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Senate Democrats authorize subpoenas related to Supreme Court ethics probe

Republicans walk out of contentious Judiciary Committee meeting before the vote

Senate Judiciary Chair Richard J. Durbin, right, speaks as ranking member Lindsey Graham listens during a committee markup on Thursday.
Senate Judiciary Chair Richard J. Durbin, right, speaks as ranking member Lindsey Graham listens during a committee markup on Thursday. (Bill Clark/CQ Roll Call)

The Senate Judiciary Committee authorized subpoenas Thursday as part of the panel’s inquiry into Supreme Court ethics, as exasperated Republicans walked out of a contentious meeting before the final roll call vote ended.

With only Democrats voting, the 11-0 outcome will allow Senate Judiciary Chair Richard J. Durbin to issue subpoenas for billionaire Republican donor Harlan Crow and conservative judicial activist Leonard Leo as the panel looks further into reported lavish gifts provided to justices on the highest court.

The issue had languished on the committee agenda for weeks, but the final vote happened relatively quickly Thursday with some procedural confusion.

Republicans offered a large number of amendments, but Durbin on Thursday pushed forward with the vote, saying afterward that Republicans wanted to keep talking rather than consider their own amendments.

“They think we’re going to roll over and come back sometime later and try all over again and face the same limitations,” the Illinois Democrat said. “You know, there reaches a point where there has to be a vote. They walked out on it. That’s their decision.”

Durbin said Republicans invoked a Senate rule known as the “two-hour rule,” which left Democrats with only minutes on Thursday to approve the subpoena authorization motion.

South Carolina Sen. Lindsey Graham, the top Republican on the Judiciary Committee, disputed that the vote had to happen Thursday and said the issue could be voted on in future weeks.

Durbin called a roll call vote on the motion, and Graham tried to jump in.

“Mr. Chairman, can I raise a point of order please?” Graham said.

“I’m sorry, but we have to proceed with this roll call,” Durbin responded.

“I can’t raise a point of order before we vote?” Graham asked.

“Clerk will call the roll,” Durbin responded.

By that time, Republican members on the panel had left the room, with Graham to follow before the final vote finished.

Crow’s office, in a statement provided Thursday, said committee Democrats violated the panel’s rules to authorize an “invalid subpoena,” something that “demonstrates the unlawful and partisan nature of this investigation.”

Getting teeth behind the effort will be an uphill battle for Democrats, who need 60 votes on the floor to enforce the subpoena. Durbin on Thursday also threw cold water on going to court to enforce the subpoenas.

Frustrations boiled over throughout the committee meeting Thursday, with Republican members tapping into grievances over committee precedent and locking horns with Durbin over the ability to speak on judicial nominees.

Senators also spent the meeting trading partisan barbs and chipping at each other’s argument over authorizing the subpoenas. Republicans describe the move as an underhanded attack that’s aimed at undermining the legitimacy of a conservative Supreme Court, while Democrats argued subpoenas are necessary to get more clarity on reported gifts given to justices.

Graham repeatedly slammed the subpoena effort, calling the push a politically motivated charade to attack the integrity of the Roberts court and to destroy the reputation of Justice Clarence Thomas.

If Democrats were serious about Supreme Court ethics, he said, they would bring to the floor a bill Democrats approved in committee earlier this year that would place new recusal standards on the justices and require the court to adopt a code of ethics.

“So we’ll play this game for a while. Nothing will happen. The subpoenas never get issued. The bill never gets voted on. But it’s important enough to destroy the committee,” Graham said.

Asked if the frustrations within the committee will cause collateral damage to the panel’s ability to approve Biden judicial nominees, Durbin said he hopes they can work together.

“We’ve had limited cooperation in the past; maybe it’ll be harder in the future. I don’t know,” he said.

The motion allows the chair to subpoena Crow and Leo, co-chairman of the board of directors of the Federalist Society. The panel has sought information from the two after reporting from ProPublica highlighted the ties the men had to the Supreme Court, which does not have a binding code of ethics.

Democratic senators have pointed to reporting from ProPublica that Thomas did not disclose that he went on international vacations and received free flights on a private jet from Crow.

Crow also bought from Thomas property where the justice’s mother still lives and paid for a relative’s education at a private school when Thomas served as the child’s legal guardian, the news outlet has also reported.

The committee had previously rolled out plans to vote to authorize a subpoena for Robin Arkley II, but Durbin said that he had cooperated enough and that a subpoena was no longer needed at this time.

Democrats, citing ProPublica reporting, say Justice Samuel A. Alito Jr. accepted a luxury Alaskan fishing vacation with Arkley and the vacation was attended by Leo.

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