The Senate Judiciary Committee punted on voting Thursday to subpoena GOP megadonors Leonard Leo and Harlan Crow as part of its Supreme Court ethics investigation.
Democrats on the Senate Judiciary Committee are seeking information from the pair after ProPublica reported they helped facilitate lavish trips for some of the Supreme Court's longest-serving conservative justices. The committee voted on two of President Joe Biden's judicial nominees but did not vote over the subpoenas, as it was expected to do.
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Committee Chairman Dick Durbin (D-IL) has accused Crow and Leo of "stonewalling" an ethics investigation into the high court that seeks to determine whether two Republican-appointed justices, Clarence Thomas and Samuel Alito, acted with any impropriety.
It's not clear why the committee didn't vote on the subpoenas. At one point, Sen. Marsha Blackburn (R-TN) threatened to file subpoenas against Justice Sonia Sotomayor's staff members, referencing the Associated Press report that found Sotomayor's court staff coerced colleges to purchase her books.
"What you are choosing to focus on is a discrediting of the court. And we know what this is about," Blackburn added.
Although Crow and Leo aren't accused of illegal conduct, Democrats such as Durbin and Sen. Sheldon Whitehouse (D-RI) have said the subpoenas are necessary to determine whether the justices acted unethically in their roles as jurists.
Republicans on the committee have vehemently disagreed with the ethics investigation, arguing it is concocted by Democrats who dislike the recent decisions of the 6-3 Republican-appointed majority on the Supreme Court.
"I promise you, everything that was working well with the committee is now in jeopardy," Sen. Lindsey Graham (R-SC) said. "You’re going to have a complete s*** show, but if that’s what you want, that’s what you’re gonna get."
For the subpoenas to have any teeth, the Senate would need to approve them with a full vote in the chamber. Alternatively, Democratic lawmakers like Durbin could refer their failure to comply to the Justice Department.
Congress, in recent times, has only sought criminal or civil enforcement of subpoenas in a handful of cases.
Former President Donald Trump's adviser Steve Bannon was referred for criminal contempt charges for refusing to comply with a Jan. 6 committee subpoena and was convicted, though he is appealing. A hearing at the U.S. Court of Appeals for the District of Columbia Circuit is happening in Bannon's case on Thursday.
While Crow and Leo have been singled out for their connections to the justices, there is no proof that any lavish trips Alito and Thomas attended had an influence on their votes over the years. Another person targeted by threat of subpoena was Robin Arkley II, who agreed on Wednesday to provide information relevant to the judicial ethics investigation and did not face the threat of a subpoena on Thursday.
Carrie Severino, president of the conservative Judicial Crisis Network and a former clerk to Thomas, likened Democrats' pursuit of an ethics investigation to similar efforts to engage in "packing the court," or trying to offset the conservative majority on the high court.
"They'd rather short-circuit the process by packing the court," Severino said. "This ethics stuff is really another bite at that same apple."
Durbin and Whitehouse are the two Democrats on the committee who have been the most vocal about pushing a binding ethics code on the high court, especially after Chief Justice John Roberts declined in April to testify to Congress about any alleged ethical lapses and after Alito said he doesn't think Congress has the authority to regulate the Supreme Court.
All nine members of the Supreme Court have said they adhere to the same ethical code of conduct that lower court federal judges follow.
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Likewise, a majority of justices on the high court have suggested that an ethics code for the Supreme Court would be a positive development, as the court has been deliberating internally for years about establishing a new code of ethics.
Justice Amy Coney Barrett, an appointee of Trump, became the latest justice to speak out on ethics in a statement last month, saying she would support a code of ethics for the Supreme Court.