Dick Durbin needs to step up and do his damn job
Believe it or not, Durbin can learn something from Jim Jordan.
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The Republican-controlled House Judiciary Committee on Tuesday held a lengthy oversight hearing to badger Attorney General Merrick Garland and push the GOP’s false narrative about President Biden weaponizing the DOJ against Donald Trump.
Even though the hearing was conducted in obvious bad faith, it was in some ways successful, at least in the limited sense that Republicans grabbed a lot of headlines and forced Garland to spend a day on the defensive. Virtually every major news outlet it extensive coverage, ranging from the New York Times to MSNBC to Newsmax.
The hearing meant that for at least a day, everyone talked about whether the DOJ is treating Trump unfairly, rather than about, say, whether Trump should step aside from the GOP presidential nomination given his felony convictions, or whether Supreme Court Justice Sam Alito should recuse himself after an insurrectionist flag was flown over his house.
Congressional oversight hearings give Congress a chance to focus the national conversation on what members want to talk about. It gives them a chance to pressure executive branch officials to adopt congressional priorities, or to explain and potentially embarrass themselves.
In contrast, Democrats in the Senate have been bizarrely reluctant to use hearings to advance their agenda. Dick Durbin, chair of the Senate Judiciary Committee, has refused to hold hearings to investigate egregious evidence of Supreme Court Justice Clarence Thomas receiving gifts from far right billionaires, or to demand answers from Alito about his apparent embrace of the insurrection. Instead, he’s posting weak statements on social media meekly calling for right-wing members of the Court to do a better job policing themselves.
Republicans like Jim Jordan are ignorant about a lot of things. But they understand that the gavel is power, and they are not afraid to use it. Senate Democrats need to get over their qualms and, in this instance, behave more like their rivals across the aisle.
The GOP uses hearings to exert pressure
Hearings drive narratives. But they can do more than that. Congress has real power to pressure government officials, and hearings are a way to demonstrate and exercise that power.
In the case of the Garland hearing, Republicans had a clear goal; they want to force him to release audio tapes from Special Counsel Robert Hur’s interviews with President Biden. Hur was investigating whether Biden had improperly handled classified documents.
Hur, a long-time conservative and a Trump appointee, determined that there was no case against Biden. But he also denigrated Biden’s intelligence and memory in a misleading summary designed to grab headlines. Republican and mainstream outlets jumped on the summary to reinforce the (false) idea that Biden is mentally unfit for the presidency.
Republicans would love to reup the Hur story again and again, and they have a plan for doing so. The Justice Department released a transcript of Biden’s testimony with Hur. But Republicans have subpoenaed the recordings and have threatened to hold Garland in contempt if he does not comply — a charge that if upheld can result in jail time.
During Tuesday’s hearing, Rep. Andy Biggs was forthright in explaining why Republicans subpoenaed the tapes; he said he wanted to hear if Biden had stuttered in answering questions. (Watch below.)
Biden has had to deal with a stutter throughout his life; as Democrats on the committee pointed out, the GOP wants audio recordings so that they can falsely claim that Biden’s speech impediment is evidence of cognitive decline.
Garland said he would not be “intimidated” and has asserted executive privilege, arguing that if the tapes were released, it would set a precedent which would make other officials unwilling to cooperate with investigations and sit for taped interviews. Or in other words, treating criminal prosecutions as partisan witch hunts can undermine the Justice Department’s ability to investigate crimes.
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That seems like a pretty reasonable argument. But as Garland is no doubt aware, courts can be unpredictable, and defending yourself from contempt charges can be time consuming, stressful, and potentially embarrassing. House Republicans are using their subpoena power to pressure Garland to do what they want. If the case does go to court, they’re ensuring there will be more headlines about Biden and Hur during the election.
Either way, Republicans are using their power in the House to hold hearings, subpoena materials, and advance their agenda of humiliating the Biden administration and boosting Trump.
Senate Democrats need to get a clue
Democrats have of course decried the House hearings on Garland as nakedly partisan nonsense.
Garland himself pushed back forcefully against (baseless) Republican claims that the Justice Department had somehow been behind the successful New York state prosecution of Trump on charges of falsifying business records related to hush money payments. Garland described the claim the Justice Department was involved as a “conspiracy theory” and an “attack on the judicial process itself.” (Watch below.)
Forceful rejection of Republican lies is a good thing. But there are limits to playing defense. And Democrats have good reason to launch their own judicial investigations not of the Biden Justice Department, but of the Supreme Court.
This year, after an extensive investigation, ProPublica determined that Clarence Thomas has for 20 years received lavish gifts, including vacations and loans, from billionaire Republican donors like Harlan Crow. More recently, the New York Times reported that in the days after the January 6 insurrection, an upside-down flag — a symbol of support for Trump’s coup attempt — was raised over the home of Justice Samuel Alito.
