[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]




 
               MAINTAINING JUDICIAL INDEPENDENCE AND THE  RULE OF LAW: 
                EXAMINING THE CAUSES AND CONSEQUENCES OF COURT CAPTURE

=======================================================================

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 22, 2020

                               __________

                           Serial No. 116-86

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
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               Available via: http://judiciary.house.gov
               
               
               
                    
                      ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
42-832             WASHINGTON : 2022               
               
               
                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
               MARY GAY SCANLON, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            DOUG COLLINS, Goorgia
STEVE COHEN, Tenessee                F. JAMES SENSENBRENNER, Jr., 
HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
    Georgia                          STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
KAREN BASS, California               KEN BUCK, Colorado
CEDRIC L. RICHMOND, Louisiana        MARTHA ROBY, Alabama
HAKEEM S. JEFFRIES, New York         MATT GAETZ, Florida
DAVID N. CICILLINE, Rhode Island     MIKE JOHNSON, Louisiana
ERIC SWALWELL, California            ANDY BIGGS, Arizona
TED LIEU, California                 TOM McCLINTOCK, California
JAMIE RASKIN, Maryland               DEBBIE LESKO, Arizona
PRAMILA JAYAPAL, Washington          BEN CLINE, Virginia
VAL BUTLER DEMINGS, Florida          KELLY ARMSTRONG, North Dakota
J. LUIS CORREA, California           W. GREGORY STEUBE, Florida
GUY RESCHENTHALER, Pennsylvania      THOMAS TIFFANY, Wisonsin
SYLVIA R. GARCIA, Texas
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas

        PERRY APELBAUM, Majority Staff Director & Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

             HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
                 J. LUIS CORREA, California, Vice-Chair

THEODORE E. DEUTCH, Florida          MARTHA ROBY, Alabama, Ranking 
CEDRIC RICHMOND, Louisiana               Member
HAKEEM JEFFRIES, New York            STEVE CHABOT, Ohio
TED LIEU, California                 MATT GAETZ, Florida
GREG STANTON, Arizona                MIKE JOHNSON, Louisiana
ZOE LOFGREN, California              ANDY BIGGS, Arizona
STEVE COHEN, Tennessee               GUY RESCHENTHALER, Pennsylvania
KAREN BASS, California               BEN CLINE, Virginia
ERIC SWALWELL, California

                      JAMIE SIMPSON, Chief Counsel
                     BETSY FERGUSON, Senior Counsel
                     
                            C O N T E N T S

                              ----------                              

                           September 22, 2020

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................     1
The Honorable Martha Roby, Ranking Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of Alabama.....................................................     3

                               WITNESSES
                                Panel I

The Honorable Sheldon Whitehouse, U.S. Senator, State of Rhode 
  Island
  Oral Testimony.................................................     5
  Prepared Statement.............................................    84

                                Panel II

Dr. Tom Ginsburg, Leo Spitz Professor of International Law, 
  Ludwig and Hilde Wolf Research Scholar and Professor of 
  Political Science, University of Chicago Law School
  Oral Testimony.................................................    88
  Prepared Statement.............................................    91
Mr. Ilya Shapiro, Director, Robert A. Levy Center for 
  Constitutional Studies, Cato Institute
  Oral Testimony.................................................   100
  Prepared Statement.............................................   103
The Honorable Nancy Gertner (Ret.), Former U.S. Judge for the 
  District of Massachusetts and Senior Lecturer on Law, Harvard 
  Law School
  Oral Testimony.................................................   148
  Prepared Statement.............................................   150
Dr. Amanda Hollis-Brusky, Associate Professor of Politics, Pomona 
  College
  Oral Testimony.................................................   157
  Prepared Statement.............................................   159

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

A report entitled, ``Captured Courts: The GOP's Big Money Assault 
  On The Constitution, Our Independent Judiciary, And The Rule of 
  Law,'' Democratic Policy & Communications Committee, submitted 
  by the Honorable Sheldon Whitehouse, U.S. Senator, State of 
  Rhode Island for the record....................................     8
An essay entitled, ``Dark Money and U.S. Courts: The Problem and 
  Solutions,'' Senator Sheldon Whitehouse, submitted by the 
  Honorable Sheldon Whitehouse, U.S. Senator from the State of 
  Rhode Island for the record....................................    62
An article entitled, ``Shelby County and the Vindication of 
  Martin Luther King's Dream,'' New York University Journal of 
  Law and Liberty, submitted by Ilya Shapiro, Director, Robert A. 
  Levy Center for Constitutional Studies, Cato Institute for the 
  record.........................................................   118
An article entitled, ``An Assessment of Minority Voting Rights 
  Obstacles in the United States,'' Cato Institute, submitted by 
  Ilya Shapiro, Director, Robert A. Levy Center for 
  Constitutional Studies, Cato Institute for the record..........   131
An article entitled, ``Term Limits Won't Fix the Court,'' The 
  Atlantic, submitted by Ilya Shapiro, Director, Robert A. Levy 
  Center for Constitutional Studies for the record...............   142
An article entitled, ``Don't Confirm Scalia's Replacement Until 
  After the Election,'' Ilya Shapiro, submitted by the Honorable 
  Hakeem Jeffries, a Member of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of New 
  York for the record............................................   190
An article entitled, ``Questions for Senator Whitehouse,'' Wall 
  Street Journal, submitted by the Honorable Jim Jordan, Ranking 
  Member of the Committee on the Judiciary from the State of Ohio 
  for the record.................................................   198
Articles submitted by the Honorable Andy Biggs, a Member of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Arizona for the record
  An article entitled, ``Network of news sites must register as a 
    political committee due to Democratic links, complaint 
    alleges,'' Washington Post...................................   210
  An article entitled, ``EXCLUSIVE: Democratic Senator Hopes 
    Liberal Dark Money Groups Donate to His Campaign,'' Daily 
    Caller.......................................................   215
  An article entitled, ``Democratic bill would require dark money 
    judicial groups to reveal donors,'' CNBC.....................   218
  An article entitled, ``Newsroom or PAC? Liberal group muddles 
    online information wars,'' Politico..........................   221
  An article entitled, ``Wealthy donors pour millions into fight 
    over mail-in voting,'' AP News...............................   228
  An article entitled, ``Left's Point Person for Post-Election 
    Violence Prep Linked to Arabella Advisors,'' Free Beacon.....   232
  An article entitled, ``Documents reveal massive `dark-money' 
    group boosted Democrats in 2018,'' Politico..................   235
  An article entitled, ``Democrats used to rail against `dark-
    money.' Now they're better at it than the GOP,'' NBC News....   239
  An article entitled, ``Schumer-Tied PAC Received $1.7 Million 
    From Dark Money Group,'' Free Beacon.........................   244
  An article entitled, ``Whitehouse Blames `Dark Money' For Why 
    He Raised So Much For '18 Campaign,'' The Public's Radio.....   246
  A document entitled, ``Sen. Whitehouse--Rhode Island,'' 
    OpenSecrets..................................................   250
  An article entitled, ``Rep. Andy Biggs: Trump, nominate RBG 
    replacement now-here's why it's so important,'' Fox News.....   254
  An article entitled, ``Public Interest Litigation, Senator 
    Whitehouse, and the Kavanaugh Hearing,'' Pacific Legal 
    Foundation...................................................   259
  An article entitled, ``Climate Change and Dark Money,'' the 
    Honorable Sheldon Whitehouse, U.S. Senator from the State of 
    Rhode Island and the Honorable Chuck Schumer, Senate Minority 
    Leader from the State of New York............................   261
  An article entitled, ``Facebook cracks down on `fake news' 
    sites, including far-left operation funded by dark money,'' 
    Fox News.....................................................   265


                 MAINTAINING JUDICIAL INDEPENDENCE AND
                 THE RULE OF LAW: EXAMINING THE CAUSES
                 AND CONSEQUENCES OF COURT CAPTURE

