chief Justice John Roberts in April declined to testify in front of the panel about the controversies and Alito said publicly he doesn’t believe Congress has the authority to regulate the high court.
The subpoenas to Crow and Leo serve a purpose beyond aiding the committee’s investigation into judicial ethics. They could create a new level of scrutiny on the wealthy people who develop close ties with Supreme Court justices and potentially disincentivize the kind of extensive giving that has shocked the public this year, court watchers said.
“The Senate taking action helps to reinforce what should be the norm, which is that people don’t get to pay for special access to Supreme Court justices,” said Lisa Graves, the Senate Judiciary Committee’s former chief counsel of nominations, who’s now a researcher and advocate for court ethics.
In a sign that the threat is already proving effective, the committee dropped its plans to subpoena businessman Robin Arkley II after the Republican donor agreed to comply with the investigation, according to Durbin.
About the Debate Over the US Supreme Court and Ethics: QuickTake
Previously, the majority and minority leaders of the Senate Judiciary Committee typically opted to sign off on subpoenas together. But the issues surrounding the Supreme Court have cracked open divisions, with Republicans accusing Democrats of a politically motivated vendetta against the court’s conservative majority.
“You are trying to create a political issue that I think crosses constitutional boundaries,” said Republican Senator Lindsey Graham of South Carolina during a committee meeting last week.
Though Crow and Leo aren’t accused of illegal conduct, Democrats say the subpoenas are needed to determine whether the justices acted improperly and could shine a light on their personal lifestyles.
Short of subpoenaing justices, “this is a good second-best strategy,” said Kent Greenfield, constitutional law professor at Boston College Law School. “There’s no serious constitutional question that they have jurisdiction to call private individuals to testify before them.”
But Leo has claimed the Senate Judiciary Democrats are violating his free speech rights and called the probe “political retaliation.” He’s also questioned the validity of the committee’s oversight of the court, saying legislation to create an ethics code would be “unconstitutional.” Legal experts say that will be a difficult argument to prove.
Crow’s lawyers have offered limited information spanning the last five years, while Leo has so far declined to comply with the investigation entirely. Durbin has said the two are “stonewalling” the committee’s investigation.
If Leo and Crow defy the subpoenas, the legal fight could get messy – and could be appealed to the high court to decide the fate of a probe into its own ethical controversies. After the subpoenas are authorized by the committee’s Democratic majority, they can either seek civil enforcement of the subpoenas in court – a move that would require a vote of the full Senate – or they could refer the failure to comply directly to the Justice Department for prosecution.
Only a few times recently has Congress pursued criminal or civil enforcement when subpoenas were defied. The House referred former President Donald Trump’s adviser Steve Bannon for criminal contempt charges after he failed to comply with a Jan. 6 committee subpoena. Bannon was convicted and sentenced to four months, but is appealing. A hearing in his case is scheduled for later Thursday.
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Thomas and Alito have faced the most scrutiny. Crow took Thomas on luxury vacations for years, and the billionaire real estate magnate bought three properties owned by the justice’s family in 2014. Thomas initially didn’t report on the transactions in his annual financial disclosures and only disclosed the sales and some trips in his most recent filing.
A different ProPublica report revealed billionaire hedge fund owner Paul Singer took Alito on an undisclosed fishing trip in 2008. Leo, a longtime official of the conservative legal group the Federalist Society, helped organize the trip.
Some justices have publicly said the Supreme Court is working on a new ethics code to clarify its conflict of interest standards. But in the absence of viable legislation or a court announcement, Senate Democrats are using the bully pulpit.
“The Senate and the American people deserve to know the full extent of how billionaires and activists with interests before the Court use their immense wealth to buy private access to the justices,” Durbin said in a statement. “The highest court in the land cannot have the lowest ethical standards.”
--With assistance from Bill Allison.
(Retops with vote being postponed.)
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