Durbin leads Supreme Court pressure campaign on the left side

Sen. Dick Durbin (D-IL) is balancing the demands of the Left with the risk of GOP retaliation as he pressures the Supreme Court to address accusations of perceived ethical lapses by its conservative justices.

Last month, Durbin, as chairman of the Senate Judiciary Committee, called on Justice Samuel Alito to recuse himself from two Jan. 6 cases following reports that an upside-down flag, a symbol now tied to Capitol rioters, was flown in his yard in 2021.

Durbin sent a letter to Chief Justice John Roberts demanding a meeting several days later after a second report found another flag that Democrats have associated with the “Stop the Steal” movement was flown over Alito’s beach home last year.

The steps, both of which were rebuffed by the justices, reflect Durbin’s attempts to channel the Left’s fury at the Supreme Court, which has faced a drip of negative reports about its conservative members since Roe v. Wade was overturned in 2022.

But progressives’ underwhelmed and arguably hostile response to Durbin’s efforts also reveal a tension. He shares their goal of “reforming” the court but has taken a measured approach that reflects Senate norms of bipartisanship and the limits of his own power as Judiciary chairman.

Durbin, also the Democratic majority whip, has brushed off some of the more drastic steps as unrealistic. Progressives want him to drag Roberts and Alito before the Senate under threat of subpoena despite fierce opposition from Republicans, who say the pressure campaign undermines the integrity of the court and is politically motivated.

Any subpoena requires bipartisan cooperation or 60 votes on the Senate floor to be enforceable. Currently, Democrats only have 51.

“They better sit down and understand the Senate rules,” an exasperated Durbin said of progressives, “and I think they’ll see there’s a limitation on the Senate side you don’t find on the House side.”

But Durbin has also resisted steps he could theoretically take as unnecessary. Following reports of the upside-down flag, which Alito attributed to a dispute between neighbors and his wife, Durbin said there was not “much to be gained” from a hearing.

His remark prompted a wave of angry criticism. Durbin, along with his Judiciary colleague Sen. Sheldon Whitehouse (D-RI), has drafted legislation to impose an enforceable code of conduct on the Supreme Court, citing reports that Alito and Justice Clarence Thomas accepted undisclosed gifts from wealthy benefactors and activists.

But progressives say his letters and statements amount to “empty words.” Others have called Durbin “AWOL” on the matter.

The Senate’s progressive members are measured but no less interested in a forceful response.

“I think we’ve got to keep their feet to the fire, absolutely,” said Sen. Alex Padilla (D-CA), a member of the Judiciary Committee, when asked if Durbin should hold a hearing on Alito, who said his wife also flew the beach house flag, denying he had any knowledge of its Jan. 6-related connotation.

Padilla called possible next steps an “active conversation” with Durbin.

“We need to do more,” added Sen. Elizabeth Warren (D-MA).

“Watching John Roberts thumb his nose at Congress while members of his own court engage in one ethical scandal after another is bad for our judicial system and bad for our country,” she said.

The issue has put Durbin at odds with Whitehouse, viewed by progressives as more willing to challenge the Supreme Court. The two have worked in close concert, but Whitehouse has stepped out further than Durbin at times.

He called for an investigation into Alito following the flag reporting, while he will appear as a panel expert at a Tuesday roundtable on the Supreme Court hosted by House Democrats.

Durbin has indicated the Judiciary Committee could take additional action.

“There’s more that we’re considering,” he told the Washington Examiner, followed by a “We’ll see” when asked about opening a formal investigation into Alito.

Meanwhile, House Democrats have provided a template for the sort of action progressives would like to see taken.

Rep. Hank Johnson (D-GA), Whitehouse’s Judiciary counterpart in the House, launched a “Court Reform Now” task force in mid-May that advocates, among other things, expanding the Supreme Court, while Rep. Dan Goldman (D-NY), a House Judiciary Committee member, introduced a bill on Tuesday to create a Supreme Court ethics office.

“I think Congress can and should do more, but we’ve been encouraged by some of the steps taken over the last couple of weeks,” said Joe Van Wye, a senior legislative strategist at the Progressive Change Campaign Committee.

Van Wye appeared with Goldman outside the Supreme Court on Tuesday in a press conference announcing his bill.

Progressives even see a role for the Biden administration. Rep. Jamie Raskin (D-MD), the top Democrat on the Oversight Committee, penned an op-ed last week detailing how the Justice Department could petition the Supreme Court to force both Alito and Thomas to recuse themselves.

Thomas’s wife was associated with efforts to challenge the 2020 election results.

Durbin, following in their footsteps, could go nuclear. He took his most controversial action yet in November when he moved to subpoena conservative donor Harlan Crow and activist Leonard Leo, who took Thomas and Alito on luxury trips.

However, Republicans, who have panned the Alito controversy as “profoundly unserious,” have threatened to play hardball if Durbin pursues that path. They stormed out of the hearing room as Democrats voted on the subpoenas last year.

Sen. Lindsey Graham (R-SC), the ranking member of the Judiciary Committee, has even warned that Democrats’ actions could lead Republicans to abandon bipartisanship on approving judicial nominees.

Graham at times provides the lone Republican vote to otherwise party-line nominees.

The fact that Democrats could lose cooperation on one of their greatest accomplishments of the 118th Congress, appointing a near-record number of judges to the federal courts, is back of mind for Durbin’s defenders.

“He’s gotta exercise judgment about what we can do and what the price is, but his focus has rightly been on getting judges confirmed,” said Sen. Peter Welch (D-VT), who noted that Durbin only controls the Judiciary Committee by a single Democratic vote.

“He’s been very concerned about the ethical situation on the court, but the capacity of an 11-10 Judiciary Committee to take definitive action promptly is really compromised when you get universal opposition from our Republican colleagues who say even asking the question about the Thomas trips, or the Alito trips, is judicial interference,” Welch added.

Sen. Richard Blumenthal (D-CT), one of the more outspoken Judiciary Committee Democrats, agreed that his party needs to be “clear-eyed” about what can be accomplished in the context of Republican opposition, but he argued more could be done.

He suggested the committee conduct a formal investigation that culminates in a report.

For now, the Democrats are virtually unified in pressuring Roberts to act on his own.

The Supreme Court adopted a voluntary code of ethics in November following blistering pressure from the Democrats, but they call the step toothless.

“I think he is the linchpin here,” said Blumenthal, who suggested Roberts could punish Alito and Thomas by taking away their ability to write majority opinions if they fail to recuse themselves.

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The suggestion prompted an angry rebuke by Senate Minority Leader Mitch McConnell (R-KY), who said Blumenthal may be engaging in “unprofessional ethical conduct” as a member of the Supreme Court bar.

“This goes beyond the standard disgraceful bullying my Democratic colleagues have perfected,” McConnell said in a Wednesday floor speech. Blumenthal’s office did not respond to a request for comment by press time.