                              ----------                              


                      Tuesday, September 22, 2020

                        House of Representatives

             Subcommittee on Courts, Intellectual Property,

                            and the Internet

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 2:02 p.m., 2141 
Rayburn Building, Hon. Henry C. ``Hank'' Johnson, Jr. [Chair of 
the Subcommittee] presiding.
    Present: Representatives Johnson of Georgia [presiding], 
Correa, Jeffries, Stanton, Lofgren, Cohen, Jackson Lee, Roby, 
Jordan, Chabot, Gaetz, Johnson of Louisiana, Biggs, Cline, and 
Tiffany.
    Staff present: John Doty, Senior Advisor; John Williams, 
Parliamentarian; Jamie Simpson, Chief Counsel; Rosalind 
Jackson, Professional Staff Member; Christopher Hixon, Minority 
Staff Director; Betsy Ferguson, Minority Senior Counsel; 
Caroline Nabity, Minority Counsel; Kiley Bidelman, Minority 
Clerk.
    Mr. Johnson of Georgia. The Subcommittee will come to 
order. The chair is authorized to declare recesses of the 
Subcommittee at any time.
    Welcome to this afternoon's hearing on ``Maintaining 
Judicial Independence and the Rule of Law: Examining the Causes 
and Consequences of Court Capture.''
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of our 
hearing today.
    If you would like to submit materials, please send them to 
the email address that has been previously distributed to your 
offices and we will circulate the materials to Members and 
staff as quickly as we can.
    I will now recognize myself for an opening statement.
    This hearing has been rescheduled many times, and I thank 
my colleagues for their patience, as we have worked to find a 
date and I thank our Witnesses for their flexibility.
    The issue of the politicization of our cherished court 
system is a matter of great importance to me and, I am sure, 
this sentiment is echoed by many of my colleagues here today.
    I don't need to tell you that this hearing has taken on new 
weight, given the events of the past week. The loss of Supreme 
Court Justice Ruth Bader Ginsburg is something we all feel 
acutely.
    She was inspirational, not just as a way paver and role 
model for generations of lawyers here and around the world. She 
fought to protect so many of the rights that shape our lives as 
citizens of this nation.
    We are all better off in some small way because she touched 
our lives. We know her as someone who started her career 
fighting for women's equality and we know her as someone who 
had a deep heartfelt commitment to our Constitution.
    This is a personal loss to all of us. No one can ever 
replace her, but we must honor her legacy by continuing to 
fight for the rights she championed her entire career and by 
protecting the institution that she loved.
    What made Justice Ginsburg so beloved was her commitment to 
justice. She wasn't a rubber stamp for anyone, not for a 
president, not for a political party, not for an ideological 
society or organization, and certainly not for any corporate 
interests.
    In an era when our Constitution is under attack and our 
fundamental rights hang in the balance, the sanctity of the 
third branch is essential to preserving our fragile democracy.
    An independent and accountable court system is essential to 
a free and fair democratic society. Without an accountable and 
independent judiciary, the fundamental promise that all of us 
are equal in the eyes of the law becomes a lie, and if the 
American people believe that justice is no longer equal, our 
judges lose a principle source of their authority, public faith 
in their integrity.
    Unlike the other branches of government, few 
responsibilities of the judiciary are explicitly laid out in 
the Constitution. The reason we entrust judges with so much 
authority today is because we trust them to wield that 
authority independently of politics, political ideology, and 
personal connections.
    Judges should not serve presidents, parties, or political 
movements. They should not be seen as compromised by special 
interests and dark money.
    Judges should serve the cause of justice. Unfortunately, 
over the past years we have seen the rushed appointment of 
former political operatives to judgeships, a political and 
ideological organization given undue weight in Federal judicial 
nominations, and tens of millions of dollars spent by political 
and ideological organizations on Federal nominations.
    We have also seen the President repeatedly attack Federal 
judges in an attempt to intimidate the courts into doing what 
he says. We have also seen little movement by the judiciary to 
protect its integrity against these assaults on the Rule of 
law.
    Somehow, the Supreme Court still refuses to adopt a code of 
ethics. Somehow, the Judicial Conference is unable to advise 
lower court judges that Membership in groups dedicated to 
reshaping the judiciary is incompatible with their ethical 
obligations.
    Somehow, the Supreme Court still uses its shadow docket to 
make life or death decisions via unsigned unexplained orders 
issued in the dead of night. This should worry anyone who cares 
about the political neutrality and independence of our judicial 
system.
    In the last few years, we have also seen the Senate fail to 
live up to its constitutional obligation to dispassionately 
consider each and every one of the President--of President 
Trump's judicial nominees.
    Americans now see the Senate as a rushed rubber stamp and 
many of us on this side of the Capitol are forced to agree. 
Dark money, partisan pressure, ideological litmus tests, 
attacks by the President, a rubber stamp Senate, and a midnight 
judicial appointment.
    This is how courts are captured. This is how our judges can 
be seen to have lost their connection to the American people 
and to the Constitution.
    This is how we lose the faith of our fellow citizens. It is 
not too late. As a wise person once said, it is not dark yet.
    Ladies and gentlemen, it is getting there. I, for one, am 
deeply worried and it is time we investigate the depth and the 
breadth of this trend.
    I am looking forward to hearing from our esteemed Witnesses 
who have agreed to share their knowledge and experiences with 
us today.
    It is now my pleasure to recognize the Ranking Member of 
the Subcommittee, the gentlewoman from Alabama, Ms. Roby, for 
her opening statement.
    Ms. Roby. Thank you, Mr. Chair, and thank you to all our 
distinguished Witnesses for being here with us this afternoon.
    This past Friday, we all learned about the passing of 
Supreme Court Justice Ruth Bader Ginsburg. Justice Ginsburg was 
a faithful public servant and trailblazer.
    She is an icon and will always be a role model for women 
and men of all ages in the years to come. My prayers remain 
with her family and loved ones.
    Today's hearing is entitled ``Maintaining Judicial 
Independence and the Rule of Law: Examining the Causes and 
Consequences of Court Capture.''
    This provides a timely opportunity to examine the role and 
future of the Federal judiciary and the justices and judges who 
preside over impartial justice.
    While the title is, certainly, a mouthful, we plan to 
discuss the resources and tactics by private groups during 
nomination and confirmation process of judges and the idea that 
one side is seemingly capturing the courts.
    This hearing also plans to explore the participation of 
sitting Federal judges in legal organizations such as the 
Federalist Society, American Constitution Society, and the 
American Bar Association.
    Under current Federal election laws, groups such as social 
welfare organizations, labor unions, trade associations, and 
Chambers of Commerce are not required to disclose names of 
individual donors unless they are making electioneering 
communications or independent expenditures to expressly 
advocate for the election or defeat of a candidate.
    Because these organizations generally advocate in regard to 
specific issues and not endorsing or opposing specific 
candidates, their activities are overseen by the IRS and do not 
fall under FEC jurisdiction.
    This is in contrast with political action committees, also 
known as PACs, that advocate or donate on behalf of specific 
candidates. Our Witnesses will discuss balancing the importance 
of First amendment speech with the public's interest in 
understanding who is making financial contributions.
    This hearing will also cover what the majority has termed 
court capture, which describes the idea that one party is 
taking over the courts, apparently by nefarious means.
    Regardless of who is president, regardless of what party 
they come from, if there is an opening on the Federal 
judiciary, the President should nominate a person for that role 
and the Senate should decide whether the candidate is qualified 
enough to be confirmed so our Federal courts can continue to 
function effectively.
    During the nomination and confirmation process, it is 
proper and the American public should be able to voice their 
opinions to their elected officials about how they believe 
would be the best nominee.
    Whether a person's voice is expressed through a letter, 
phone call, email, or financial donation, the public should be 
able to make their voices heard. Private organizations have the 
right under current finance laws to advocate for policy 
positions and laws.
    A President and Senators ultimately have the only authority 
on the judicial nominees, not outside groups, no matter how 
much money they spend with their advocacy campaign.
    Just because a President, whether Democratic or Republican, 
nominates a candidate for the Federal bunch does not mean that 
they are, quote, ``capturing the courts,'' end quote.
    Finally, we will hear from our Witnesses on Advisory 
Opinion 117, released by the Judicial Conference Code of 
Conduct Committee earlier this year. In this advisory opinion, 
the Committee determined that membership in the American Bar 
Association was acceptable, but membership in the Federalist 
Society and the American Constitution Society was inconsistent 
with the Federal Judges Code of Conduct canons.
    Following reports of the draft advisory opinion, there was 
a--there was widespread criticism and concerns on the reasoning 
behind barring membership in certain organizations while 
allowing membership in others.
    The Administrative Office of the U.S. Courts decided to 
ultimately table Advisory Opinion 117 and not publish it. 
Although at this time the issue is, largely, moot, I still look 
forward to hearing from our Witnesses on this issue.
    I want to, again, thank all our distinguished Witnesses for 
being here with us this afternoon and I look forward to hearing 
your testimony on all of these very important issues.
    With that, Mr. Chair, I yield back.
    Mr. Johnson of Georgia. I thank the gentlelady from 
Alabama.
    There being no opening statements from either Full 
Committee Chair or Ranking Member of the Full Committee, I will 
proceed now to our Witness.
    I will now introduce the first panelist.
    Senator Sheldon Whitehouse has represented the State of 
Rhode Island in the United States Senate since 2007 where he 
serves on the Judiciary Committee, the Finance Committee, the 
Environment and Public Works Committee, and the Budget 
Committee.
    Before being elected to the Senate, Senator Whitehouse 
served as Rhode Island's U.S. Attorney and State Attorney 
General. Senator Whitehouse is a graduate of Yale University 
and the University of Virginia School of Law.
    Welcome, Senator Whitehouse, and you may begin.
    Before your testimony, however, I am reminding you that 
your written and oral statements made to the Subcommittee in 
connection with this hearing are subject to penalties of 
perjury, pursuant to 18 USC 1001, which may result in the 
imposition of a fine or imprisonment of up to five years or 
both.
    With that, you may proceed.

              TESTIMONY OF HON. SHELDON WHITEHOUSE

    Senator Whitehouse. Thank you, Chair.
    Chair Johnson, Ranking Member Roby, and Members of the 
Committee, first, I pay respect to Ruth Bader Ginsburg, whose 
life was a uniquely American story of passion and courage, 
leavened with determination and purpose to achieve justice and 
progress. She deserves a special place in America's pantheon. 
She will join our history among the greats, and I honor her 
today.
    Second, I ask that our Senate Democratic Report on Court 
Capture and a Harvard Journal of Legislation article be made a 
part of the record.
    Mr. Johnson of Georgia. Without objection.
    [The information follows:]



      

               THE HON. SHELDON WHITEHOUSE FOR THE RECORD

=======================================================================

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[

                              POLICY ESSAY

     DARK MONEY AND U.S. COURTS: THE PROBLEM AND SOLUTIONS

                      Senator Sheldon Whitehouse*
---------------------------------------------------------------------------

    * Sheldon Whitehouse served as Rhode Island's United States 
Attorney and Attorney General before being elected to the United States 
Senate in 2006. He is a Member of the Judiciary Committee and the 
ranking Democrat on the Judiciary Subcommittee on Crime and Terrorism. 
Senator Whitehouse has worked to strengthen American cybersecurity 
capabilities, improve resources to fight drug abuse and treat addiction 
in Rhode Island, and reverse the rise in prison populations and costs. 
He is a lending advocate for protecting access to justice, including 
the Seventh Amendment right to a civil jury. In response to a series of 
judgments favoring powerful corporate imterests, Senator Whitehouse has 
warned of the dangers of judicial activism and dark money influence 
over the judicial selection process. A strong supporter of greater 
transparency in the judicial system, Senator Whitehouse has introduced 
legislation to the require Supreme Court justices and Federal judges to 
disclose travel and hospitality perks they receive as prominent public 
figures, and to require the meaningful disclosure of funders of amicus 
curiae briefs. In addition to Judiciary, he is a member of the Budget, 
the Environment and Public Works, and the Finance Committees.
---------------------------------------------------------------------------
        ``There are more instances of the abridgement of the freedom of 
        the people by gradual and silent encroachments of those in 
        power than by violent and sudden usurpations.''                  
                         --James Madison

