Would the justice even comply, if it got that far? When the infamous House Un-American Activities Committee subpoenaed Justice Tom Clark in 1953, the justice simply declined to appear, and the committee didn’t try to force compliance in court. This time around, the situation was further complicated by
the absence of committee member Sen. Dianne Feinstein (D-Calif.), who would ostensibly provide a crucial vote that would allow the Democrats to get legislation, or a subpoena, through the panel over Republican opposition. (Feinstein has been recovering from shingles for more than two months.)
Against these procedural head winds, Durbin, whose staff did not make him available for an interview, chose a more diplomatic path.
“I invited the chief justice to join this conversation,” he said when Tuesday’s hearing began. But the chief justice had declined, as many had expected, citing “separation of powers concerns.” Durbin didn’t exactly buy that. “The reality is that sitting justices have testified at 92 congressional hearings since 1960,” he said, “and I even offered the chief justice the opportunity to designate someone else on the Court to testify.”
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