WASHINGTON, DC — Democrats on the Senate Judiciary Committee are continuing their efforts at “reverse court-packing,” announcing they will subpoena conservative leader Leonard Leo and others despite Leo’s attorney’s letter showing that Senate Democrats have no constitutional authority to punish private citizens or push legislation that would make Congress superior to the Supreme Court.
Chairman Dick Durbin (D-IL) and Sen. Sheldon Whitehouse (D-RI) continue Senate Democrats’ crusade at reverse-court packing. Having failed to advance legislation that would expand the number of Supreme Court justices to allow for the current Democrat president and Democrat Senate majority to stack the Supreme Court with several judicial liberals, they are pushing a so-called “ethics” bill, S. 359 — the Supreme Court Ethics, Recusal, and Transparency (“SCERT”) Act — to disqualify conservative Supreme Court justices from key cases to help ensure liberal court decisions.
As part of this cynical strategy to disrupt the Supreme Court as a branch of government that is co-equal with Congress and make the court inferior to congressional majorities, Durbin, Whitehouse, and other Senate Democrats have targeted, first and foremost, Justice Clarence Thomas with baseless smears as the most outspoken originalist on the court, and secondly, Justice Samuel Alito as the second-most outspoken originalist with similarly unfounded attacks.
One common tie between Thomas and Alito is their longtime friendship with Leo, co-chairman of the Federalist Society, a nonprofit organization dedicated to advancing originalism: the judicial philosophy that the words of the U.S. Constitution should be interpreted according to the original public meaning of those words when the American people enshrined them in the Supreme Law of the Land.
Not able to subpoena Thomas or Alito directly, Durbin and Whitehouse have been demanding records from Leo regarding vacation travel and conferences that Leo and others have gone on with one of the justices.
Leo’s attorney, David Rivkin, has responded with detailed legal letters explaining why these demands are beyond the legal authority of a Senate committee. The most recent one is dated October 19 and begins:
We have put forward clear and detailed reasons why the Committee’s inquiry is a form of political retaliation in violation of the First Amendment and the Equal Protection component of the Due Process Clause. But, for the most part, the October 5 Letter ignores these points, and, since our last correspondence, the Committee has only expanded the retaliatory campaign it is mounting against Mr. Leo. We also have explained at length why the Supreme Court ethics legislation the Committee has written would violate the separation of powers if enacted, and thus cannot legitimate the Committee’s inquiry. But the October 5 Letter offers virtually nothing in the way of rebuttal, and the Committee continues to press forward with its unconstitutional bill. Across the board, the October 5 Letter tries to shield the Committee’s inquiry from our objections by simply acting as though they do not exist. Because we continue to believe that the Committee is not entitled to the personal information it seeks, and because the Committee has provided us with no arguments to the contrary, we respectfully decline to provide such information today.
Highlighting the partisan inequality of Senate Democrats’ investigation, Rivkin reasons:
In recent years, Justices Stephen Breyer, Ruth Bader Ginsburg, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor have disclosed hundreds of trips and events involving progressive legal and policy organizations, elite law schools, bar associations, and other legal membership groups. These institutions and organizations are almost exclusively governed and populated by the Left, and the attendees at their events are predominantly influential liberals. If the Committee were actually pursuing the inquiry it claims, these frequent trips and events would be of at least as much interest to the Committee as a fishing excursion Mr. Leo took with Justice Alito 15 years ago.
Even if Democrats were treating conservative Republicans and liberal Democrats equally, the Senate Judiciary Committee would still not have the power to demand these documents or testimony. Moreover, the SCERT bill has already been sent from the committee to the full Senate, so the committee’s work is done, regardless.
Quoting Supreme Court cases going back more than 140 years, the letter explains:
Critically, the Senate does not “possess the general power of making inquiry into the private affairs of the citizen.” That limitation on the Senate’s investigative powers is especially important where the inquiry into private matters is made simply “to expose for the sake of exposure,” to harass and humiliate. Where the “predominant result” of a congressional investigation “can only be an invasion of the private rights of individuals,” the investigation cannot proceed for lack of a legislative purpose.
Here, the unnecessary disclosure of details about Mr. Leo’s private life is not just the predominant intended result of the Committee’s inquiry, it is likely the only result. Any information Mr. Leo might share with the Committee could not possibly aid in the drafting of a bill that has already been reported out of Committee.
Instead, as we have stressed, the Committee’s inquiry actually appears to be undertaken for the unfortunate and improper purposes of scoring partisan points against a detested political opponent and vilifying him in the court of public opinion. Dredging up content for inflammatory Tweets and fundraising appeals that are circulated far and wide outside the Senate chamber is not a valid legislative purpose.
After pages of additional legal argument and historical precedent, the letter concludes:
Speaking in another context, then-Attorney General Robert Jackson said that the “greatest danger of abuse” of the government’s investigative power comes when government officials “pick the man” “whom they dislike or desire to embarrass” and “then search the law books, or put investigators to work, to pin some offense on him.” The Committee Democrats have already made up their minds about Mr. Leo. In Committee Democrats’ imagining, Mr. Leo is a “right-wing” “fixer” who sits atop a conspiracy to capture the Supreme Court and poses a “dire threat to American democracy,” and they appear determined to use the Committee’s investigative tools in an attempt to uncover evidence to substantiate those noxious beliefs, or at least to impose immense and costly burdens on Mr. Leo in order to punish him for his disfavored views. It is not our responsibility to aid in that partisan effort, and we choose not to do so today.
If Durbin and Whitehouse persist in their efforts and no compromise can be reached, the legality of this subpoena is likely to end up in federal court.
Ken Klukowski is a Breitbart News senior legal contributor.