Dick Durbin defers to Clarence Thomas on ethics oversight

“Why not invite Justice Thomas?”

Senate Judiciary Committee Chair Dick Durbin, D-Ill., gave a curious response to that simple question on Sunday from NBC’s Chuck Todd on “Meet the Press.” The question followed recent reports of Supreme Court Justice Clarence Thomas’ undisclosed financial ties to a GOP billionaire, which prompted Durbin to announce hearings into the high court’s low ethical standards.

Durbin told Todd that he assumed Thomas would ignore the committee’s invitation, so he didn’t extend one. Yes, really, you can watch him say that here:

Instead of explaining why he thought Thomas would reject an invitation, or why that hypothetical rejection should block an invitation before one is extended, the Democratic senator deployed a non sequitur, claiming that it would be better for Chief Justice John Roberts to testify.

It’s all well and good for Durbin to reach out to Roberts. But in addition to suffering from the clear logical flaw that nothing stops multiple justices from testifying, focusing on Roberts at the exclusion of Thomas misses the point.

The sad exchange underscores why Supreme Court justices act like there isn’t a real check on them.

Roberts is the chief, sure, and he has administrative responsibilities that other justices don’t. But it’s not like he’s in charge of his fellow justices’ behavior, exactly. At any rate, Roberts wouldn’t likely know the answers to the specific questions raised by Thomas’ relationship with that billionaire, Harlan Crow, that are still unanswered following ProPublica’s bombshell reporting on Crow’s gifts that Thomas didn’t disclose, in potential violation of a post-Watergate law.

To take just one example among many unanswered questions, Thomas said in a statement after ProPublica’s reporting that he had “sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality … was not reportable.” Who advised Thomas? What did he tell them?

When it comes to those questions and many others, does Roberts know the answers? If Roberts does know, would he tell the Senate? The point is that, even if Roberts were to testify (not something to bet on, either), there’s little reason to think he could answer questions that Thomas is better equipped to address in any event.

And, just a day after Durbin’s deference to the justice on “Meet the Press,” Bloomberg News reported on Monday that Crow did have business before the court in at least one case, whereas Thomas had previously pointed to Crow’s supposed lack of business before the court as justifying his nondisclosure.

Now, if it came to subpoenaing any of the justices, that could be a tough legal battle. And the absence of Democratic Judiciary Committee member Dianne Feinstein for health reasons, which curbs the Democrats’ committee majority and subpoena power, could partly be animating Durbin’s weak approach.

But if that’s the case, Durbin would do better to note those real issues, rather than withdrawing from a fight before one starts. Indeed, the sad exchange underscores why Supreme Court justices act like there isn’t a real check on them— because it doesn’t seem like there is one.