                        I. Introduction

    The Founding Fathers had many threats in mind when they 
crafted a constitution for our young and fragile nation. Locke, 
Montesquieu, and other Enlightenment thinkers offered helpful 
political theory, but theory went only so far. Our Founders 
knew that patriotism could be overborne by selfish impulses and 
personal passions; that foreign governments and rapacious 
elites could exploit weak institutions; and that sharp 
differences divided the thirteen colonies. They planned for a 
lot of threats and dangers--but they did not plan for the 
corrupting power of corporations.
    Today, corporations wield commanding power in our 
democracy. They do so directly, and through a network of trade 
associations, think tanks, front groups, and political 
organizations. That power too often is directed by cor- porate 
forces to dodge accountability for harms to the public; to 
subvert the free market to their advantage; and to protect 
their own political power by undermining democratic 
institutions.
    This article explores the expansion of that corporate power 
in our government, and its extension into a branch of 
government customarily viewed as insulated from special 
interest influence: The Federal Judiciary. I begin with a brief 
historical overview of corporate influence in America and a 
discussion of how that influence grew after the Supreme Court's 
decision in Citizens United v. FEC.\1\ I then tum to the fifty-
year-long project of the corporate right to reshape both 
Federal law and the Federal bench; to the scheme's tools, 
particularly anonymous ``dark money'' and the network of front 
groups behind which these interests hide; and to the long-
fought scheme's ultimate successes, culminating in the massive 
power grabs achieved in the Trump administration. The article 
concludes with recommendations for legislation that would 
increase transparency at the Court. We must address the crisis 
of legitimacy the courts now face before captured courts become 
a national scandal.
---------------------------------------------------------------------------
    \1\ 558 U.S. 310 (2010).
---------------------------------------------------------------------------

                 II. Corporations, Then and Now

    The Federalist Papers provide an important window into the 
concerns that animated the Founding Era as citizens considered 
a new Constitution for their colonies. The concerns that 
Alexander Hamilton, James Madison, and John Jay addressed were 
the prominent ones around which debate centered and on which 
the public needed reassurance. The main concerns were 
protecting individuals against the power of government (e.g., 
The Federalist No. 51); \2\ protecting democracy against the 
emergence of a new aristocracy or royalty (e.g., The Federalist 
No. 38); \3\ and protecting society from the power of faction--
what we today call partisanship and special interest (e.g., The 
Federalist No. 10).\4\
---------------------------------------------------------------------------
    \2\ The Federalist No. 51 (James Madison).
    \3\ The Federalist No. 38 (James Madison).
    \4\ The Federalist No. 10 (James Madison).
---------------------------------------------------------------------------
    We honor our Constitution, but it alone did not satisfy the 
colonial public. The Framers had to draft our Bill of Rights to 
protect explicitly an array of individual rights and fortify 
those rights with powerful defenses. Thence came freedom of 
speech, access to the jury, clearly delineated criminal process 
rights, and other protections.\5\ Together, the Constitution 
and Bill of Rights won the confidence of the American people 
and unified our country behind a single vision of Federal 
Government.
---------------------------------------------------------------------------
    \5\ The Declaration of Independence (U.S. 1776); see also Gerard N. 
Magliocca, The Bill of Rights as a term of Art, 92 Notre Dame L. Rev. 
231, 236 (2016) (noting that ``Jefferson did write one letter in 1792 
that stated: `[M]y objection to the Constitution was, that it wanted a 
bill of rights securing freedom of religion, freedom of the press, 
freedom from standing armies, [and] trial by jury . . . . The sense of 
America has approved my objection and added the Bill of Rights.' '').
---------------------------------------------------------------------------
    All of these efforts and robust debates reveal by omission 
that the Founders had a blind spot: They did not anticipate any 
threat to individuals from the power of corporations. It is 
easy to understand why not. For the Founders, corporations were 
not front of mind. The word ``corporation'' only appears in the 
eighty-five Federalist Papers three times, with one of those a 
reference to municipal corporations.\6\ The word barely 
registers in Madison's note of the Federal Convention.\7\ On 
our American continent, the big British corporation threatened 
no harm: The B1itish Hudson Bay Company operated in remote 
areas of Canada; the Massachusetts Bay Company had become a 
colony;\8\ the British East India Company had been humbled\9\ 
Such smaller corporations a existed in d1e colonie were 
creatioru of State legisla- tures, and operated und er the 
watchful eye of local political force, usually to provide 
roads, canals and other welcome infrastructure. If a 
corporation overstepped its bounds or harmed its local 
community, political authorities could revoke its charter.\10\ 
At the Founding, corporate entities were no threat to the 
fledgling democracy and the idea of such non-human entities 
achieving a dominant role in a republic of ``We the People'' 
would have seemed fanciful.
---------------------------------------------------------------------------
    \6\ See, The Federalist Nos. 37, 45 (James Madison), No. 69 
(Alexander Hamilton).
    \7\ See, James Madison, Notes on the Debates in the Federal 
Convention, The Avalon Project (1787), https://avalon.law.yale.edu/
subject_menus/debcont.asp [https://perma.cc/8JWU-AV3C].
    \8\ See, Massachusetts Bay Colony, Fletcher Cyc. Corp, Encyc. 
Britannica Online, s.v.
    \9\ See, William Dalrymple, The East Indian Company: The Original 
Corporate Raiders, Guardian (Mar. 4, 2015), https://
www.theguardian.com/world/2015/mar/04/east-india-company-original-
corporate-raiders?CMP=share_btn_tw [https://perma.cc/T837-FPJD].
    \10\ See, e.g., Ian Speir, Corporations, the Original 
Understanding, and the Problem of Power, 10 Geo, J.L. & Pub. Pol'y 115, 
135 (2012) (describing how Connecticut ``reserved to the legislature a 
power to revoke or amend'' the Connecticut Medical Society's charter 
and how ``[t]he Pennsylvania General Assembly revoked [the Bank of 
North America's] corporate charter'' by ``rel[ying] on a committee 
report citing the bank's inordinate power'').
---------------------------------------------------------------------------
    Fast forward to the modem era where corporations are now 
ubiquitous and hold massive political power throughout 
government. Let's consider how.
    One obvious exercise of that power is through corporate 
lobbying. Congress swarm with corporate lobbyists. In 2018 
alone, corporations spent $3.4 billion on direct lobbying.\11\ 
One trade organization, the U.S. Chamber of Commerce, has spent 
over $1.5 billion lobbying over the past two decades.\12\ Much 
of its effort has been on political mischief like climate 
denial.\13\ Mick Mulvaney, after leaving Congress to serve as 
the Director of the Office of Management and Budget, said 
something that illustrated one aspect of the problem: Be told 
an American Bankers Association conference that ``[w]e had a 
hierarchy in my office in Congress, [i]f you're a lobbyist who 
never gave us money, I didn't talk to you. If you're a lobbyist 
who gave us money, I might talk to you.''\14\
---------------------------------------------------------------------------
    \11\ Karl Evers-Hillstrom, Lobbying Spending Reaches $3.4 Billion 
in 2018, Highest in 8 Years, Ctr. for Responsive Pol.: Open Secrets 
News (Jan. 25, 2019). https://www.opensecrets.org/news/2019/01/
lobbying-spending-reaches-3-4-billion-in-18 [https://perma.cc/RKE9-
WZ5K].
    \12\ See, Top Spenders, Center for Responslve Pol.: OpenSecret, 
https://www .opensecrets.org/federal-lobbying/top-spenders?cycle=2019 
[https://perma.cc/J7VK-YKZH].
    \13\ See, e.g., Corynne Cirilli, The U.S. Chamber of Commerce Might 
Not Be What You Think, Vox Media: Racked (Oct. 2, 2017), https://
www.racked.com/2017/10/2/16370014/us-chamber-commerce-cxplainer 
[https://perma.cc/7UVQ-GE7F] (``Deferring to the goals of its large 
corporate backers, [CEO and then-president Tom] Donohue vowed to get 
the Chamber involved in `many important political battles' in 
Washington. And climate was one of the first things on his list.' '').
    \14\ Aaron Blake, Trump's Rumored Next Chief of Staff Mick Mulvaney 
Admits to Selling Access a Congressman, Wash. Post (Apr. 25, 2018), 
https://www.washingtonpost.com/news/the-fix/wp/2018/04/25/trumps-
rumored-next-chief-of-staff-mick-mulvancy-admits-to-selling-access-a-
congressman/ [https://perma.cc/9R7-WATW].
---------------------------------------------------------------------------
    Which takes us to the next problem: Corporate spending in 
elections. Gone are the days when the problem was trickles of 
corporate money flowing from corporate political action 
committees (``PACs'') and lobbyists' checkbooks into 
candidates' campaign war chests. Tn the wake of the Supreme 
Court's infamous Citizens United decision,\15\ corporate 
interests have flooded huge sums of money into electioneering 
and advocacy groups, often anonymizing themselves in the 
process, and used this flotilla of front groups to sway 
election results. In the 2012 Federal election cycle 
immediately following Citizens United, spending by these so-
called ``outside'' groups surged to more than triple their 
political spending from the cycle before.\16\ By 2016, outside 
groups would spend over $1.4 billion in American election.\17\ 
Today, in major elections around the country outside groups 
often outspend the actual candidates: In 2018, outside groups 
spent more than the candidates campaigns in twenty-eight 
different Federal races,\18\ and in Indiana during the last 
election cycle dark-money and outside groups outspent the U.S. 
Senate candidates by nearly $35 million.\19\ You don't spend 
this kind of money for long if you are not getting results.
---------------------------------------------------------------------------
    \15\ Citizens United v. FEC, 558 U.S. 310 (2010).
    \16\ See, Outside Spending by Cycle, Excluding Party Committees, 
Ctr. for Responsive PoL.: OpenSecrets, https://www.opensecrcts.org/
outsidespending/index.php?filtertype.A [https://perma.cc/957L-NK2L].
    \17\ Robert Maguire, $1.4 Billion and Counting in Spending by Super 
PACs, Dark Money Groups, Ctr. for Responsive PoL.: OpenSecrets News 
(Nov. 9 2016). https://www .opensecrets.org/news/2016/11/1-4-billion-
and-counting-in-spending-by-super-pacs-dark-money-groups/ [https://
perma.cc/t266-5PJD].
    \18\ Races in Which Outside Spending Exceeds Candidate Spending, 
2018 Election Cycle, Ctr. for Responsive PoL.: OpenSecrets News, 
https://www.opensecret.org/outsidespending/outvscand.php?cycle=2018 
[https://perma.cc/GW3U-XQD4].
    \19\ Compare Summary Spending. Ctr. for Responsive PoL.: 
OpenSecrets, https://www.opensecrets.org/races/
summary?cycle=2118&id=INS1 [https://perma.cc/3LQR-DHRG], With Outside 
Spending, Ctr. for Responsive Pol.: OpenSecrets, http://
www.opensecrets.org/races/outside-spending?cycle=20l8&id=INSI&spec=N 
[https://perma.cc/4T4U-JPSP).
---------------------------------------------------------------------------
    Much of this spending is ``dark money''--funding that 
cannot be traced to actual donors. In the decade since Citizens 
United, groups that don't disclose their donors have spent 
nearly $1 billion in elections, compared to only $129 million 
over the previous decade.\20\ This staggering figure does not 
even include money spent on ``issue ads,'' which are often just 
thinly veiled political attack ads, but are not reported to the 
Federal Election Commission.
---------------------------------------------------------------------------
    \20\ Kurl Ever-Hillstrom et al., More Money, Less Transparency: A 
Decade Under Citizens United, Ctr. for Responsive PoL.: OpenSecrets 
News (Jan. 14, 2020), https://www .opensecrets.org/news/reports/a-
decade-under-citizens-united [https://perma.cc/9CF8-E5VA].
---------------------------------------------------------------------------
    Although the Citizens United decision imaginatively 
presumed a campaign finance system with ``effective 
disclosure,''\21\ corporate interests quickly exploited 
loopholes to keep their spending anonymous, and the Court has 
conspicuously failed to police its supposed ``effective 
disclosure.'' Three loopholes have been particular favorites. 
Internal Revenue Code 501(c)(4) ``social welfare'' 
organizations have been allowed to spend on political 
altivities, but need not disclose their donors to the 
public.\22\ Shell corporations (e.g., limited liability 
corporations that obscure their true beneficial owners) \23\ 
are a simple tool to hide donor identities. And donor-directed 
trusts have been subverted into massive laundering shops that 
strip donor identities away from contributions to politically 
active non-profits.\24\ Because corporate brands and 
reputations are precious commodities, a broad array of trade 
associations, think tanks, and advocacy groups insulates 
corporations from the dirty practices and unpopular purposes of 
this vast new enterprise.
---------------------------------------------------------------------------
    \21\ Citizens United v. FEC, 558 U.S. 310, 370 (2010).
    \22\ See 26 U.S.C . 6033(a)(l) (2018); 26 C.F.R. l.50l(c)(4)-
l(a)(2)(i) (2019); see also Ciara Torres-Spelliscy, Hiding Behind the 
Tax Code, the Dark Election of 2010 and Why Tax-Exempt Entities Should 
Be Subject to Robust Federal Campaign Finance Disclosure Laws, 16 
Nexus: Chap. J.L. & Pol'y 59, 60 (2011) (``One way that for-profit 
corporations can throw their support behind, or undermine, a particular 
candidate after Citizens United is by donating money to a non-profit, 
which then, in turn, pmchases a political ad. Under current tax law, 
for-profit political spending through non-profits such as social 
welfare organizations organized under Internal Revenue Code (IRC) 
section 50l(c)(4) is undetectable by the public.'').
    \23\ Richard Briffault, Updating Disclosure for the New Era of 
Independent Spending, 27 J.L. & Pol. 683, 708 (2012) (arguing that 
``[t]he real disclosure issue arises when a 501(c)(4) social welfare 
organization, 50l(c)(6) trade association, or Super PAC reports 
donations from a dummy or shell corporation or LLC which gets its funds 
from one or a small number of shareholders, or from a nonprofit that 
does not have a mass Membership base but serves primarily as a vehicle 
for pooling funds from a small number of large donors and channeling 
them to independent spending committees'').
    \24\ Donors Trust is one of these groups, for example, See Andy 
Kroll, Exposed: The Dark Money ATM of the Conservative Movement, Mother 
Jones (Feb. 5, 2013), https://www .motherjones.com/politics/2013/02/
donors-trust-donor-capital-fund-dark-money-koch-bradley-devos/ [https:/
/perma.cc/S9M3-N7YC] (``Donors Trust is a so-called `donor-advised 
fund,' a breed apart from a family foundation like, say, the Lynde and 
Harry Bradley Foundation, which helped build the conservative movement 
over decades with donations totaling tens of millions of dollars. The 
people who donate to Donors Trust don't get final say over how their 
money isspent. But they get to recommend where their cash goes, and in 
exchange for giving up some
                                                                        