Thomas and Alito have shown clear evidence of corruption and/or bias. The Senate Judiciary Committee is supposed to provide oversight for the judiciary and monitor ethical standards and practices. This seems like a great opportunity to hold hearings on the far right Court and demand accountability.
Or so you’d think. Durbin has been weirdly but consistently timid. He has not called Thomas to appear before the Judiciary Committee, claiming that Thomas would just refuse to show up.
In the case of Alito, Durbin has called on him to recuse himself from cases involving Trump and the 2020 election — including the Court’s current case on whether Trump has immunity from prosecution from his role in January 6. But Alito has refused to recuse, and Chief Justice John Roberts refuses to meet with Durbin and his committee to discuss the matter. The Court has also failed to adopt even the minimal toothless, unenforceable ethics standards that Durbin has been haplessly pushing for years.
So, if Alito and Roberts say they won’t cooperate, is that that?
Of course not. Congress has a lot of power. Durbin could subpoena Alito and Thomas and threaten to hold them in contempt if they don’t appear at hearings, just as the House has threatened to hold Garland in contempt. The spectacle of Supreme Court justices lawlessly rejecting subpoenas to even talk to Congress would in itself be a huge story. It would generate media headlines and bringing pressure to bear on Thomas and Alito to recuse themselves from cases involving Trump.
The Senate Judiciary Committee could also subpoena others involved in undermining the integrity of the court. The committee has actually approved subpoenas for Harlan Crow and Leonard Leo, key figures in the Thomas bribery scandal. But Durbin has refused to issue those subpoenas, for unclear reasons.
Similarly, the Senate Judiciary Committee could hold hearings on the insurrectionist flags flying outside Alito’s home (yes, there was more than one). Alito claims his wife was responsible for the flags, and he himself had nothing to do with them. The committee could call Alito’s wife, Martha Ann, and ask her to explain why she flew the flag and explain the justice’s involvement.
Alito claimed his wife raised the flag in response to a dispute with neighbors; the committee could summon the neighbors and ask them to explain the circumstances of the dispute. They could call Alito cronies and investigate his ties to the far right. And again, they have the lawful power to subpoena Alito himself, and to pursue a contempt charge if he refuses to appear.
Why won’t Durbin act?
The advantages of using the power of the Senate, including hearings and subpoenas, is pretty clear. Alito and Thomas have shown themselves to be corrupt, biased, and arrogant. Despite massive conflicts of interest, they refuse to recuse themselves, much less resign. That undermines the integrity of the Court, undermines the rule of law, and threatens the Constitution and democracy itself.
If there was ever a case for oversight, this is it. And oversight can be effective. Focusing the media on a huge scandal can lead to more reporting, more revelations, more public pressure, and political gain. The threat of subpoenas, and the exposure of hearings, can force justices to look for ways to defuse criticism — and recusing from cases where they are compromised is a pretty obvious step.
Durbin’s sad tactic of just begging the justices to do better has not worked. Why won’t he use the tools he has? It’s unclear; his explanations (like arguing Thomas wouldn’t show up anyway) don’t make a lot of sense. Maybe he’s conflict averse. Maybe he’s leery of undermining the legitimacy of the court. Maybe he’s afraid of GOP backlash.
Whatever his reasons, though, the result is the same. The GOP uses its control of the gavel in the House to boost their narratives and directly exert pressure in an effort to subvert the justice system. Democrats, meanwhile, let their gavel in the Senate sit there, refusing to use it to focus national attention, and decline to even use it to protect the integrity of the judiciary or Constitution.
Democratic voters expect their representatives in Congress to fight for them and against Trumpism. One of the most frightening dangers the country currently faces is an unaccountable Supreme Court majority that’s willing to shred precedent and the Constitution in its pursuit of a far right agenda. Alito and Thomas have demonstrated egregious corruption, bias, and disrespect for the Constitution and American people. Democrats have a responsibility to do everything in their power to hold the Court accountable.
Dick Durbin is failing in that responsibility. Jim Jordan is horrible in just about every way, but he’s willing to use the tools he’s got to push for the (evil) policy outcomes he prefers. Democrats in Congress should be every bit as willing to use the resources they have to defend democracy. If they aren’t, what are they even there for?
That’s it for today
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“Democrats in Congress should be every bit as willing to use the resources they have to defend democracy. If they aren’t, what are they even there for?” Excellent question, so tired of Dem inaction and excuses.
I wonder if part of the reticent behavior on the part of Durban is generational response to how politics is supposed to work. Durban is drawing on his years in politics and, possibly, cannot realize how the rules of the game have changed. Biden struggles with this also, but he's getting better, especially when Dark Brandon shows up. I'm 72 and retired and I believe that people need to retire to create opportunities for younger people, as long as they are financially capable of retiring. I can't imagine AOC or Jasmine Crockett letting Thomas and Alito off the hook because their experiences with dealing with Republicans are far different, and because they have been personally attacked by them. I believe we need some generational changes in Congress. Definitely vote Blue, but in many cases, vote for younger Blues.