The pressure is building for the Senate to do something about Alito

Supreme Court Justice Samuel Alito’s insurrectionist flag flying was bad enough the first time around. The second instance demands action. Congress, Chief Justice John Roberts, and the third branch body that oversees the judiciary—the Judicial Conference—have to act, but it’s not going to happen unless the Senate Judiciary Committee raises some hell. 

The problem is the chair of that committee, who is also the No. 2 leader of the Senate Democrats, is dithering. Dick Durbin of Illinois, told reporters “I don't think there's much to be gained with a hearing at this point” when news broke that Alito flew an upside-down American flag at his home days after the violent insurrection of Jan. 6, 2021, as well as while the court was still considering whether to take up cases over the 2020 election.

“I think he should recuse himself from cases involving Trump and his administration,” Durbin continued.

After the second flag scandal, Durbin is still just calling for Alito’s recusal on cases the court is deciding right now: Donald Trump’s immunity in criminal cases in his efforts to overturn the 2020 election and on the prosecution of Jan. 6 riot participants. He’s still not sure whether his committee should investigate; He wants more time to think about it.

“Justice Alito is not taking care to avoid political identity,” he told The Washington Post. “He is identifying the right-wing elements in our political system. And that’s unfortunate. It’s further evidence of the need for him to recuse himself from cases that involve the Trump administration.”

“[Chief] Justice Roberts has to step back and realize the damage that’s being done to the reputation of the court,” Durbin added.

Roberts might realize that, but the chances that he’s going to do something about it are about as unlikely as Alito’s recusal.

Outside groups, including Indivisible and Demand Justice, as well as legal experts are pressuring Durbin to act by launching an investigation into Alito’s insurrectionist leanings. “Chief Justice Roberts must demand that Justices Thomas and Alito not be allowed to participate in deciding the immunity case or any other decision related to Jan. 6,” Norman Eisen, former impeachment counsel to the House Judiciary Committee, and Michael Podhorzer, senior fellow at the Center for American Progress, wrote this week for MSNBC.  

“And the Senate should hold hearings immediately investigating their conduct. Any other course risks the court’s legitimacy, Americans’ rights and the rule of law,” they concluded.

Durbin is facing pressure inside the Senate as well. Two Democrats on the Judiciary Committee, both nipping at Durbin’s heels to succeed him as chair, want more. Sen. Sheldon Whitehouse of Rhode Island told MSNBC’s Lawrence O'Donnell that what Alito is doing by refusing to recuse on these cases is breaking a "law passed by Congress, specifically applicable to Supreme Court Justices. When they pay no attention to it, they are actually violating statutory law."

Whitehouse went on to say that “it has gotten to the point where the Chief Justice has to engage, and I think you will see more action on that shortly out of the Judiciary Committee.”

Sen. Richard Blumenthal of Connecticut told MSNBC’s Chris Hayes Tuesday that “Chief Justice Roberts ought to be summoned to a hearing before the Judiciary Committee of the Senate. He ought to show some leadership and be held accountable.”

“Of course, Justice Alito ought to be subpoenaed as well in my view, but likely he is not going to appear and I think it is a time of reckoning for the Congress,” Blumenthal continued.

“Justice Alito says the Congress can't regulate, to use his term, the Supreme Court. But the Congress set salaries. It sets rules of procedure. It sets the numbers of justices. The founders didn't want the United States Supreme Court to be above the law.”

Alito famously declared himself and the rest of the justices just that in an interview with The Wall Street Journal last year, in which he made a startling assertion of constitutional power: “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

That interview was with David Rivkin Jr., a regular contributor to the WSJ who also happens to be a lawyer who was about to argue a major tax case before the court. Durbin once again called on Alito to recuse from that case, as well as on Roberts to do something about Alito, for all the good it did.

This is not so subtle pressure on Durbin to do more than tweet sternly worded statements from two of his senior committee members. They see what all of us see: Asking nicely for Alito to recuse—which Durbin and House Democrats have done—is weak sauce.

