Senate Democrats can’t seem to help revealing their priorities. The rule of law isn’t one of them.
While the entire Democratic caucus agreed to shrug at the Department of Homeland Security nullifying federal immigration law, Senate majority whip and Judiciary Committee chairman Dick Durbin has decided to press forward with a subpoena for conservative legal activist Leonard Leo. The subpoena is part of a supposed investigation of Supreme Court ethics and seeks information from Leo — but not from similarly situated parties on the left — regarding gifts, accommodations, and other benefits to Supreme Court justices. It was issued on a party-line basis without allowing the participation of the committee’s Republicans. Durbin had stepped back from the brink of actually issuing a subpoena after Democrats voted to authorize one in November, but that was then; now it’s the eve of the spring rush of Supreme Court decisions and election-year fundraising. Priorities.
In theory, the subpoena sets up a showdown with Leo, who reiterated through his attorney that he considers it unlawful and will not comply. In practice, Durbin knows perfectly well that Democrats lack the votes to hold Leo in contempt, so the entire process is for show. Consider whom the show is for.
The first audience is Leo himself. Combined with the D.C. attorney general’s harassing investigation, the process here is the punishment, crafted to drain Leo’s attention and resources and deter his participation in the political process.
The second audience is the Supreme Court, the legitimacy of which remains under sustained assault from Democrats and their allies precisely because the Court has been standing up for the Constitution and the rule of written law. Witness the return of Christine Blasey Ford to the public eye. A Marquette Law School poll taken in late March showed public approval of the Court back up to 47 percent, which suggests diminishing returns on the effort to smear the justices. As the Court approaches decision time over the next two months in a battery of major cases, expect the hurdy-gurdy of “ethics” charges to turn up the volume in hopes of either cowing the justices or persuading voters to back radical proposals such as Court-packing.
The third audience is Democratic donors and their funded activist groups, who want to see a return on their investment in this campaign. Gabe Kaminsky of the Washington Examiner detailed the reach of one such donor, Stephen Silberstein, who has given millions to ProPublica for “investigative reporting” while bankrolling Citizens for Responsibility and Ethics in Washington (CREW), Public Citizen, Common Cause, the Democratic Senatorial Campaign Committee, and, more recently, Sheldon Whitehouse and a dozen of his colleagues. Whitehouse’s own priorities are also in view on the Budget Committee, where Chuck Grassley recently had to chide him for wasting committee time on poorly attended and repetitive hearings on topics unrelated to the budget — topics that conveniently dovetail with the consulting work of Whitehouse’s wife.
As has happened repeatedly in the past few years, Democrats busted norms, shut out Republican input, and disregarded any pretense of neutral interest in the law in order to issue their show subpoena. They cut short the hearings on the subpoena in November when Republicans put forward 180 amendments, many of them seeking to inquire into dark-money networks on the legal left. Leo’s attorney, David Rivkin, laid out in detail in October how the one-sided and retaliatory nature of the proposed Durbin subpoena — and the fact that it claims to seek information in order to craft “judicial ethics” legislation that has already been reported out of the committee — rendered it unlawful. Judiciary Committee Republicans say that it was also issued in violation of committee rules and is invalid. It would take 60 votes to hold Leo in contempt, and Democrats have given their Republican colleagues no reason to provide the necessary votes.
The one-sided nature of Durbin’s approach gives the lie to its claim to be a disinterested “ethics” investigation and must be understood in the context of the broader delegitimization and harassment campaign in which it is occurring. The D.C. attorney general, who briefly opened a face-saving inquiry into the dark-money superfund Arabella Advisors in order to provide a fig leaf of credibility to his probe of Leo, quietly closed the Arabella inquiry earlier this month.
Grassley and Lindsey Graham warn that these norm-breaking party-line tactics justify Republicans in slowing the committee’s work on election-year judicial nominations. Come 2025, there is a significant likelihood that the Senate will be back in Republican hands. Senate Democrats seem to have learned nothing from their own past overreaches. The tools they are forging against Leonard Leo and their Republican colleagues can, and likely will, be used against them and their friends and donors. As Mitch McConnell once famously warned, “you’ll regret this, and you may regret this a lot sooner than you think.”