6 Takeaways as Senate Democrats Target Clarence Thomas and Legitimacy of Supreme Court

Senate Democrats took aim at the Supreme Court broadly and Justice Clarence Thomas in particular during a hearing Tuesday, the one-year anniversary of the leak of the high court’s draft opinion overturning Roe v. Wade. 

Democrats on the Senate Judiciary Committee, seeking to impose new ethics rules on the Supreme Court, raised recent news reports about Thomas’ accepting vacations paid for by wealthy real estate developer and Republican donor Harlan Crow. 

Thomas, who wasn’t required to report the trips under ethics rules at the time, has said he consulted his colleagues on the court. 

Here are key takeaways from the committee hearing. 

1. Whitehouse: ‘Cover-Up in Plain View’ 

The Judiciary Committee is considering legislation proposed by Sen. Sheldon Whitehouse, D-R.I., that he calls the Supreme Court Ethics, Recusal, and Transparency Act. The bill would establish a process to investigate and enforce disclosure laws, impose a new code of conduct on the nine justices, and strengthen recusal standards for the justices. 

“Only Supreme Court justices refuse to allow their conduct to be investigated or reviewed,” said Whitehouse, a liberal firebrand known for conjuring conspiracy theories in his Senate floor speeches. “My bill would fix that.”

During his remarks, Whitehouse went beyond the vacations and travel accepted by Thomas from Crow. 

The Rhode Island Democrat also attacked Thomas’ wife, Virginia “Ginni” Thomas, over her December 2020 text messages to President Donald Trump’s White House chief of staff, Mark Meadows. then. In the messages to Meadows, she expressed belief in Trump’s view that the 2020 election was stolen through fraud. 

Whitehouse labeled these text messages as “insurrection activities,” and referred to the riot at the Capitol on Jan. 6, 2021, two weeks before Joe Biden was sworn in as president.  

“The key fact to determine whether Justice Thomas was bound by law to recuse himself from the first Jan. 6 committee case was what he knew about his wife’s insurrection activities and when he knew it,” Whitehouse said. “On that fact, the lawfulness of his initial recusal decision turns. Yet Thomas has never been officially asked that question.”

Whitehouse added: “It’s a coverup in plain view. The Supreme Court alone among federal courts is OK with that. My bill would fix that.” 

2. ‘Racist Vitriol of the Left’

Sen. Ted Cruz, R-Texas, pushed back, alleging racism in the persistent attacks on Thomas, who is black. 

During his remarks, Cruz displayed several magazine covers, one depicting Thomas as a slave shining the shoes of the late Justice Antonin Scalia and another magazine calling Thomas a “lawn jockey for the far right.”

“The left has repeatedly attacked Clarence Thomas with racism,” Cruz said, pointing to the “bigoted” magazines as demonstrating the “racist vitriol of the Left.”

Cruz pointed to a display of a recent article in The New Republic, a liberal magazine, under the headline “The Democrats Need to Destroy Clarence Thomas’s Reputation.” The headline below that read: “They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.”

“Senate Democrats and their lapdogs in the media are engaged in a twofold political campaign,” Cruz said, adding:

Number one, to delegitimize the Supreme Court of the United States because they are angry that there is a majority of constitutionalists on the court. But, number two, very directly, this is a political campaign designed to smear Justice Clarence Thomas. The reason is simple. The Left despises Clarence Thomas. And they do not despise him because he’s a conservative; the Left despises Clarence Thomas because he is a conservative African American.

3. ‘Extraordinary’ and Unanimous Rebuke of Durbin

Senate Judiciary Chairman Dick Durbin, D-Ill., had invited Chief Justice John Roberts to testify to his committee. Roberts declined last week. 

One day before the hearing, all nine Supreme Court justices—who rarely are unanimous on anything—signed on to a formal statement pushing back against the Senate’s effort to impose a new ethics standards, arguing that the effort could violate the Constitution’s separation of powers. 

“The justices … consult a wide variety of authorities to address specific ethical issues,” the nine justices said in the statement to the Senate Judiciary Committee.

Durbin didn’t take the unanimous rebuke well, calling it “an extraordinary document, [but] not in a good way.”

“Much of the document explains why justices feel they should not be treated the same as other federal judges when it comes to ethics,” the Illinois Democrat complained. 

The chairman was also upset about the justices’ separation-of- powers argument. 

“I’m more troubled by the suggestion that testifying to this committee would somehow infringe on the separation of powers or threaten judicial independence,” Durbin said. “In fact, answering legitimate questions from the people’s representatives is one of the checks and balances that helps preserve the separation of powers.” 

4. ‘Hallucinate Misconduct’ 

One witness at the hearing was former U.S. Attorney General Michael Mukasey, who scoffed at the allegations of misconduct against Thomas and, more recently, against Justice Neil Gorsuch in connection with a real estate deal. 

Both men acted within the parameters of longstanding practice among judges and other federal officials, Mukasey argued.

“If the public has the mistaken impression that the integrity of the court has been damaged, the fault for that lies with those that continue to level unfair criticism at the court and its justices,” said Mukasey, who was the third and final attorney general under President George W. Bush. 