It’s time to act. House Democratic leadership should be talking impeachment instead of issuing empty demands to Alito. No, Speaker Mike Johnson won’t go along with it, but Democrats are a hair's breadth from having control of the House and they should act like it. They are also likely to take the House back in November, which gives an impeachment threat now more weight.

The Senate Judiciary, led by Durbin, has to investigate. They have to put maximum pressure on Roberts starting right now, before the court issues its rulings on Trump immunity. 

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We're heading across the pond for this week's episode of "The Downballot" after the UK just announced it would hold snap elections—on July 4, no less. Co-host David Beard gives us Yanks a full run-down, including how the elections will work, what the polls are predicting, and what Labour plans to do if it finally ends 14 years of Conservative rule. We also take detours into Scotland and Rwanda (believe it or not) and bear down on a small far-right party that could cost the Tories dearly.

Campaign Action

Morning Digest: Republican who got bounced from ballot in governor’s race now weighing Senate bid

The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, and Stephen Wolf, with additional contributions from Daniel Donner, David Jarman, Steve Singiser, James Lambert and David Beard.

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Leading Off

MI-Sen: The latest Michigan Republican to express interest in the state's open Senate race is former Detroit Police Chief James Craig, who ran a chaotic 2022 campaign for governor even before he was ejected from the ballot over fraudulent signatures. But Craig, who went on to wage a hopeless write-in campaign last year, remains characteristically undeterred, telling The Detroit News he's giving a Senate effort a "real critical look" but has no timeline to make up his mind. Several more disastrous Republican candidates from last cycle are also eyeing Senate runs in other states, though unlike Craig, they were at least able to make the ballot before losing.

Craig was the frontrunner in the summer of 2021 when he entered the GOP primary to take on Democratic Gov. Gretchen Whitmer, though his initial announcement that he was forming an exploratory committee―an entity that doesn't actually exist under Michigan law―was an early omen about the problems ahead. Indeed, the former chief's bid would experience several major shakeups, including the departure of two different campaign managers in less than four months.

Craig, who also made news for his heavy spending, got some more unwelcome headlines in April of 2022 when Rep. Jack Bergman announced he was switching his endorsement to self-funding businessman Perry Johnson; Bergman complained that his first choice ignored "campaigning in Northern Michigan and the [Upper Peninsula] in favor of a self proclaimed Detroit-centric approach." Still, polls showed Craig well ahead in the primary as he sought to become the Wolverine State's first Black governor.

Everything changed in May, though, when election authorities disqualified Craig, Johnson, and three other contenders from the ballot after they fell victim to a huge fraudulent signature scandal and failed to turn in enough valid petitions. Both Craig and Johnson both unsuccessfully sued to get reinstated, but only the former chief decided to forge ahead with a write-in campaign to win the GOP nod.

Craig blustered, "I'm going to win," but he became an afterthought even before far-right radio commentator Tudor Dixon emerged as the new frontrunner. Craig's write-in effort ended up taking all of 2% of the vote, though he was far from willing to back Dixon after she secured the nomination that once looked his for the taking. He instead endorsed U.S. Taxpayers Party contender Donna Brandenburg, who had also been ejected from the Republican primary, saying that Dixon's extreme opposition to abortion rights went too far even for him. Whitmer soon won 54-44, with Brandenburg in fourth with just 0.4%.

Craig's newest campaign flirtations come at a time when no major Republicans have stepped up to run for the Senate seat held by retiring Democratic incumbent Debbie Stabenow. The only notable declared contender is state Board of Education member Nikki Snyder, who also failed to make the primary ballot in 2020 when she tried to challenge Democratic Rep. Elissa Slotkin. (Dixon herself didn't shut the door on a Senate bid right after Stabenow announced her departure in January, but we've heard little from her over the following three months.)

Slotkin continues to have the Democratic side to herself, though actor Hill Harper reportedly plans to run and state Board of Education President Pamela Pugh is publicly considering herself.

