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What Is the Senate Judiciary Committee Going to Do About Clarence Thomas, and When?

Mazie Hirono says there will be a hearing on the Supreme Court not following a code of ethics. Mmmm, OK. But what else, Democrats?

Clarence Thomas
Eric Lee/Bloomberg/Getty Images
Supreme Court Justice Clarence Thomas

Connecticut Democratic Senator Richard Blumenthal didn’t waffle Tuesday when asked by reporters if the Senate Judiciary Committee he sits on should subpoena Supreme Court Justice Clarence Thomas.

“I think he should voluntarily appear; and if not, I think we should subpoena him and others like Harlan Crow,” Blumenthal said of Thomas after bombshell reports in ProPublica revealed decades of gifts Thomas has received from the GOP megadonor. “I think subpoenas should be on the table for anyone with information, including members of the United States Supreme Court,” he added.

The Senate was away on recess during the two weeks since Judiciary Committee Chairman Dick Durbin promised action after the first story broke on April 6. Senators returned to Capitol Hill on Monday, when the Illinois Democrat rapidly convened a meeting of committee Democrats where the cartoonishly corrupt Supreme Court justice was discussed.

“I would leave it to the chairman to announce our course of action,” said Chris Coons, a Delaware Democrat on the committee. Coons was upstaged moments later in the Senate tunnels by Mazie Hirono, who was more committal. “We are going to have a hearing on the Supreme Court not having a code of ethics,” the Hawaii Democrat revealed to The New Republic. Hirono wouldn’t say if Thomas would be subpoenaed to testify. “I am not sure whether that is in the offing,” she said.

The problem with a subpoena is that it would require a majority vote of the committee’s 21 members. With California Democrat Dianne Feinstein out with shingles, the committee is evenly split with 10 Democrats and 10 Republicans. The Republicans obviously will not support a subpoena of Thomas, so Durbin would need a Republican vote, which would be hard to come by from the likes of Ted Cruz, Tom Cotton, and Marsha Blackburn. “It is more challenging,” said Durbin of Feinstein’s absence.

Senator Sheldon Whitehouse didn’t rule out a subpoena but told The New Republic the question was premature. “I think that if you’re doing an investigation or making an inquiry, you build the case first. You don’t just grab your big witness and not have prepared. That’s just like, super bad trial practice,” laughed the Rhode Island Democrat. “First, you build your case.”

Blumenthal said the committee should subpoena Crow, the Texas real estate developer at the center of the latest scandal involving Thomas. “The American people deserve all the facts surrounding Justice Thomas’s blatant violation of law in failing to disclose not only the gifts and travel that he received but also the money payments from Harlan Crow,” said Blumenthal.

He added that the Senate shouldn’t be the only entity looking into Thomas, citing the federal body created in the 1920s to establish guidelines for the federal courts. “The Judicial Conference ought to be conducting right now a thorough, penetrating investigation of Justice Thomas’s dealings with Harlan Crow and others, his failure to disclose, and what other benefits he may have received,” Blumenthal continued. “The Judicial Conference has a responsibility to rid itself of wrongdoers, and if it fails to do it, the United States Department of Justice should do it.”

House progressives echoed Blumenthal’s call to hold Thomas accountable. Congresswoman Alexandria Ocasio-Cortez said that the Senate should subpoena Thomas and that the House of Representatives should impeach the controversial justice. “The expectation that the Supreme Court investigate itself is a farce,” said Ocasio-Cortez. “It is a fundamental conflict of interest. The chief justice is not capable of investigating his own institution.”

As evidence, Ocasio-Cortez pointed to the investigation Chief Justice Roberts led into the leaked abortion rights decision last May. Roberts’s investigation left much to be desired, with the ensuing 20-page report doing little to increase the American public’s confidence in the court, which polling shows is at a historic low.

Whitehouse has worked with the courts to establish some new baselines for disclosures by federal judges that, in theory, should now apply to Supreme Court justices. With public confidence in the high court dropping, Blumenthal and Ocasio-Cortez see an opportunity for Democrats to stand up to wanton corruption in government, a move that is sure to be popular with voters the party can win in next year’s election.

“What Justice Thomas has done to the credibility and trust of the Supreme Court I hope can be repaired,” Blumenthal told reporters on Tuesday. “Justice Thomas is way too important for us to pull punches in any way.”

A Supreme Court justice who is supposed to embody the law now stands accused of breaking it. Senate Democrats can show voters they are willing to fight by lining up behind Blumenthal or hide behind the usual platitudes from leadership about process and decorum on Capitol Hill.