“It’s impossible to escape the conclusion that the public is being asked to hallucinate misconduct so as to undermine the authority of justices who issue rulings with which the critics disagree,” he said. “That’s to undermine the authority of the rulings themselves.” 

Mukasey later pushed back on questions from Durbin suggesting that another branch of government could tell judges when to recuse themselves from a case:

The way the court functions internally is a matter to be left to the court, particularly on recusal issues; the law that applies to recusal issues across the board for federal courts applies to Supreme Court justices as well. When their impartiality might reasonably be called into question, they are obligated to recuse themselves. That applies to district judges, it applies to circuit judges, it applies to Supreme Court justices. That is a law of general application throughout the judiciary, when we are talking about the internal administration in dealing with their practices.

5. ‘Man With a Gun’

Sen. Lindsey Graham, R-S.C., the ranking member of the committee, reminded his colleagues that Senate Democratic Leader Chuck Schumer, D-N.Y., threatened two justices by name during a rally in front of the Supreme Court Building in 2020.

“I want to tell you, Gorsuch; I want to tell you, [Brett] Kavanaugh: You have released the whirlwind and you will pay the price,” Schumer said at the rally. “You won’t know what hit you if you go forward with these awful decisions.” 

Graham referenced Schumer’s remark about “awful decisions.”

“The majority leader of the United States Senate went before the court, literally out in front of it, and threatened two judges,” Graham said, soon adding: “So, we can talk about ethics, and that’s great. But we are also going to talk about a concentrated effort by the Left to delegitimize this court and to cherry-pick examples to make a point.”

Sen. John Kennedy, R-La., went on to detail fallout from Schumer’s rhetoric: 

‘You have released a whirlwind,’ the Democratic leader said. And since, protesters took to the streets, not outside Congress, not outside the court, but outside the homes of Justice Roberts, Justice Kavanaugh, Justice Thomas, and Justice [Amy Coney] Barrett. Federal law prohibits this intimidation. But the Biden Justice Department allowed it. 

‘You will pay the price,’ the Democratic leader said. In that spirit, protesters publicized the location of the school that Justice Barrett’s children attend.

Kennedy drew a parallel between the escalation of such actions against conservative justices to a California man’s assassination plot against Kavanaugh.

“‘You won’t know what hit you,’ the Democratic leader said. A man with a gun, ammunition, knife, pepper spray, and zip ties went to a justice’s home to assassinate him,” Kennedy said.  “Actually, his stated goal was to murder three justices.”

Kennedy said Democrats are angry that they aren’t winning every fight that goes to the Supreme Court. 

“I’ve been disappointed by Supreme Court opinions, too. But my Democratic colleagues should fill out a hurt feelings report and move on, for the sake of the Constitution,” Kennedy said. 

The Louisiana Republican added: “Today’s hearing is an excuse to sling more mud at an institution some Democrats don’t like because they can’t control it.”

6. ‘Ginsburg Was Given $1 Million Award’

Graham later noted the news media didn’t report on travel to Italy by Justice Sonia Sotomayor and the late Justice Ruth Bader Ginsburg that was paid for by New York University.  

“The game is being played differently, and now we are at a point where this court is under siege in multiple ways,” Graham said. 

The South Carolina Republican detailed Ginsburg’s career in order to contrast it with the oversight of conservative justices.

“In 1998, Justice Ginsburg donated a signed copy of her decision in the VMI case, where [the Virginia Military Institute] had to admit women to a state school, and it was auctioned off at a fundraiser supporting the National Organization of Women’s legal defense fund,” Graham said.

He then mentioned Justice Samuel Alito and his majority opinion last year in Dobbs v. Jackson Women’s Health Organization, in which a majority of the high court overturned Roe v. Wade and returned the issue of abortion to the states.

“Do you all agree that if Justice Alito signed the Dobbs decision and gave it to the Susan B. Anthony pro-life organization to raise money, all hell would break loose in this country?” Graham asked another witness. 

Amanda Frost, a research professor of law at the University of Virginia, responded: “Yes, and I certainly agree that would be a problem. In fact, that’s one of the reasons I think Congress needs to play an active role today.”

Graham then asked, referring to the Ginsburg incident: “Why didn’t all hell break loose in 1998?” 

Frost: “I’m not sure what the reaction was.”

Graham: “I think we all know the answer to that.”

Ginsburg was “one of the greatest people to serve on the court,” Graham said, but she also received an award from the Woman’s National Democratic Club. 

“Can you imagine what would happen if Justice Roberts received an award from a Republican women’s club?” Graham asked. “I think we might read more about it.”

He had more examples, including one involving Berggruen Institute, a Los Angeles-based think tank.

“Justice Ginsburg was given a $1 million award by the Berggruen Institute for major achievement in advancing ideas that shape the world,” Graham said. “She didn’t get the money personally. But they gave her $1 million to give to other people. Does anybody have a problem with that? Does everybody have a problem with that?”

After a moment in which there was no response, he said: “I’m going to assume silence means yes.”

“The point we are trying to make is that this effort to come after Justice Thomas is organized by the Left,” Graham said. “I think this moment where we could find common ground is being hijacked.”

Mary Margaret Olohan contributed to this report.

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