1Q Fundraising

  • CA-30: Mike Feuer (D): $654,000 raised (in eight weeks), $630,000 cash on hand
  • RI-02: Seth Magaziner (D-inc): $360,000 raised

Senate

CT-Sen: Democratic Sen. Richard Blumenthal on Sunday underwent what he said was a “completely successful” surgery for a broken leg after someone accidently tripped and collided with him at the previous day’s victory parade for the University of Connecticut's men’s basketball team. Homestate colleague Chris Murphy tweeted, “FYI after he broke his femur he got back up, dusted himself off, and FINISHED THE PARADE,” adding, “Most Dick Blumenthal thing ever.”

MS-Sen: Far-right state Rep. Dan Eubanks has filed FEC paperwork for a potential Republican primary bid against Sen. Roger Wicker, who doesn’t appear to have made many intra-party enemies. Eubanks, who said in 2020 his family would not be getting vaccinated for COVID, introduced a pair of bills the next year to criminalize abortion and to prevent employers from requiring COVID vaccines.

MT-Sen: Rep. Matt Rosendale doesn’t seem to be in the least bit of a hurry to reveal if he’ll seek a rematch with Democratic Sen. Jon Tester, telling CNN, “We’re just taking a nice slow time to let the people in Montana decide who they want to replace him with.”

PA-Sen: Sen. Bob Casey confirmed Monday he’d seek a fourth term, a long-anticipated decision that still relieves Democrats who weren’t looking forward to the idea of defending an open seat in a swing state. Republican leaders continue to hope that rich guy ​​Dave McCormick will take on Casey after narrowly losing the 2022 primary for the other Senate seat, though McCormick has yet to reveal any timeline for deciding beyond sometime this year. Those same GOP leaders are also not looking forward to the prospect that state Sen. Doug Mastriano could make trouble for them again after his catastrophic bid for governor last cycle.

WI-Sen: CNN reports that GOP leaders are urging Rep. Mike Gallagher to take on Democratic Sen. Tammy Baldwin, and he’s characteristically not quite ruling it out. “I’m not thinking about it at present,” the congressman said, which is similar to the response he’s given for months. He added of his time in office, “I’d never conceived of this as a long-term thing; I don’t think Congress should be a career ... I’m going to weigh all those factors and see where I can make the best impact.”

Governors

LA-Gov: Republican Stephen Waguespack says he’s raised about $900,000 in the four weeks since he stepped down as head of the Louisiana Association of Business and Industry to run for governor, but his super PAC allies have taken in considerably more to help jump start his campaign. Delta Good Hands and Reboot Louisiana together have hauled in $2.23 million during the not-quite quarterly fundraising period that finished April 7; reports are due for everyone April 17.

House

CA-45: Attorney Aditya Pai announced Monday that he would campaign as a Democrat against Republican Rep. Michelle Steel in next year’s top-two primary for a constituency Biden carried 52-46. Pai, who immigrated from India as a child, would be the first Indian American to represent an Orange County-based seat in Congress.

Also in the running are two fellow Democrats: Garden Grove City Councilwoman Kim Bernice Nguyen and attorney Cheyenne Hunt, a former consumer advocate from Public Citizen whom Politico says enjoys a "substantial TikTok following."

OH-09: Real estate broker Steve Lankenau, who served as mayor of the small community of Napoleon from 1988 to 1994, has announced that he's joining the GOP primary to take on Democratic Rep. Marcy Kaptur.

Another local Republican, disastrous 2022 nominee J.R. Majewski, made news briefly Friday when he updated his information with the FEC, though some outlets initially and incorrectly reported that he'd filed paperwork for a rematch with Kaptur. As we've written before, though, what look like new filings from defeated candidates often have more to do with resolving financial and bureaucratic matters from their last campaign than they do about the future, and Majewski himself said, "Unfortunately I have not filed a statement of candidacy."

PA-07, PA-08, PA-17: Inside Elections' Erin Covey surveys the potential Republican fields in a trio of Democratic-held House seats in Pennsylvania, though no big names have so much as publicly expressed interest in running yet.