         Continued
control, they get a bigger tax write-off than they would with a family 
foundation. (And those who wish it get anonymity.)'').
---------------------------------------------------------------------------
    At the heart of this is money, but money alone is not the 
entire danger. As any politician can tell you, with the ability 
to spend millions of dollars in elections comes the ability to 
threaten or promise such expenditures. With the ability to 
spend millions of dollars anonymously, the menace of such 
threats darkens. Sometimes the threats or promises might be 
general and public; \25\ but the greatest danger of corruption 
comes from threats or promises made covertly. The threat is 
real--a massive barrage of anonymous campaign spending in the 
waning days of a campaign can leave voters with no information 
about who is making the attack and the target with no time to 
respond. An early barrage can ``define'' (read, mercilessly 
smear) a candidate before his or her campaign even gets up and 
running. So threats are credible, and covert threats and 
acquiescence is the very definition of corruption.
---------------------------------------------------------------------------
    \25\ See, Nicholas Confessore, Koch Brothers' Budget of $889 
Million for 2016 Is on Par With Both Parties' Spending, N.Y. Times 
(Jan. 26, 2015), https://www.nytimes.com/2015/01/27/us/politics/kochs-
plan-to-spend-900-million-on-2016-campaign.html [https://perma.cc/YD6E-
8AJ5].
---------------------------------------------------------------------------
    Dark money fouls political debate, as well. From the 
shelter of anonymity, corporate interests can without 
accountability propagate a ``tsunami of slime'' \26\--the 
manufactured front group bears the onus for the smears and 
attacks, and can be disposed of like Kleenex.\27\ And of course 
if just the threat of a slimy political attack is successful, 
it saves the special interest from actually having to spend the 
money. Worse, it leaves the public unaware that anything went 
on behind the scenes.
---------------------------------------------------------------------------
    \26\ Joe Hagan, The Coming Tsunami of Slime, N.Y. Mag. (Jan. 20, 
2012), http://nymag.com/news/features/negative-campaigning-2012-1/ 
[http://perma.cc/U2HR-HN8C].
    \27\ See, id.; Sheldon Whitehonuse, The Many Sins of ``Cititzens 
United,'' Nation (Sept. 24, 2015), https://www.thenation.com/article/
archive/the-many-sins-of-citizens-united/ [https://perma.cc/W3WU-CH8].
---------------------------------------------------------------------------
    The policy result of unlimited special-interest spending 
power is unsurprising: A powerful political current bends 
elected officials toward the will of the special interests, 
even against the will of their constituents.\28\ This weakens 
the political system's response to the general population, and 
skews political response toward wealthy interests. Empirically, 
one study found:
---------------------------------------------------------------------------
    \28\ See, e.g., Martin Gilens, Afflulince and Influence: Economic 
Inequality and Polical Power in America 70-123 (2012) (explaining that 
the country's policymnkers respond almost exclusively to the 
preferences of the economically advantaged); see also Lawrence Lessig, 
Republic, Lost: How Money Corrupts Congress--and a Plan To Stop It 
1143-47 (2011) (noting that dependency donors cause Congress to spend 
more time on issues that matter to their funders than to the general 
public).

        [T]he views of constituents in the upper third of the income 
        distribution received about 50% more weight than those in the 
        middle third, with even larger disparities on specific salient 
        roll call votes. Meanwhile, the views of constituents in the 
        bottom third of the income distribution received no weight at 
        all in the voting decisions of their Senators.\29\
---------------------------------------------------------------------------
    \29\ Larry M. Bartels, Unequal Democracy: The Political Economy of 
the New Gilded Age 253-54 (2008).

