Tuesday’s contentious hearing of the Senate Judiciary Committee — which at times felt like a seminar on Constitutional Law — presages a battle royale between Democrats who want to bring the Supreme Court to heel and Republicans who paint a picture of a high court under siege by what Senator Kennedy called the “loony left.” 

A month before a blockbuster set of rulings is slated to come down, the justices have become one of the hottest topics on Capitol Hill. It was Attorney General Mukasey, a veteran of a distinguished life in the law, who rebutted Democratic claims that Justices Clarence Thomas and Neil Gorsuch have acted crosswise with ethics. 

It was Senator Durbin, the chairman, who convened the session by reminding that he had issued an invitation to Chief Justice Roberts to appear, which the chief declined by citing “separation of powers.” Mr. Durbin launched the session by calling it “critical that American people have confidence that judges cannot be bought.”

Mr. Durbin called the letter that conveyed Chief Justice Roberts’s refusal to appear an “extraordinary document — and not in a good way,” reading it as an expression of the position that the justices “do not feel bound” by either lawmakers or congressional fiat. 

Referencing recent disclosures regarding Justice Thomas’s relationship with a billionaire named Harlan Crow, Mr. Durbin asked, “How low can the court go?” He accused it of exhibiting behavior that “we wouldn’t accept … from a city councilman or alderman.” The “highest court in the land,” he intoned, “should not have the lowest ethical standards.”

The committee’s ranking Republican member, Senator Graham, expressed a “desire for the court to be more transparent,” but also denounced what he called a “concentrated effort by the left to delegitimize this court” and an “assault on Justice Thomas” that “goes well beyond ethics.” He also spoke of an “unseemly effort by the Democratic left to destroy the legitimacy of the Roberts Court.”

Mr. Graham also denounced what he called “selective outrage” on behalf of Democrats, who have called for Justice Thomas’s recusal because of the activities of his wife while mustering hardly a peep over Justice Elena Kagan sitting for Student for Fair Admissions v. Harvard, despite having raised “half a billion dollars” for the school while she served as dean. 

It was Senator Whitehouse who leveled the most sustained attack on the court, accusing a late justice, Antonin Scalia, of taking “more than seven dozen unreported hunting trips” and mislabeling them as “personal hospitality” to avoid reporting them. He essayed that the “court has demonstrated that it cannot police itself.”

Mr. Whitehouse reserved special vitriol for Virginia “Ginni” Thomas, whom he accused of “insurrectionary activities” in connection with the events of January 6, 2021, and the conservative judicial activist Leonard Leo, who for years led the Federalist Society. Of Mr. Leo, Mr. Whitehouse hazarded that “he doesn’t have business before the court, he is the court.”

It was Mr. Kennedy, of Louisiana, who offered the most dramatic literary fireworks, denouncing “left of Lenin Democrats” who aim to “control the courts.” He urged Democrats displeased with the high court’s direction to “fill out a hurt feelings report and move on.” He added that “you don’t need to be Einstein’s cousin” to figure out that Democrats are aiming to “change the rules.” 

The rules were top of mind for Attorney General Mukasey, who has also served as a judge of the United States district in the Southern District of New York. He told the lawmakers that it is the Supreme Court itself and not Congress that “has the constitutional prerogative about whether to adopt a code of ethics.” He called any code imposed by Congress “unworkable.”

Judge Mukasey expounded that “recusal decisions” — meaning whether a judge should remove himself or herself from hearing a case —  “are fundamentally judicial decisions.” He cited the “duty to sit,” first articulated by Chief Justice Rehnquist, explaining that a justice is just as obligated to sit when not disqualified as she is to step aside when sitting would be inappropriate.

To drive home the point, Judge Mukasey told the committee: “Justices cannot be replaced like minor league baseball players called up” to replace injured big leaguers. He pointed out that Justice Thomas likely did not believe that Harlan Crow’s purchase of his mother’s house required reporting because the justice lost money on the transaction, an incorrect albeit not unreasonable position.

Judge Mukasey called criticism of Justice Gorsuch’s real estate transactions “meritless,” pointing out that his interlocutor did not know his identity until after the deal was consummated. Of the report in the New York Times of influence peddling on behalf of the Antonin Scalia School of Law, the former attorney general told the senators that “anyone familiar with the climate at law schools knows that criticism is ridiculous.”

Further conflict is likely to cluster around a bill introduced by Mr. Whitehouse called the Supreme Court Ethics, Recusal, and Transparency Act of 2023, which would bind the justices to a code imposed by Congress. It is unlikely the measure will gain Mr. Kennedy’s vote. 

To express his opposition to the Democratic push, the Louisianian quoted Matthew 12:36 in reference to his Democratic colleagues: “But I say to you that for every idle word men may speak, they will give account of it in the day of judgment. For by your words you will be justified, and by your words you will be condemned.”