Senate Democrats face growing pressure from the left for investigations into ethical issues at the Supreme Court, but they say their options are limited given the court’s independent status and Republican opposition .
Advocacy groups and progressives are stepping up calls for Senate Democrats to be more aggressive after Chief Justice John G. Roberts Jr. rejected a plea to require Justice Samuel A. Alito Jr. to recuse himself cases pending on January 1. 6 against the Capitol and the immunity of Donald J. Trump for any actions leading to it.
Top Democrats on the Judiciary Committee called on Justice Alito to recuse himself from the cases following reports that two flags associated with the “Stop the Steal” movement were flying outside his residences. The judge said his wife was responsible for the flags and refused to get out of the business.
Earlier this week, a coalition of liberal groups and House Democrats urged the Senate to open an investigation into Justice Alito’s actions, with activists saying the Senate needs to stop behaving like it’s powerless .
Reps. Jamie Raskin of Maryland and Alexandria Ocasio-Cortez of New York, the two top Democrats on the Oversight Committee, have planned a roundtable discussion on the issue next Tuesday. The aim is to explore a series of controversies surrounding the Court, including unreported gifts and travel offered to judges, and their impact on the Court’s agenda.
“The entire country is plunged into a supreme ethical crisis,” Mr. Raskin said in a statement. “Our democracy, our voting rights and our basic human rights are at stake, and everything we have fought for is in danger because of this runaway court. »
Senate Democrats have struggled to respond to the ethics controversies ensnaring the court. They cited the refusal of court members to engage with them and fierce opposition from Republicans who portrayed the Democratic effort as a partisan effort designed to undermine the credibility of a court dominated by conservatives.
“Keep in mind that this is a separate branch of government and it has its own authority,” said Sen. Richard J. Durbin of Illinois, the No. 1 leader. 2 Democratic senator and chairman of the Judiciary Committee. “There are precedents for what we can and cannot do.”
He added that independent reporting and the committee’s work allowed the public to “clearly understand some of the unethical conduct of several judges.”
After a heated session last November, the Judiciary Committee, in a close party-line vote, approved subpoenas from two conservative benefactors of the court in an attempt to compel them to testify about their travels and their influence on the judges. But the committee made no progress on their case.
Democrats fear that failure to muster even a majority of senators to enforce subpoenas against the court or Justice Alito himself — let alone the 60 votes needed to overcome procedural objections — could would put Democrats in an even weaker position and undermine the Senate’s overall subpoena power. .
“Those who say ‘subpoena him’ don’t even read the Senate rules,” Mr. Durbin said. “You need 60 votes, period. 60 votes.
Democrats also fear that the escalating conflict with the Court could lead Republicans to cease cooperation when it comes to the Democratic push to match or improve on the Trump administration’s confirmation of 234 federal judges in four years. They need about three dozen more seats to surpass that threshold, and Republicans could put that goal in jeopardy if they choose to fight back.
Earlier this week, Senator Mitch McConnell, Republican of Kentucky and minority leader, accused Democrats of potentially unethical conduct for pressuring the chief justice to force Justice Alito to recuse himself under penalty sanction.
“This goes beyond the standard shameful harassment that my Democratic colleagues have perfected,” he said. “The challenge is the judicial act. These senators are privately asking the chief justice to change the course of the ongoing litigation.
Despite the procedural hurdles, progressive activists said the situation is serious enough that Democrats must consider substandard behavior to force the Senate to confront ethical questions in court and hold judges accountable.
“We are facing the greatest judicial corruption crisis in our nation’s history, and the Senate Judiciary Chairman is acting like there is nothing he can do about it,” said Alex Aronson, executive director of Court Accountability and former Democratic Senate Counsel. “Durbin can subpoena these judges, forcing tough votes to enforce subpoenas or initiate criminal referrals against rogue targets.”
Democrats are far from those actions, although Senator Chuck Schumer, Democrat of New York and majority leader, said he had discussed with Mr. Durbin and others “the best way forward.” One option appears to be to try to force a vote on an ethics and Supreme Court impeachment bill introduced by Senator Sheldon Whitehouse, Democrat of Rhode Island, although this approach is unlikely to appease the critiques or overcomes Republican opposition.
Some Democrats say they understand the left’s frustration.
“We’re not doing enough,” said Sen. 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: Can we do more when we have a united Republican opposition? This is the practical challenge.
Despite the criticism, Mr. Whitehouse, who has argued for years that the court’s conservatives have been co-opted, said Democrats were making progress, rallying support for legislation to overhaul the court, focusing attention of the public on it and continuing an investigation within the Finance Committee. , which examines the tax implications of gifts to judges.
“My approach has been slow, steady and persistent,” Mr. Whitehouse said. “And we’re gaining a lot of ground.”
He stressed that upcoming decisions regarding the Jan. 6 and presidential immunity for Mr. Trump could potentially further bolster support for the Democratic cause.
“This decision really brings to life a conflict of interest,” Mr. Whitehouse said. “Right now it’s somewhat theoretical: I fly a MAGA battle flag over my house, but I blame it on my wife. What is the impact ?
“Well,” he said, “impact happens when you make a decision. »