    The problem is not just in Congress. The ability of big 
interests to deploy unlimited money from behind dark-money from 
groups into presidential races has similar effects.\30\ But 
much of the corporate political effort is down at the executive 
agency level. Corporations have grown adept at capturing 
regulatory agencies.\31\ This involve one amount of high-
powered agency lobbying, and some amount of simply outgunning 
ill-funded public interest advocates in administrative 
procedures but more often than npt it involves ending industry 
personnel to embed with regulators--the ``revolving door.'' 
According to an analysis by ProPublica and Columbia Journalism 
Investigations the Trump administration has brought into 
official positions at least 281 former corporate lobbyists, 
just through October 2019.\32\ That number increases when one 
includes the corporate executives embedded in the Trump 
administration who may not have technically lobbied for their 
company but nontheless are motivated to influence outcomes for 
their industry.
---------------------------------------------------------------------------
    \30\ See, e.g., Robert Maguire, GOP Donors Too ``Embarrassed'' to 
Publicly Support Trump Gave Millions to Dark Money Group, Ctr. for 
Responsive Pol.: OpenSecrets News (Mar. 6, 2018), https://
www.opensecrets.org/news/2018/03/big-revenues-for-group-providng-cover-
for-gop-donors-too-embarrassed-to-publicly-support-trump-in-2016/ 
[https://perma.cc/RV7L-5Z2A) (reporting that a dark money group ``spent 
$45 million from the run-up to the 2016 presidential election into the 
early days of President Trump's administration'').
    \31\ See J. Jonas Anderson, Court Capture, 59 B.C. L. Rev. 1543, 
1555 (2018) (arguing that ``[w]hile capture can occur through 
corruption, it can also happen in less obvious ways, such as when a 
regulator receives a job offer from a company which he or she 
regulates, or through a `revolving door' between the agency and the 
regulated industry'').
    \32\ David Mora, We Found a Staggering 281 Lobbyists Who've Worked 
in the Trump administation, ProPublica (Oct. 15, 2019), https://
www.propublica.org/articlc/we-found-a-staggering-281-lobbyists-whove-
worked-in-the-trump-administration [https://perma.cc/SCE8-NVSV3].
---------------------------------------------------------------------------
    The result has been an unprecedented capture of regulatory 
agencies by the interests they should be regulating.\33\ The 
Environmental Protection Agency (``EPA'') under the Trump 
adminstration, for example, bas been overrun with officials 
tied closely to polluting industries. Former EPA Administrator 
Scott Pruitt rose to political power by raising funds for oil 
and gas industry groups.\34\ Pruitt had demonstrated an unusual 
willingness to do the industry's bidding; in one instance, he 
put fossil fuel industry text verbatim onto his official 
Oklahoma Attorney General letterhead and submitted it to the 
EPA.\35\ Later, as EPA Administrator, Pruitt could do the 
industry's bidding directly, without need for such subterfuge. 
Andrew Wheeler, Pruitt's successor as Administrator, had been a 
leading lobbyist for the coal industry.\36\ Trump's first head 
of the EPA Office of Air and Radiation, Bill Wehrum, gained 
prominence by helping build and run an array of fossil fuel 
industry trade associations and front groups.\37\
---------------------------------------------------------------------------
    \33\ See, Lindsey Dillon et al., The Envornmental Protection Agency 
in the Early Trump Administration Environmental Protection Agency in 
the Early Trump Administration, 108 AM. J. Pub. Health 589, 589 (2018), 
https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304360 [https:/
/perma.cc/GQX6-DXRV] (explaining that an agency is effeclively captured 
by the private interests it regulates when its `` `regulation is . . . 
directed away from the public interest and toward the interest of the 
regulated industry' by `intent and action' of industries and their 
allies'') (quoting Daniel Carpenter, Preventing Regulatory Capture: 
Special Interest Infuence and How to Limit It 73 (2014)).
    \34\ See, Andrew Perez & Margare1 Sessa-Sawkins, Conservative Group 
Led by EPA Chief Pruitt Received Dark Money to Battle Environmental 
Regulations, Fast Co. (June 7, 2017), https://www.fastcompany.com/
4028688/conservative-group-led-by-epa-chief-pruitt-received-dark-money-
to-battle-environmental-regalations [https://perma.cc/8O8Z-7UEW] 
(reporting that ``[a]n organization once led by [Scott Pruitt] raised 
more than $750.000 from conservative dark money groups to battle 
Federal regulations, including officials at the agency he now leads'').
    \35\ See, Letter from E. Scott Pruitt. Attorney Genernl, Oklahoma, 
to Lisa Jackson, Administration, U.S. Environmental Protection Agency 
(Oct. 12. 2011). https://www.documentcloud.org/documents/3301387-Draft-
and-Final-Letters-to-EPA-From-Devon-Energy.html [https://perma .cc/
9JSM-PL9J]; E-mail from William F. Whitsitt. Executive Vice President 
of Public Affairs, Devon Energy Corp., to Pallick Wyrick, Office of the 
Attorney General, Oklahoma (Sept. 2. 2011, 2:55 p.m.) https://
www.documentcloud.org/documents/3301387-Draft-and-Final-Letters-to-EPA-
From-Devon-Energy.html [https://perma.cc/9JSM-PL9J] (attaching draft 
version of letter to EPA).
    \36\ See, Nihal Krishan, Andrew Wheeler's Long History With the 
Energy Sector, Ctr. for Responsive Pol.: OpenSecrets News (July 10, 
2018), https://www.opensecrers.org/news/2018/07/andrew-wheeler-
longtime-coal-lobbyist/ [https://perma.cd/NTR8-KECF]' (discussing how 
Wheeler became ``a lobbyist for the law firm Faegre Baker Daniels, 
where he represented energy companies such as coal producer Murray 
Energy, which was his best-paying client. The coal-mining company paid 
his firm between $160,000-$559,000 annually [from 2009 through 2017, 
according to CRP's records. Murray Energy is privately owned by Robert 
Murray, whose company donated $300,000 to President Trump's 
inauguration.'').
    \37\ See, Letter from Senator Sheldon Whitehouse, Senator Thomas R. 
Carper, Ranking Member, U.S. Senate Committee on Environment and Public 
Works, and Rep. Frank Pallone, Jr., Chair, U.S. House Committee on 
Energy and Commerce, to Charles Sheehan, Acting Inspector General, U.S. 
Environmental Protection Agency, at 2 n.6 (Feb. 21, 2019), https://www 
.whitehouse.senate.gov/imo/media/doc/20190902-
21%20Wehrum%20Letter%20to%20EPA%20IG
%20final.pdf [https://perma.cc/9SA7-GNP7] (explaining that one of 
Wehrum's former clients, the Utility Air Regulatory Group, ``is not an 
incorporated entity and does not appear to have a staff, physical 
location, or presence of any sort outside of Hanton & Williams. Its 
membership and decision-making processes appear opaque, and it has been 
described as `a front group of convenience [that] allows individual 
electric utility companies to shield their names and anti-public health 
crusades from public awareness.'' (quoting John Walke, Is Your Power 
Company Fighting in Court Against Stafeguards From Mercury and Toxic 
Air Pollition? Nat. Res. Def. Council (May 25, 2012), https://
www.nrdc.org/experts/john-walke/your-power-company-fighting-court-
against-safe-guards-mercury-and-toxic-air [https://perma.cc/W7YW-
K35K])).
---------------------------------------------------------------------------
    Former oil lobbyist David Bernhardt serves as Secretary of 
the Department of the Interior, an agency charged with 
administering the bulk of Federal lands.\38\ In that position, 
Bernhardt has a central role administering oil and gas leasing, 
offshore drilling, and areas of policy of interest to the oil 
and gas industry. Bernhardt and his predecessor, Ryan Zinke, 
have helped to open massive tracts of Federal land to oil and 
gas development during their tenures.\39\ They have also 
overseen suspicious delays in siting New England offshore wind 
energy projects-projects that would displace gas-fired electric 
generation in the region.\40\
---------------------------------------------------------------------------
    \38\ See, Anthony Andragna, Senate Confirms Bernhardt To Head 
Interior, Politico (Apr. 11, 2019), https://www.politico.com/story/
2019/04/11/david-bernhardt-secretary-interior-department-1345662 
[https://perma.cc/66HE-L2KN] ``Bernhardt currently acting secretary, 
will replace Ryan Zinke, who left Interior in January in the midst of 
several ongoing ethical in investigations. Bernhardt won bipartisan 
backing from the chamber despite concerns that he has
                                                                        
         Continued
conflicts of interests related to past lobbying clients, criticism that 
he failed to keep adequate records, and worries about the department's 
plans to expand offshore drilling along the Atlantic and Pacific 
coasts.'').
    \39\ See, e.g., Coral Davenport, Top Leader at Interior Dept. 
Pushes a Policy Favoring His Former Client, N.Y. Times (Feb. 12, 2019), 
https://www.nytimes.com/2019/02/12/climate/david-bemhardt-endangered-
species.html [https://perma.cc/3D4C-KNSN] (``As a lobbyist and lawyer, 
Dnvid Bernhardt fought for years on behalf of a group of California 
farmers to weaken Endangered Species Act protections for a finger-size 
fisb, the delta smelt, to gain access to irrigation water. As a top 
official since 2017 at the Interior Department, Mr. Bernhardt has been 
finishing the job: He is working to strip away the rules the farmers 
had hired him to oppose.'').
    \40\ See, Chris Martin & Jennifer A. Dlouhy, Trump Delay Casts 
Doubt on First Major U.S. Offshore Wind Farm, Bloomberg News (Aug. 10, 
2019), https://www.bloomberg.com/oews/articles/2019-08-09/u-s-is-said-
to-extend-review-of-first-major-offshore-wind-farm [https://perma.cc/
39VR-QM7R] (reporting that ``[t]he Trump administration cast the fate 
of the nation's first major offshore wind farm into doubt by extending 
an environmental review for the $2.8 billion Vineyard Wind project off 
Massachusetts'').
---------------------------------------------------------------------------
    The Founders would likely have been astounded that such a 
commanding political force arose in our Republic, exerting such 
control over our executive and legislativ branches. Industry 
lobbying distorts legislative outcomes. Post-Citizens United 
dark-money election spending constricts Ame1ica's political 
aperture. Regulatory capture in the Trump administration has 
spread corruption widely through government agencies. But the 
most coveted prize, tbe pearl beyond price of influence-
seeking, lies in the courts.