We'll start in Democratic incumbent Susan Wild's 7th District in the Lehigh Valley, a constituency Joe Biden took just 50-49 in 2020. Covey reports that Lisa Scheller, whom Wild narrowly held off in both 2020 and 2022, hasn't ruled out another try, though unnamed Republicans doubt she'll wage a third campaign. There's been some chatter about state Rep. Ryan Mackenzie and Kevin Dellicker, who lost last year's primary to Scheller just 52-48, though no word if either is interested.

The situation is similar in Rep. Matt Cartwright's 8th District just to the north, a Scranton/Wilkes-Barre constituency that Donald Trump carried 51-48. Another two-time nominee, Jim Bognet, reportedly hasn't closed the door on another attempt, but a GOP source tells Covey there's "definitely donor fatigue" about him. State Sen. Rosemary Brown and gastroenterologist Seth Kaufer have been talked about as alternatives, but a party operative acknowledges, "It's been oddly quiet at this point in terms of people talking with other people about potentially running."

There seems to be a bit more interest in taking on freshman Democratic incumbent Chris Deluzio in the 17th District across the state in the Pittsburgh suburbs, though still no takers yet for this 52-46 Biden seat. Covey writes that 2022 nominee Jeremy Shaffer, who lost to Deluzio 53-47, "has shown some interest" in a 2024 attempt, as has state Rep. Rob Mercuri. A few other Republicans have also been mentioned including 2022 primary runner-up Jason Killmeyer; businesswoman Tricia Staible, who dropped out before the primary; Allegheny County Councilman Sam DeMarco; and former state House Speaker Mike Turzai.

RI-01: Former state Rep. Aaron Regunberg declared Monday that he would compete in the upcoming special election while his fellow Democrat, state Rep. Steve Casey, has filed FEC paperwork and says he'll also announce soon. Regunberg in 2018 waged a primary bid against Lt. Gov. Dan McKee, who had long had an uneasy relationship with progressives and unions. The challenger, who accused McKee of accepting "dark money" from PACs, also benefited from the support of several major labor groups, and it was almost enough to unseat him.

But McKee, who argued that he'd be better positioned to lead the state should Gov. Gina Raimondo leave office early, maintained the backing of most Ocean State politicos, and he held on 51-49 before decisively winning the general election. The scenario the incumbent predicted indeed came to pass in 2021 when Raimondo became U.S. secretary of commerce and McKee replaced her as governor.

Judges

NY Court of Appeals: Democratic Gov. Kathy Hochul announced Monday that her new nominee to head New York's highest court would be a current member of its liberal wing, associate Judge Rowan Wilson, a development that comes almost two months after the state Senate overwhelmingly rejected her first choice for chief judge of the Court of Appeals. Hochul also revealed that she'd be picking attorney Caitlin Halligan, who is a former state solicitor general, to take the associate seat Wilson would be vacating.

New York Focus' Sam Mellins predicted that Halligan would be the swing vote on a body where liberals and conservatives have been evenly split since conservative Chief Judge Janet DiFiore unexpectedly resigned last year. DiFiore's departure last time gave Hochul a chance to reshape the court―a chance she very much did not take at first.

In New York the governor is required to pick from a list of seven court nominees submitted by the Commission on Judicial Nominations, and The Daily Beast reported in January that the one name that labor groups objected to was the person Hochul opted for, Hector LaSalle. LaSalle needed a majority of the state Senate to vote his way, but the Democratic-led body ultimately delivered him a historic 39-20 rejection.  

Prominent liberals this time responded by praising Wilson, who would be the Court of Appeals' first Black chief judge, while Halligan's nomination hasn't attracted anything like the backlash that greeted LaSalle. The Center for Community Alternatives, the progressive coalition that helped block LaSalle earlier this year, said that, while Halligan's time representing "a prosecutor's office and of major corporations in disputes against their employees and others raises concerns," she would still be "a marked improvement" from DiFiore.

CCA, which also noted Halligan had represented progressives, called for the state Senate to "scrutinize her closely in its consideration of her nomination." Majority Leader Andrea Stewart-Cousins and other powerful Democrats who opposed LaSalle in turn issued statements supportive of both Wilson and Halligan.

