Senator Durbin Invites CJ Roberts "Or Another Justice Whom [He] Designate[s]" To Testify Before Senate Judiciary Committee

Send Justice Breyer!

In recent days, there has been some talk about whether the Senate Judiciary Committee would invite Justice Thomas to testify, or potentially issue a subpoena. I spoke to Roll Call about the issue. To my knowledge, Congress has only issued a subpoena to a Justice once: the House Un-American Activities subpoenaed Justice Cark, who had previously served as AG. Clark refused to honor the subpoena, and Congress did not hold him in contempt.

Senator Durbin, the Chair of the Senate Judiciary Committee, did not follow that path. Instead he sent a letter to Chief Justice Roberts. It begins:

I invite you, or another Justice whom you designate, to appear before the Senate Judiciary Committee on May 2, 2023, at 10:00 a.m. . . .  to testify at a public hearing regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules."

I'm sure the Chief Justice wants to appear before the Senate as much as he enjoys reading my blog posts. But there is an easy work around: appoint Justice Breyer as a designate. He looooves the Senate. He loves talking about ethics. And he could address these issues from the removed vantage point of a senior associate justice, who no longer decides cases.

Comments

[Dilan Esper]

This is a non-terrible idea.

[captcrisis]

Yes. Give credit where it’s due.

[ReaderY]

From you, that’s really high praise!

[bernard11]

It looks like a copout to me.

Breyer’s opinions may be interesting, but they will carry zero weight, and he can hardly commit the court to doing anything.

[Bubba Jones]

“Cop out “? It’s a senate hearing.

[Zarniwoop]

agree, it’s not half-bad.

[Kazinski]

Depends on how it’s handled.

Roberts should designate Breyer to testify.

And Breyer should reiterate his comments he made earlier this week in a statement, and then end his testimony:
“As far as I’m concerned, I sat next to him on the bench for 28 years. I like him. He’s a friend of mine. I’ve never seen him do anything underhanded or say anything underhanded,” Breyer, who retired last year, said from a conference in Boston. “My personal point of view is he’s a man of integrity.”

Doesn’t set any precedent, tells the committee what they’d likely hear from any other justice and would provide no satisfaction that would induce them to try that tactic again.

[Martinned]

Is Breyer a “Justice” for the purposes of this letter?

[Rossami]

Yes. Specifically, he is a “Senior Associate Justice”.

[Martinned]

But he’s not like a CoA judge on senior status who can still decide cases. Breyer can decide what to have for lunch, that’s about it. So I would argue that a reasonable interpretation of Durbin’s letter would read “Justice” as referring to the eight active associate justices.

[Bubba Jones]

When the text is ambiguous it falls to the courts to interpret.

[post hoc ergo propter hoc]

But he’s not like a CoA judge on senior status who can still decide cases.

yes, he is. souter sits on the 1st cir by designation when he wants to and writes an opinion every 6 months or so. it’s part of being a retired justice. breyer can sit on the 9th (? iirc his brother is district judge in 9th but not sure if both live there) whenever he wants.

edit souter one from 2013, but he has more recent ones, too, iirc a RI one about red flag laws that almost went to scotus. https://law.justia.com/cases/federal/appellate-courts/ca1/12-2488/12-2488-2013-03-14.html

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme*Court of the United States, sitting by designation.

[Noscitur a sociis]

Senior district and circuit judges can decide district and circuit cases (i.e. cases from the courts they sat on). Breyer can’t decide Supreme Court cases, which is what I take to be Martinned’s point.

[Martinned]

Indeed. Which makes him an odd person to speak for the Supreme Court.

[Larvell Blanks]

Justice Breyer?

[Rev. Arthur L. Kirkland]

Why would Breyer agree to excuse one of the right-wingers from this work? The right-wingers precipitated the problem; they can deal with it.

[Joe_dallas]

Double standard – pperhaps

Ask durbin when he is going to sent letter to Garland regarding the investigation of Hunter

[Frank Drackman]

I forget, is Dick Durbin the Dick in the Senate who claimed to serve in the Marine Corpse in Veet/nam? Or is it another Dick in the Senate? Boy the Senates got a bunch of Dicks in it. Actually, after further review only 2 (named) Dicks, and an An(g)us,
2 Dicks and an An(g)us, you know the (Very Wrong) “Rev” Sandusky’s gonna get in on this one,

Frank

[John F. Carr]

Send Breyer. The hearing won’t turn into a discussion of current cases.

[Glaucomatose]

“Blackman said that if the Senate takes actions investigating Thomas or with the intent of establishing evidence to impeach him, it would create a “DEFCON one” standoff with the judiciary.”

Um, why? Supreme Court justices, like any other officers of the United States, are subject to impeachment, so they are subject to investigation of possible impeachable offenses. Obviously, no federal officer likes to be impeached, but that’s part of the way the system was designed. If Congress can’t investigate a federal officer for possible impeachable offenses, then why even have an impeachment power?

[Longtobefree]

If they couldn’t impeach Earl Warren, they can’t impeach anyone.
(including a ham sandwich)

[John F. Carr]

An impeachment that smells like payback for policy differences is unlike the impeachment of Walter Nixon, who refused to resign after a felony conviction.

[Glaucomatose]

Sure: a bad impeachment is a bad impeachment. That’s part of the reason why it’s so difficult to remove someone from office upon impeachment.

But Republicans impeaching Clinton for lying when asked under oath about a BJ smelled like payback to Democrats, and Democrats impeaching Trump for using taxpayer dollars to try to get Ukraine to investigate his political opponent smelled like payment to Republicans, and neither one was a crisis in the separation of powers. This is just how our politics, and our government, work.

[M L]

Bring on the hi-tech lynching.

[Joe_dallas]

As NPR put the trump impeachment – a week of non stop coverage about the impropriety of asking for investigation of political opponent but nary a mention of the corruption of said political opponent.

[MatthewSlyfield]

For one thing, the Senate can’t initiate an impeachment investigation. The Senate tries the impeachment. The investigation and issuing of the articles of impeachment happen in the House of Representatives.

[Longtobefree]

Question of the day: If “ethical rules” require revision, are they “ethical”?

[Moderation4ever]

Having Roberts testify is silly and pointless. There is little he can do as a first among equals. I would suggest that Roberts should instead form a group of retired judges and justices, include Breyer and Kennedy and maybe some retired appellate court judges. Roberts should charge them with coming up with an ethics code for justices. He should then take that to his peers on SCOTUS for a vote. If accepted it should then be made public.

[Dilan Esper]

Also a non-terrible idea.

[MaddogEngineer]

Agree, this is another non-terrible idea. I would strongly support such an effort.

But I also have to note, this is not an outcome which Dick Durbin was seeking. His invitation was in bad faith, a political stunt designed to further the anti-Thomas narrative, by putting the chief (or others colleagues of Thomas) on the spot. Sometimes good does come out of bad intentions. It returns us again to the question: who exactly is politicizing the Court?