III. The Corporate Influence Machine Targets Article III Courts

    Courts set rules. Federal courts decide what the 
Constitution means. Federal courts decide how laws are applied. 
Federal courts set the ground rules for challenges to 
legislation; they set rules for executive agency process and 
review; and they set rules that govern commercial and political 
activity.
    The prospect of resetting all those rules to advance 
systematically one's own power and position makes courts an 
alluring target for the influence machine. At the same time, 
because so many judicial practices and principles are designed 
to keep courts honest and independent, they are a difficult 
target. The stalking and capture of the courts had to be 
measured and slow. In 1971, prominent corporate lawyer and 
future Supreme Court Justice Lewis Powell wrote a secret memo 
to an official at the U.S. Chamber of Commerce. Powell warned 
that ``the American economic system''--by which he seemed to 
mean corporate America--``is under broad attack'' from 
academics, the media, leftist politicians, and other 
progressives.\41\ To counter the progressive spirit that had 
delivered the New Deal and Great Society, Powell wrote, it was 
time for an unprecedented influence campaign on the part of 
corporate America. He advised:
---------------------------------------------------------------------------
    \41\ Confidential Memorandum from Lewis F. Powell Jr., to Eugene B. 
Snydor, Jr., Chair, Education Committee, U.S. Chamber of Commerce 1 
(Aug. 23, 1971), https://scholarlycommons .law.wlu.cdu/cgi/
viewcontent.cgi?article=1000&context=powellmemo [https://perma.cc/5Q9B-
RFTX].

        [I]ndependent and uncoordinated activity by individual 
        corporations, as important as this is, will not be sufficient. 
        Strength lies in organization, in careful long-range planning 
        and implementation, in consistency of action over an indefinite 
        period of years, in the scale of financing available only 
        through joint effort, and in the so political power available 
        only through united action and national organizations.\42\
---------------------------------------------------------------------------
    \42\ Id. at 11.

    Corporate forces followed this advice, and today we see how 
much the ``political power'' made available through ``united 
action'' has delivered in the executive and legislative 
branches. Powell also flagged the value of pro-corporate 
``activist'' judges to shape the courts and the law, and slowly 
but surely corporate forces began to reshape our judiciary. 
Over many patient year they produced not only pro-corporate, 
anti-regulatory judges and doctrine, but a coordinated array of 
front groups set up to effect this infiltration. Behind this 
network of front groups lurks a network of corporate, right-
wing donors who secretly fund this ``united action'' in the 
judiciary.\43\
---------------------------------------------------------------------------
    \43\ See, Jason Zengeric, How the Trump Administration Is Remaking 
the Courts, N.Y. Times (Aug. 22, 2018). https://www.nytime.com/2018/08/
22/magazine/trump-remakng-courts-judiciary.html [https://perma.cc/W598-
ZS9B] (arguing that ``even circuits that are decidedly liberal are 
undergoing significant changes'' and that ``a radically new Federal 
judiciary could be with us long after Trump is gone'').
---------------------------------------------------------------------------
    There have long been competing philosophies of adjudication 
and legal analysis, a debate reflected over decades in 
different judicial philosophies from Republican and Democratic 
presidents' court nominees. This exercise was different. This 
was about winning, not about theories. Tellingly, the record of 
the many ``conservative'' wins under Chief Justice Roberts in 
the Supreme Court shows more often that conservative entities 
are the victors than that conservative judicial principles are 
followed.\44\ The donors behind the scheme want victories and 
are not fussy about philosophy.
---------------------------------------------------------------------------
    \44\ See, Sheldon Whitehouse, A Right Wing Rout: What the ``Robert 
Five'' Decisions Tell Us About the Integrity of Today's Supreme Court, 
Am. Const. Soc'y.: Issue Brief (Apr. 2019), https://www.acslaw.org/wp-
content/uplouds/2019/04/Captured-Court-Whitehouse-IB-Final.pdf [https:/
/perma.cc/H5UC-NQF9].
---------------------------------------------------------------------------
    It is slowly becoming clear how the so-called conservative 
legal movement has been secretly bankrolled by corporate 
interests which benefit from that legal movement. It is even 
sometimes frankly admitted. Describing his efforts to stock the 
Federal judiciary, Donald McGahn, the former White House 
Counsel and early architect of the Trump administration's 
judicial selection efforts, did not even try to hide the 
connection: ``There is a coherent plan here where actually the 
judicial selection and the deregulatory effort are really the 
flip side of the same coin.'' \45\ In other words, the ``plan'' 
is to groom and select judges who will then support the 
Republican political effort to roll back unwelcome laws passed 
by Congress and unwelcome regulations developed by independent 
agencies.
---------------------------------------------------------------------------
    \45\ Robert Barnes & Steven Mufson, White House Counts on Kavanaugh 
in Battle Against ``Administrative State'', Wash. Post (Aug. 12, 2018), 
https://www.washingtonpost.com/politics/courts_law/brett-kavanaugh-and-
the-end-of-the-regulatory-state-as-we-know-it/2018/08/12/22649a04-9bdc-
11e8-8d5c-c6c594024954_story.html [https://perma.cc/6SM7-QXNX].
---------------------------------------------------------------------------
    The influence machine's efforts in the Federal judiciary 
are particularly pernicious for government. First, unlike 
legislators and political appointees, Federal judges receive 
lifetime appointments. Successfully capturing a judicial seat 
can reward the capturer for decades,\46\ and popular umbrage 
cannot ``throw the bum out'' in the next election.
---------------------------------------------------------------------------
    \46\ See, U.S. Const. Art. III, Sec. 1 (providing for lifetime 
tenure of Federal judges).
---------------------------------------------------------------------------
    Second, in a captured court, strategic advances can be won 
deep in the weeds of jargon and theory, where the public is 
less likely to appreciate the ultimate impact; judicial 
decisions expanding the ``unitary executive'' theory \47\ or 
limiting Auer \48\ and Chevron \49\ deference to administrative 
agency expertise are not obvious blows to the environment or 
public health. Mischief can be done outside the spotlight of 
popular attention.
---------------------------------------------------------------------------
    \47\ See, Ian Millhiser, The Supreme Court Will Decide If Trump Can 
Fire the CFPB Director. The Implications Are Enormous, Vox (Oct. 18 
2019), https://www.vox.com/policy-and-politics/2019/9/18/20872236/
trump-justice-department-supreme-court-cfpb-unitary-excecutive [https:/
/perma.cc/2SAG-6GDDV].
    \48\ Auer v. Robbins. 519 U.S. 452, 461 (1997).
    \49\ Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 
U.S. 837, 842 (1984).
---------------------------------------------------------------------------
    Third, special interests can ask captured courts to do 
things Republican legislators wouldn't dare vote for--like 
allowing unlimited and ultimately anonymous money into 
politics.\50\ Courts are designed to make unpopular decisions 
in the service of justice; a captured court can deliver 
unpopular decisions in the service of politics.
---------------------------------------------------------------------------
    \50\ See, e.g., Brief for U.S. Chamber of Commerce as Amicus Curiae 
Supporting Appellant, Citizens United v. FEC, 558 U.S. 310 (2010) 
(acknowledging that ``immensely wealthy individuals play a significant 
role in our political process'' and asking the Court to allow 
``corporations to spend freely on independent candidate advocacy'').

        Finally, courts have traditionally been viewed as mostly 
        apolitical--neutral arbiters of law and fact.\51\ Accordingly, 
        the political branches have treated them with deference, 
        largely leaving it to the judiciary to set its own ground 
        rules. As a result, the courts, and most notably the Supreme 
        Court, operate in unusual secrecy, protected by a veneer of 
        neutrality.
---------------------------------------------------------------------------
    \51\ See, e.g., The Federalist No. 78 (Alexander Hamilton) (``The 
judiciary has no influence over either the sword or the purse, no 
direction either of the strength or of the wealth of the society, and 
can take no active resolution whatever. It may be truly said to have 
neither force nor will, but merely judgment.'').
---------------------------------------------------------------------------

                  IV. The Apparatus of Capture

    To accomplish the capture effort, special interests and 
their sophisticated teams of lawyers and political operatives 
have systematically developed an apparatus whose purpose is 
first to influence the selection and confirmation of judges, 
and then to influence the judges' decisions in the courts.\52\ 
This apparatus is most visible at the Supreme Court, but it 
operates in lower courts, too. Here is its battle plan:
---------------------------------------------------------------------------
    \52\ Press Release, Brennan Center, Three Nominations Reveal 
Contrasting Influence of Interest Groups in High Court Nomination 
Process (Jan. 26, 2006), https://www.brennancenter.org/our-work/
analysis-opinion/three-nominations-reveal-countrasting-influence-
interest-groups-high-court [https://perma.cc/564L-WQQE] (finding that 
``interest group spending on television ads and other lobbying tools 
can have a potent effect on who becomes a judge in America'').

