The recent news stories attempting to smear Justice Clarence Thomas with innuendo had already been exposed as baseless and journalistically incompetent. But the chairman and other Judiciary Democrats could not help themselves. They repeated the Thomas attack. That opened the door for Republican members, starting with Ranking Member Lindsey Graham, who called out the hearing as “a concentrated effort by the Left to delegitimize this Court and to cherry pick examples to make a point.”
That meant revisiting the Left’s attacks dating back three decades, when they embarked on the “high-tech lynching” of Thomas during his 1991 nomination hearing, over which then-Judiciary Chairman Joe Biden presided. Another senator’s name figured prominently in the hearing—current Majority Leader Chuck Schumer, who three years ago notoriously stood in front of the Court and threatened, “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
That thuggery was followed by a dark-money-funded push to pack the Court if it did not rule as its left-wing critics desired—and, after Biden’s inauguration, by Demand Justice’s sordid but successful campaign to pressure Justice Stephen Breyer into retiring from the Court.
Just as compelling was the double standard on display as Republican members listed examples of recent liberal justices omitted in the media’s selective focus on Thomas, even though they raised starker ethical questions than the most senior sitting associate justice: Ruth Bader Ginsburg, Breyer, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
Discussion of Ginsburg, a liberal icon, evoked particularly memorable reactions when Graham asked about examples of ethical questions she raised: In 1998, the National Organization for Women auctioned off a signed copy of Ginsburg’s opinion for the Court in United States v. Virginia, which struck down male-only admissions to the Virginia Military Institute. “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?” One of the Democrats’ expert witnesses on the hearing panel, Amanda Frost, conceded that would be a problem, but the panelists were silent on why the 1998 auction was not reported.
Graham also noted Ginsburg’s receipt of an award from the National Democratic Women’s Club and asked what the reaction would be if Chief Justice John Roberts received an award from a Republican women’s club. Or how about her receipt of the Berggruen Prize for Philosophy and Culture, which entailed a $1 million award for her to allocate among her preferred recipients?
“Does anybody have a problem with that? Does everybody have a problem with that?” Graham continued. From the panelists, crickets. “Well,” the ranking member continued, “I’m gonna assume silence means yes.” (By the way, Ginsburg not only got a pass for the latter award in the press, but upon her death in 2020, CNN ran a reverent article, “How to honor RBG by supporting her favorite causes” and listed some of her Berggruen Prize money recipients.) And frankly these examples only scratch the surface; the senators could have gotten into additional conflict of interest questions that arose during her tenure.
The Democrats’ panel witnesses undermined Durbin’s agenda beyond their awkward silences. Kedric Payne of the Campaign Legal Center denied retweeting that “John Roberts is a disgrace,” only to have to correct himself later in the hearing. Jeremy Fogel, a retired district court judge and former director of the Federal Judicial Center, opened with the assertion that “I am not here to question or criticize the conduct of any justice.” When Senator John Kennedy posed characteristically blunt questions about whether the ACLU was trying to bribe Justice Sotomayor by funding her travel to San Juan or what the witness thought about the “unstated premise” of bribery in recent articles about Thomas and Neil Gorsuch—yet another victim of journalistic malpractice—Fogel demurred. He said, “I’m not accusing anybody of being bribed” and tried to distance himself from either side of what he called a “very intense” and “hyperpartisan” “political conflict” where “both sides have things to say.”
However much it backfired, the hearing was yet another thuggish power play—“an excuse to sling more mud” at the Court, Kennedy said, because Democrats “can’t control it.” Judiciary Democrats demonstrated their lack of self-awareness by holding the hearing on the one-year anniversary of the leak of Justice Alito’s draft opinion for the Court in Dobbs. Note the contrast between the media’s manufactured ethics outrage, directed toward justices they disagree with, and their collective shrug about the enormous breach of trust involved in the leak—one that resulted in a journalism award for the Politico reporters who published the draft opinion.
Meanwhile, as Alito recently told the Wall Street Journal and Senators Mike Lee and Ted Cruz noted, the leak made justices who were believed to be in the majority “targets of assassination. . . . It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.” Justice Brett Kavanaugh was the target of an assassination attempt. Yet a number of Senate Democrats have been threatening to cut security funding for the justices unless they adopt the ethics code they seek.
As Graham summarized, “This is not about making the Court better. This is about destroying a conservative Court. It will not work.” Thanks to Republican committee members, the hearing proved a tactical misfire by Democrats. Durbin found himself on the defensive, repeatedly citing his previous concern about the Court’s ethical standards in 2011–2012 and pleading that today’s hearing was not about partisanship or disapproval of “the agenda of the Court today.” The latter is patently untrue on its face, and even the timeline of the previous focus on Supreme Court ethics came at a politically hypersensitive time—when Democrats feared that the Court would strike down Obamacare and embarked on a campaign to change the Court’s direction by threats.
Durbin and his fellow Judiciary Committee Democrats would have ended the day with more of their credibility intact if they had avoided this partisan show altogether.