If Senate Democrats plan to subpoena conservative judicial activists as part of a Supreme Court ethics investigation, Republicans say they must go after liberal advocates the same way.
Senate Judiciary Committee Chairman Dick Durbin (D-IL) has sought to authorize subpoenas for influential conservative judicial activist Leonard Leo and GOP megadonor Harlan Crow, defending the subpoenas as necessary after the pair’s “defensive, dismissive refusals” to cooperate with a congressional investigation. Now, Republicans have proposed more than 150 additional subpoenas to broaden an investigation they say is one-sided against conservative justices on the high court.
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The Washington Examiner obtained copies of amendments that Republicans want added to the proposal to subpoena Leo and Crow. Sen. Marsha Blackburn (R-TN) previously brought up one major amendment was by demanding subpoenas for Democratic-appointed Justice Sonia Sotomayor‘s staff and book publisher.
“What we learned was that over the years, her staff has pressured public institutions to buy her books,” Blackburn said before the vote to subpoena Crow and Leo fell apart on Nov. 9, saying Democrats were engaging in an “assault on the legitimacy of the Supreme Court.”
Sotomayor partook in two separate copyright infringement cases concerning publishing conglomerate Penguin Random House, failing to recuse from a case that involved her book publisher. Her court staff also reportedly pressured colleges and libraries to purchase more of her books, from which she has earned nearly $4 million since she joined the court in 2009, according to the Associated Press.
Durbin postponed the Nov. 9 planned vote to authorize the subpoenas after Republicans on the panel filed dozens of amendments to put other wealthy liberal advocates in the lineup, including Blackburn’s proposal. The committee once again did not vote on the subpoenas after Durbin canceled last Thursday’s meeting ahead of the Thanksgiving holiday, with no clear indication of when the next vote would be called.
After the first failed attempt, Sen. Sheldon Whitehouse (D-RI), a staunch critic of the conservative high court, vowed Democrats would push ahead for a vote “now that we have seen this strategy” from committee Republicans, according to a statement. Durbin similarly said, “We will continue our efforts to authorize subpoenas in the near future.”
Other GOP panelists have pushed to subpoena organizations and names of wealthy elites who previously offered generous travel gifts to two former justices on the high court, including retired Justice Stephen Breyer and the late Justice Ruth Bader Ginsburg, who were both nominated by Democratic presidents.
One amendment proposed by Sen. Lindsey Graham (R-SC) called to subpoena David Rubenstein, a private equity tycoon who, according to Breyer’s 2013 disclosure, paid for his airfare to the island of Nantucket.
Graham also proposed a subpoena for Arabella Advisors, a consulting firm overseeing an anonymously funded network that spent over $1 billion last year propping up liberal causes, including efforts to raise ethics concerns about the 6-3 Republican-appointed majority on the high court.
Another proposal by Sen. John Kennedy (R-LA) would ask for records related to the Pritzker family’s financial contributions for many of the justices’ trips from 2004 to 2018. Kennedy would also seek records related to Ginsburg’s travels to the Middle East that were supported by Morris Kahn in 2018, one year after Kahn had business before the court in Openet Telecom, Inc. v. Amdocs, a case from which Ginsburg did not recuse.
While Republicans are in the minority in the Senate and can be thwarted by a simple 12-11 Democratic-majority committee vote, the GOP panelists say a double standard exists for the investigation, suggesting that Durbin’s interests are too narrowly focused on investigating conservative justices on the bench.
“If the Democrats insist on going down this road of partisan subpoenas, it’s only fair for Republicans to seek subpoenas on friends and allies of Democrat-appointed Justices,” said attorney Mark Paoletta, a lawyer who worked on Republican-appointed Justice Clarence Thomas’s confirmation and is a friend of the justice.
Democrats’ investigation into the Supreme Court’s ethical conduct was spurred after a report in April by the nonprofit outlet ProPublica detailed Thomas’s repeated and undisclosed travel with Crow, who helped finance years of separate vacations taken by Thomas and his spouse, Ginni Thomas. Interest in subpoenas for Crow and Leo grew after ProPublica reported in July that Justice Samuel Alito was allowed to fly on billionaire Paul Singer’s plane for an Alaskan fishing trip, which was aided in organization by Leo.
Leo is co-chairman of the board of the Federalist Society and helped with former President Donald Trump‘s short list of Supreme Court nominees, which eventually yielded Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Leo has not been accused of wrongdoing but has vowed to fight against the “disgusting liberal McCarthyism” behind the congressional investigation’s efforts.
Crow, who has contributed more than $429,000 to current GOP members of the committee since 2001, has offered to work with Democrats on the investigation but has disputed their authority to probe the high court, rejecting some but not all of the committee’s demands.
It’s unclear whether the Supreme Court’s recent adoption of a code of ethics for the first time in the high court’s history has stalled Democrats’ progress on their investigative efforts. The Supreme Court announced the ethics code on Nov. 13 after months of pressure from Democrats in the wake of the ProPublica publications, on top of reports that the justices had been in the process of devising a code of ethics for the past several years.
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Chief Justice John Roberts and each of the current justices have said they live up to the same ethical standards for lower court justices in the years before adopting a specific ethics code. Meanwhile, some Democratic lawmakers, including Whitehouse, and other liberal-leaning advocacy groups have already said the new code fails because it lacks an enforcement mechanism.
Representatives for Durbin and Whitehouse did not respond to the Washington Examiner’s request for comment.