      Select carefully vetted judges who embrace the desired 
pro-corporate world view.\53\ This is done by giving a controlling role 
in judicial selection to an organization to which the interests give 
millions of dollars (the Federalist Society);
---------------------------------------------------------------------------
    \53\ See, e.g., Colby Itkowitz, 1 in Every 4 Circuit Court Judges 
Is Now a Trump Appointee, Wash. Post (Dec. 21, 2019), https://
www.washingtonpost.com/politics/one-in-every-four-circuit-court-judges-
now-a-trump-appointee/2019/12/21/d6fale98-2336-11ea-bed5-880264cc91a9-
story.html [https://perma.cc/3TJ6-WQK] (``The three circuit court that 
have flipped to Republican majorities this year have the potential to 
not only change policy but also benefit Trump professionally and 
politically. The 2nd Circuit, with its new right-leaning majority, will 
decide whether to rehear a case challenging Trump's ability to block 
critics on Twitter as well as one regarding Trump's businesses 
profiting while he's in office. The 11th Circuit, which handles appeals 
from Georgia, Florida and Alabama, is set to take up several voting 
rights cases.''); Robert O'Harrow, Jr. & Shawn Boburg. A Conservative 
Activist's Behind-the-Scenes Campaign To Remake the Nation's Courts, 
Wash. Post (May 21, 2019), https://www.washingtonpost.com/graphics/
2019/investigations/leonard-leo-federalists-society-courts/ [https://
perma.cc/GS2H-ZLMU] (describing Federalist Society president Leonard 
Leo's role in selecting Neil Gorsuch and Bret Kavanaugh).
---------------------------------------------------------------------------
      Unleash millions in dark money supporting the nominee (or 
opposing him in Judge Merrick Garland's case).\54\ This is done through 
an organization (the Judicial Crisis Network (``JCN'')) that uses 
anonymous donations to fund political advertising campaigns for (or 
against) nominees;
---------------------------------------------------------------------------
    \54\ See, O'Harrow & Boburg. supra note 53 (noting the Judicial 
Crisis Network spent $10 million to support Supreme Court Justice Neil 
Gorsuch's confirmation after spending $7 mil1ion to block President 
Barack Obama's Supreme Court pick, Meuick Garland).
---------------------------------------------------------------------------
      With their judges in place, tee up strategic cases and 
inundate courts with amicus briefs-best understood as lobbying 
documents. This is done through a flotilla of closely related front 
groups. These front groups sometimes appear as the litigant, behind a 
plaintiff of convenience; and sometimes among a flotilla of ``amici 
curiae'' signaling in harmony how the influence machine wants the court 
to decide.\55\
---------------------------------------------------------------------------
    \55\ See, e.g., Brian R. Frazelle, Corporate Clout: As the Roberts 
Court Transforms, the Chamber Has Another Big Term. Const. Account 
Ability Ctr. (July 26 , 2017), https://www .theusconstitution.org/
think_think/corporate-clout/ [https://perma.cc/VKM-9-TUYE] (noting that 
in the 2016-17 term, the U.S. Chamber of Commerce ``submitted friend-
of-the-court briefs in 15 cases . . . [a]nd in 12 of those case, or 
80%, the position advocated by the Chamber prevailed'').

It's quite an investment, but it has paid stunning dividends.
    The funding that fuels the judicial influence machine is 
difficult to expose because of its secrecy, but the 
coordination, tactics, and strategy of the influence machine 
are becoming less obscure. One case study is the outside 
spending group, JCN. According to tax filings, an unnamed donor 
gave $17 million to JCN to help block President Obama's 
nomination of Merrick Garland to the Supreme Court and support 
President Trump's nomination of Neil Gorsuch to that same 
vacancy.\56\ Then, in 2018, a donor--perhaps the same one--gave 
another $17 million to JCN to support the troubled nomination 
of Brett Kavanaugh.\57\ JCN received many more anonymous 
multimillion-dollar donations along the way. A sophisticated 
media relations campaign, orchestrated by a firm CRC Public 
Relations interconnected in the web of dark money groups, put 
those millions to work on political-campaign-style 
advertising.\58\
---------------------------------------------------------------------------
    \56\ See, Robert Maguire, Group That Spent Millions to Boost 
Gorsuch Also Paid Mysterious Inaugural Donor, Ctr. for Responsive Pol.: 
OpenSecret's New (May 16, 2018), https://www.opensecrets.org/news/2018/
05/group-that-spent-millions-to-boost-gorsuch-also-paid-mysterious-
inaugural-donor/ [https://perma.cc/M33S-9899].
    \57\ See, Anna Massaglia & Andrew Perez, Secretive Conservative 
Legal Group Funded by $17 Million Mystery Donor Before Kavanaugh Fight. 
Ctr. for Responsive Pol.: OpenSecrets News (May 17, 2018). https://
www.opensecrets.org/news/2019/05/dark-money-group-funded-by-17million-
mystery-donor-before-kavanaugh [https://perma.cc/E9AS-S763].
    \58\ See, Press Release, Judicial Crisis Network, Judicial Crisis 
Network Launches $10 Million Campaign To Preserve Justice Scalia's 
Legacy, Support President-Elect Trump Nominee (Jan. 9, 2017), https://
judicialnetwork.com/jcn-press-release/judicial-crisis-network-launches-
10-million-campaign-preserve-justice-sculias-legacy-support-president-
elect-trump-nominee/ [https://perma.cc/DN23-MXWT] (noting that JCN 
``expects to spend at least $10 miIlion to confirm the next justice . . 
. [and] CRC Public Relations--President Greg Mueller will spearhead 
communication and media strategy'').
---------------------------------------------------------------------------
    JCN is one of many groups working in close coordination. To 
understand that coordination let's visit one prominent 
individual: Federalist Society Co-Chair Leonard Leo.\59\ Prom 
his perch at the Federalist Society, Leo has been the lynchpin 
and chief strategist of the conservative legal movement's 
court-packing plan for the better part of two decades.
---------------------------------------------------------------------------
    \59\ See, Jonathan Swan & Alayna Treene, Leonard Leo to Shape New 
Conservative Network, Axios (Jan. 7, 2020), https://www.axios.com/
leonard-leo-crc-advisors-federalist-society-50d4d844-19a3-4eab-nf2b-
7b74f11617dlc.html (https://perma.cc/8RBG-CMVT) (noting that until 
recently, and for the period relevant to this Article, Leo served as 
the Federalist Society's Executive Vice President and that it has been 
reported that he has Limited his role in the Federalist Society in 
order to establish a new dark money operation focusing on the 
judiciary.
---------------------------------------------------------------------------
    The Federalist Society claim it is merely a not-for-profit 
group for like-minded aspiring lawyers eeking to discuss 
conservative ideas and judicial doctrine. The truth, however is 
more complicated. In effect, tbere are three incarnation of tbe 
Federalist Society. The first is perfectly appropriate: A 
debating society for conservatives at law schools and in legal 
communities across the country to discuss traditionally 
conservative judicial values, like originalism and the merits 
of limited government. The second, is familiar in Washington, 
DC: A think tank tbat attract big-name conservative lawyers 
scholars, politicians, and even Supreme Court Justices to 
events; that publishes and podcasts and that holds galas.\60\ 
The third role of the Federalist Society is the dangerous one: 
It is the vehicle for powerful interests seeking to reorder the 
judiciary by grooming, vetting, and selecting amenable 
judges.\61\
---------------------------------------------------------------------------
    \60\ See, 2019 National Lawyer Convention, Fed. Soc'y. (Nov. 2019), 
https://fedsoc.org/conferences/2019national-lawyers-convention [https:/
/perma.cc/SJ45-8HPE] (featuring Justices Gorsuch and Kavanaugh).
    \61\ See, Jason Zengerle. How the Trump Administration is Remaking 
the Courts, N.Y. Times Mag. (Aug. 22, 2018), https://www.nytimes.com/
2018/08/22/magazine/trump-remaking-courts-judiciary.html [https://
perma.cc/W598-ZS9B] (``Trump might not have known much nbout the law, 
but he needed . . . to create the impression that he would be reliable 
in terms of conservative judges, because that would calm down and 
consolidate a very large block of coalition.' That is, what mattered to 
the Federalist Society--and the Heritage Foundation--was that Trump 
take their advice on judicial nominees. In an interview with Breitbart 
in June 2016, Trump pledged, `We're going to have great judges, 
conservative. all picked by Federalist Society.' '').
---------------------------------------------------------------------------
    This Federalist Society role is the result of many years of 
work by Leo and his network of donors. As early as 2003, Leo 
was known in the Bush White House as the coordinator of ``all 
outside coalition activity regarding judicial nominations.'' 
\62\ In October 2006, Leo presented to students at the 
University of Virginia (``UVA'') School of Law an overview of 
the measures used to help confirm George W. Bush nominees John 
Roberts and Samuel Alito. According to an article about the UVA 
event, Leo's strategies included the following:
---------------------------------------------------------------------------
    \62\ O'Harrow & Boburg, supra note 53.

      ``Aggressive fundraising to hire a top media firm. About 
$15 million was spent for both confirmations on earned and paid media, 
telemarketing, and other grassroots mobilization
      ``Advance work recruiting more than 60 organizations to 
support the nomination and confirmation of a person committed to 
conservative priorities
      ``Polling to figure out what the American people thought 
the role of the court should be so that the message could be framed in 
a way that resonated with the public
      ``Preparation of background memos and briefing materials 
on every conceivable nominee
      ``Research into how Justices William Rehnquist and Sandra 
Day O'Connor affected the vote count in controversial areas of law
      ``A search of history to learn how controversial issue 
areas had been handled in earlier confirmations
      ``Publishing White papers to paint the ground favorably 
when it comes to the questions that are appropriate for a nominee to 
answer
      ``Training expert lawyers in how to talk to the media
      ``Holding dozens of background, off-the-record meetings 
with reporters to give them information about the nomination and 
confirmation process'' \63\
---------------------------------------------------------------------------
    \63\ See, Robin Cook, Confirmation of High Court Justices Akin to 
Political Campaign, Leo Says, Univ. of VA Sch. of L. (Oct. 2, 2006), 
https://www.law.virginia.edu/news/2006_fall/leo.html [https://perma.cc/
T35W-3AJV].