PA Supreme Court: Newly released fundraising reports for the May 16 primaries show that the two contenders who have the backing of their respective state party, Democrat Daniel McCaffery and Republican Carolyn Carluccio, hold a big edge over their intra-party foes. The post everyone wants to win on Nov. 7 became vacant last September when Chief Justice Max Baer died at the age of 74, just months before the Democrat was required to retire because of age limits.

McCaffery outraised fellow Superior Court Judge Deborah Kunselman $141,000 to $56,000 among donors during the first three months of 2023, with Kunselman throwing down another $11,000. Carluccio, who holds the title of president judge in Montgomery County, meanwhile raised $122,000 and threw down another $25,000.

Finally, Spotlight PA says that almost all of the $11,000 that Commonwealth Court Judge Patricia McCullough hauled in came from the campaign of state Sen. Doug Mastriano, the QAnon ally who was the GOP's 2022 nominee for governor.

Legislatures

TN State House: Just days after being expelled from the Tennessee legislature for taking part in a demonstration on the House floor, Democrat Justin Jones was unanimously restored to his post by Nashville’s Metropolitan Council. Republicans had sought Jones' ouster after he used a megaphone to lead a chant in favor of gun law reforms from the chamber's well, but the state constitution gives local county governments the power to fill vacancies. (The Metro Council is officially nonpartisan but leans Democratic.)

The constitution also forbids lawmakers from punishing members twice for the same offense, so Jones should be able to keep his seat until a special election can be held for a permanent replacement—a race in which he's also eligible to run. Jones was unopposed last year in his bid for the safely blue 52nd District, though he first had to win a competitive primary.

A second Democrat who was ejected from the House, Justin Pearson, is also likely to be reinstated when the Shelby County Commission meets on Wednesday to discuss the fate of the Memphis-area 86th District, another deep blue seat. Like Jones, Pearson also ran uncontested when he won a special election just last month after dominating a large primary field.

One commissioner who supports Pearson said that Republican legislative leaders have threatened to cut funding for the county if it sends Pearson back to the legislature. GOP lawmakers have also retaliated against Nashville for thwarting their plans to host the 2024 Republican convention by, among other things, passing a bill to cut the 40-member Metro Council in half, but that effort was temporarily blocked by a court on Monday.

Mayors and County Leaders

Allegheny County, PA Executive: The first poll we've seen of the May 16 Democratic primary is an early March survey from the GOP firm Public Opinion Strategies for the "business-organized labor-workforce-economic development alliance" Pittsburgh Works Together, and it shows county Treasurer John Weinstein leading Pittsburgh Controller Michael Lamb 28-24 as state Rep. Sara Innamorato took 17%. No other candidate earned more than 2% in the nomination fight to succeed termed-out incumbent Rich Fitzgerald in this loyally blue community.

WESA's Chris Potter writes that, while party insiders "say the numbers track with other internal polls taken in March," much has happened since this POS survey was conducted. Weinstein launched his first ads in late February and had a monopoly on the airwaves for weeks, but Lamb, Innamorato, and attorney Dave Fawcett have since started running commercials. Weinstein also has attracted weeks of scrutiny over his ethics in office, including what Potter weeks ago characterized as "alleged secret deals to be returned to the board of the county's sewer authority."

Philadelphia, PA Mayor: A judge on Monday issued a temporary order banning grocer Jeff Brown’s super PAC allies from spending more money on his behalf, a move that came after the Philadelphia Board of Ethics filed a lawsuit alleging that Brown and For A Better Philadelphia had improperly coordinated ahead of the May 16 Democratic primary. The PAC’s attorney said that the group, which has spent $1.1 million, had finished its spending for the campaign and would agree to the order, though it pushed back on the board’s claims. A full hearing is set for April 24.

The board alleges that Brown “engaged in extensive fundraising” for the PAC’s nonprofit arm, which in turn financed its electoral efforts. The candidate’s attorney disputes this, calling the suit “a disagreement on campaign finance between the lawyers.”