Senate Democrats face calls for broader Supreme Court investigations

Senate Democrats face growing pressure from the left to question the Supreme Court on ethics issues, but they say their options are limited given the court’s independence and Republican opposition.

Advocacy groups and progressives are stepping up calls for Senate Democrats to take more aggressive action after Chief Justice John G. Roberts Jr. rejected a request to recusal Justice Samuel A. Alito Jr. from pending proceedings related to the Jan. 6 attack on the Capitol and to grant Donald J. Trump immunity for any actions leading up to the attack.

Leading Democrats on the Judiciary Committee urged Justice Alito to recuse himself from the cases after reports emerged that two “Stop the Steal” flags had been flown outside his homes. The judge said his wife was responsible for the flags and refused to recuse herself from the cases.

Earlier this week, a coalition of liberal groups and House Democrats called on the Senate to launch an investigation into Justice Alito’s activities, arguing that the Senate must stop acting as if it is powerless.

Reps. Jamie Raskin of Maryland and Alexandria Ocasio-Cortez of New York, the two top Democrats on the Oversight Committee, have scheduled a roundtable on the issue for next Tuesday to address a number of controversies surrounding the court, including unreported gifts and travel expenses by the justices and their impact on the court’s agenda.

“The entire country is in the grip of a profound ethical crisis,” Raskin said in a statement. “Our democracy, our right to vote and our fundamental rights are at stake, and everything we have fought for is in danger because of this out-of-control court.”

Senate Democrats have struggled to respond to the ethics controversies that have bedeviled the court, citing a refusal by members of the court to engage with them and fierce opposition from Republicans who portray the Democrats’ efforts as a partisan exercise aimed at undermining the credibility of a court dominated by conservatives.

“Remember, it’s a separate branch of government and it has its own authority,” said Senator Richard J. Durbin of Illinois, the second-ranking Democrat in the Senate and chairman of the Judiciary Committee. “There are precedents for what we can and cannot do.”

He added that the committee’s independent reporting and work had given the public a “clear understanding of the unethical conduct of several judges.”

After a heated meeting last November, the Judiciary Committee, in a sharp party-line vote, approved subpoenas for two conservative benefactors of the court to compel them to testify about their travels with the justices and their influence over them. But the committee has taken no further action on the matter.

Democrats fear that failure in their efforts to win even a majority of senators to enforce subpoenas against the court or Judge Alito himself—not to mention the 60 votes needed to overcome procedural objections—would further weaken the Democrats’ position and undermine the Senate’s subpoena power altogether.

“The people who say ‘subpoena him’ don’t even read the Senate rules,” Durbin said. “You need 60 votes, period. 60 votes.”

Democrats also fear that an escalation of the conflict with the court could prompt Republicans to stop all cooperation in meeting or exceeding Democratic efforts to confirm 234 federal judges in four years, as the Trump administration has done. To clear that hurdle, about three dozen more judges must be appointed, and Republicans could jeopardize that goal if they decide to retaliate.

Earlier this week, Senator Mitch McConnell, Republican and minority leader of Kentucky, accused Democrats of possibly unethical behavior by pressuring the Chief Justice to force Justice Alito to recusal himself or to punish him.

“This goes beyond the usual disgraceful bullying that my Democratic colleagues have perfected,” he said. “The recusal is a judicial act. These senators are privately asking the Chief Justice to change the course of the pending judicial proceedings.”

Despite the procedural hurdles, progressive judicial activists said the situation is so dire that Democrats must consider norm-breaking behavior to force the Senate to address the court’s ethical issues and hold the justices accountable.

“We are facing the largest judicial corruption crisis in our country’s history, and the chairman of the Senate Judiciary Committee acts like he can’t do anything about it,” said Alex Aronson, executive director of Court Accountability and a former Senate Democratic legal counsel. “Durbin can subpoena these judges by forcing tough floor votes to enforce the subpoenas, or bring criminal charges against rebel targets.”

Democrats are still a long way from such action, although Senator Chuck Schumer, Democrat of New York and the majority leader, said he had discussed with Mr. Durbin and others “the best way to proceed.” One possibility appears to be to try to force a vote on a Supreme Court ethics and recusal bill by Senator Sheldon Whitehouse, Democrat of Rhode Island, although that approach is unlikely to appease critics or overcome Republican opposition.

Some Democrats say they understand the left’s frustration.

“We are not doing enough,” said Senator Peter Welch, Democrat of Vermont and a member of the Judiciary Committee. “The question is not whether we want to do more. The question is whether we can do more when we have a united Republican opposition. That is the practical challenge.”

Despite that criticism, Whitehouse, who has argued for years that conservatives have been co-opted on the court, said Democrats are making progress by building support for a bill to restructure the court, bringing it into the spotlight of public scrutiny and pushing forward an investigation in the Finance Committee that is examining the tax implications of gifts to judges.

“My approach has been slow, steady and persistent,” Whitehouse said. “And we’re gaining quite a bit of ground.”

He noted that the upcoming rulings on January 6 and presidential immunity for Mr Trump could potentially lead to even more support for the Democratic cause.

“This decision really brings to light a conflict of interest,” Whitehouse said. “Right now, it’s more theoretical: I fly a MAGA battle flag over my house, but I blame my wife for it. What’s the impact?”

“Well,” he said, “the consequences arise when you make a decision.”