Democratic Sen. Dick Durbin, the chair of the Senate Judiciary Committee, is the key person — perhaps in America right now — who we should be expecting to take action aimed at holding Justice Clarence Thomas and, with him, Chief Justice John Roberts and the Supreme Court accountable. The Republicans control the House, so any actual oversight is going to come from the Senate.
But, what we’ve seen so far suggests that Durbin doesn’t see his task in the same way that most Democrats — seeing what they’ve seen about Thomas over the past month — see it. (Yes, there have also been other Durbin issues — I’ve been harping on blue slips since the election and there’s the Vallas endorsement, to name two — but I’m focused on the Supreme Court, and Thomas, here tonight.)
Even Republicans — outside of Capitol Hill and the Federalist Society — question Thomas’s ethics here.
On Sunday, though, Durbin was asked on Meet the Press by Chuck Todd why he didn’t invite Thomas to appear before the committee.
“I think I know what would happen to that invitation,” Durbin said. “It would be ignored.”
Yes, sir, he very well might! Let him!
Which leads into the second problem.
Instead of inviting Thomas, Durbin invited Roberts to appear before the committee to discuss the court’s ethics policies — and problems.
“This is John Roberts’ court,” Durbin said in his Sunday appearance on Meet the Press. “History is going to judge the Roberts court by his decision as to reform, and I think this an invitation, on May 2, for him to present it to the American people.”
Despite that, Roberts has not responded — and Durbin told CNN earlier that there has been “no discussion” of subpoenaing Roberts to attend.
Many progressives are very upset — that’s the nice way of putting it — that Durbin pushed the subpoena issue off table immediately.
That, in turn, leads to the third problem: Sen. Dianne Feinstein, whose extended absence from the committee is being used to explain why subpoenas are out of the question.
Feinstein has been out of the Senate since being hospitalized in March for shingles. Although she has been discharged from the hospital, she has not returned to Washington. It is not clear when, or if, she will be able to return. As to the Judiciary Committee specifically, with the committee membership set at 11-10, her absence means the Democrats lack a majority on the committee.
And though many Democrats outside the Senate have called on Feinstein to resign, those within the Senate have been far less willing to do so.
Durbin — who acknowledged on Meet the Press that he has not spoken to her himself in several weeks — is still saying what is, ultimately, a truism: Feinstein’s decision about her future is “in her own hands.”
On the one hand, Durbin points to her absence as an excusefor being unable to play hardball with Roberts — or Thomas. On the other hand, Durbin isn’t willing to push her to do the thing that could allow him to play hardball with Roberts or Thomas.
This isn’t a done deal. Durbin could be laying things out so he can, after refusals, justify a more aggressive approach. But, as Democrats have found out many times in recent years — and as Republicans never seem to forget — time is of the essence when it comes to taking action while you have power.
At this point, it sounds like Durbin still hasn’t learned that.
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This week at SCOTUS
Over at the Supreme Court itself, there is a calmer week ahead, as of now, compared to last week.
We’re expecting orders at 9:30 a.m. Monday out of the April 21 conference, where the justices decided whether to take up any new cases.
The final oral arguments scheduled for the term are also this week — on Monday, Tuesday, and Wednesday — but they aren’t headline cases (especially given this past week). Wednesday’s case, Tyler v. Hennepin County, is about what happens to excess funds when governments take and then sell someone’s property to satisfy a debt. The case raises interesting Takings Clause and Eighth Amendment questions. (And, it could be notable in light of the court’s decision to take up an asset forfeiture case for next term, which was covered by C.J. Ciaramella at Reason.)
As of now, though, no opinions out of argued cases are expected this week.
There also are no executions scheduled for anywhere in the country this week, so I’m not expecting anything out of the shadow docket — again, as of now — either.
I'm starting to think that the problem is less with any one person, be it Feinstein and Durbin, and more about the fact that Democratic leadership from Schumer down is just full of aged, complacent, and weak Senators who just want to live the lives of Senators and have convenient exuses on hand for why they fail.
All this talk about confirming judges in the 118th has gone by the wayside because of Feinstein. But the failure to do anything but let that stand is harder to explain. As is the failure to confirm the judges who don't need to move through committee.
Part of me thinks they are using Feinstein as an excuse. Either they aren't willing to force the issue or they lack the votes to force the issue because Manchin and Sinema won't vote with them.
Schumer ought to cancel summer recess, keep all of the Senators in both parties, but I suspect he get challenged on that and lose anyway.
Well said. And it is not age; it is lack of courage and spine.