    This playbook is still in use today. In the spring of 2019, 
The Washington Post published an in-depth investigation of Leo 
and his present network of organizations.\64\ It is massive, 
secretive, and lavishly funded, and its purpose is to pack and 
influence the courts.\65\ As the Post found through public 
records and interviews, the groups in Leo's orbit work in close 
coordination and are linked through multiple vectors: Finances, 
board members, phone numbers, addresses, office support staff, 
and operational details.\66\
---------------------------------------------------------------------------
    \64\ See, See O'Harrow & Boburg, supra note 53.
    \65\ See id.
    \66\ See id.
---------------------------------------------------------------------------
    Anonymous funding is the lifeblood of this network and its 
judicial influence campaign. Between 2014 and 2017, Leo's 
nonprofits collected more than $250 million in dark-money 
donations.\67\ Secret donors providing money at that quarter-
billion-dollar scale obviously expect a robust return on their 
investment, and this money was used to carry out all manner of 
activities to achieve that return. The Post unearthed a list of 
clients of a conservative media relationsfirm outlining the 
network's role in the Garland and Gorsuch nomination battles:
---------------------------------------------------------------------------
    \67\ See id.

        Nine of the [Leo-affiliated] groups hired the same conservative 
        media relations firm, Creative Response Concepts, collectively 
        paying it more than $10 million in contracting fees in 2016 and 
        2017. During that time, the firm coordinated a months-long 
        media campaign in support of Trump's Supreme Court nominee, 
        Neil M. Gorsuch, including publishing opinion essays, 
        contributing 5,000 quotes to news stories, scheduling pundit 
        appearances on television and posting online videos that were 
        viewed 50 million times, according to a report on the firm's 
        website.\68\
---------------------------------------------------------------------------
    \68\ See id.

This description tracks closely the methods outlined by Leo 
years before at UVA.
    While the plan has been long in the making, in the Trump 
administration it has become open and obvious. As a Member of 
the Senate Judiciary Committee, I have seen the dark-money-
funded politicization of the judicial nomination and 
confirmation process emerge, climb to top political priority 
(it now dwarfs any legislative activity in the Senate), and pay 
remarkable dividends. According to an October 2019 analysis by 
the Senate Democratic Policy and Communications Committee, the 
Republican-controlled Senate had allowed less than one-sixth 
the number of votes on legislation and amendments compared to 
the Democratic-controlled House.\69\ Meanwhile, as of February 
2020, the Senate has confirmed 193 article III judges during 
the Trump administration, including fifty-one influential 
appellate judges--nearly as many as President Obama appointed 
in his eight-year presidency (fifty-five).
---------------------------------------------------------------------------
    \69\ Analysis on file with Democratic Policy and Communications 
Committee.
---------------------------------------------------------------------------
    The Federalist Society now counts eighty-five percent of 
the Trump administration's Supreme Court and circuit court 
nominees as members.\70\ In November 2019, at his first major 
public event since taking his seat on the Supreme Court bench, 
Justice Kavanaugh spoke to a high-priced Federalist Society 
gala fundraiser.\71\ Justice Kavanaugh thanked Federalist 
Society member and Trump White House Counsel Donald McGahn for 
his help during the confirmation process; \72\ McGahn once 
quipped that be had been ``in-sourced'' to the White House to 
deliver on the Federalist Society's priorities.\73\ Justice 
Kavanaugh appreciatively called McGahn his ``coach.'' \74\
---------------------------------------------------------------------------
    \70\ Statistic on file with Office of Senator Whitehouse.
    \71\  Adam Liptak. Kavanaugh Recalls His Confirmation at 
Conservative Legal Group's Annual Gala, N.Y. Times (Nov. 14, 2019), 
https://www.nytimes.com/2019/11/14/us/kavanaugh-federalist-society.html 
[https://perma.cc/Q5FD-6H97].
    \72\  Nina Totenberg, Kavanaugh Hailed at Federalist Society as 
Protesters Attempt Disruption, Nat'l. Pub. Radio (Nov. 15. 2019), 
https://www.npr.org/2019/11/15/79438921/kavanaugh-hailed-at-federalist-
society-as-protesters-attempt-disruption [https://perma.cc/BS9Q-ABEC].
    \73\  Lydia Wheeler, White House Lawyer: ``Completely False'' That 
Trump Outsources Judicial Selections, Hill (Nov. 17, 2017), https://
thehill.com/regulation/360981-white-house-lawyer-completely-false-that-
trump-outsources-judicial-selections [https://perma.cc/TH6X-PAG9].
    \74\  Robert Burnes & Ann E. Marimow, As Trump Cases Arrive, 
Supreme Court's Desire To Be Seen as Neutral Arbiter Will Be Tested, 
Wash. Post (Nov. 26, 2019), https://www.washington
post.com/politics/courts_law/as-trump-cases-arrive-supreme-courts-
desire-to-be-seen-as-neutral-arbiter-will-be-tested/2019/11/26/
1d186f92-106d-11ea-b0fc-62cc38411ebb_story.html [https://perma.cc/3EZ7-
8JLD].
---------------------------------------------------------------------------
    With vetted and selected judges in place comes the next 
step: Strategically guiding the Court to desired outcome. Again 
dark money plays a role: Over years, anonymously funded group 
have sprung up to serve this effort. One task is to seek out 
case with fact pattern that support arguments for changes in 
law the big interests desire, and then bring those cases before 
the Court. To get there, these legal organization recruit 
plaintiffs, usually with the offer of free services. 
(Ordinarily, in real litigation, the plaintiff selects the 
lawyer, not vice versa.)
    I saw this happen in a case I argued before the Supreme 
Court. The dark-money-funded Pacific Legal Foundation swept in 
from across the country and recruited a Rhode Island plaintiff, 
who agreed to let them bring this case before the Supreme 
Court.\75\ When the Court' decision ultimately did not get them 
the result they wished to achieve, they dropped him, and went 
on to other cases. Pacific Legal Foundation is still at it 
before the Court.\76\
---------------------------------------------------------------------------
    \75\ See Palazzolo v. Rhode lslnnd. 533 U.S. 606 (2001).
    \76\ In 2019, Pacific Legal Foundation represented the petitioner 
in Knick v. Township of Scott, 139 S. Ct. 2162 (2019) where the Supreme 
Court overruled precedent that required properly owners to seek 
compensation for state and local property takings in State courts 
before seeking compensation in Federal courts. Id. at 2179.
---------------------------------------------------------------------------
    Once one of these groups gets the case up before the Court, 
an armada of related amici curiae (``friends of then court'') 
sails in to echo and amplify the corporate message. Many of 
these amici are funded by the same donors.
    In recent amicu brief I wrote, I pointed out tbe common 
funding of many of the other amici in that very case, and how 
at least thirteen of those amici were funded by entities that 
also have funded the Federalist Society.\77\ The Center for 
Media and Democracy noted the brief and followed up with a more 
robust analysis--indeed a stunning analysis--finding that 
``sixteen right-wing foundations gave nearly $69 million to 
groups urging the Supreme Court to abolish the Consumer 
Financial Protection Bureau since 2014'' and that the same 
sixteen foundations had given over $33 million to the 
Federalist Society over the same period.\78\
---------------------------------------------------------------------------
    \77\ Brief for U.S Senators Sheldon Whitehouse, Richard Blumenthal, 
and Mazie Hirano as Amicus Curiae Supporting Respondent. Seila Law LLC 
v. Consumer Fin. Prot. Bureau, No. 19-7 (U.S. Jan. 22, 2020) https://
www.supremecourt.gov/DocketPDF/19/19-7/129418/2020012
211S258928_19-7%20Amici%20Brief.pdf [https://perma.cc/3DBS-GF6Q].
    \78\ Alex Kotch, Conservative Foundations Finance Push To Kill the 
CFPB, Ctr. for Media and Democracy: PR Watch (Feb. 13, 2020), https://
www.prwatch.org/news/2020/02/13540/
conservative-foundations-finance-push-kill-cfpb [https://perma.cc/P39U-
P8FG].
---------------------------------------------------------------------------
    Applying the ``united action'' campaign to the courts 
required a long and patient effort, but the end result of all 
this investment is profound. A small group of large donors is 
funding the vetting and selection of judges, and funding the 
campaigns for their confirmation, and funding the litigants who 
present cases to them, and funding a swarm of front-group amici 
who provide amplification of the donors' message and an 
illusion of broad support.

                    V. Results at the Court

    Mired in dark-money influence, the Supreme Court has become 
a reliable ally for corporate and Republican partisan 
interests. Professional observers know it. As renowned New York 
Times columnist Linda Greenhouse reluctantly concluded, it is 
``impossible to avoid the conclusion that the Republican-
appointed majority is committed to harnessing the Supreme Court 
to an ideological agenda.'' \79\ Her sentiment is not unique. 
Veteran court watcher Norm Ornstein has written that the 
Supreme Court ``is polarized along partisan lines in a way that 
parallels other political institutions and the rest of society, 
in a fashion we have never seen.'' \80\ The New Yorker's 
Jeffrey Toobin was blunt in an assessment of Chief Justice 
Roberts, comparing Justice Scalia, ``who has embodied judicial 
conservatism during a generation of service on the Supreme 
Court,'' with Chief Justice Roberts, who ``has served the 
interests, and reflected the values, of the contemporary 
Republican Party.'' \81\
---------------------------------------------------------------------------
    \79\ Linda Greenhouse, Polar Vision, N.Y. Times (May 28, 2014), 
https://www.nytimes.com/2014/05/29/opinion/greenhouse-polar-vision.html 
[https://perma.cc/E8VY-XR65].
    \80\ Norm Ornstein, Why the Supreme Court Needs Term Limits, 
Atlantic (May 22, 2014), https://www.theatlantic.com/politics/archive/
2014/05/its-time-for-term-limits-for-the-supreme-court/371415/ [https:/
/perma.cc/6U9E-6J4V].
    \81\ Jeffrey Toobin, No More Mr. Nice Guy, New Yorker (May 25, 
2009), https://www
.newyorker.com/magazine/2009/05/25/no-more-mr-nice-guy [https://
perma.cc/6NLN-TXCV].
---------------------------------------------------------------------------
    The hard proof is in the numbers. As I have documented, 
from the 2004 through 2017 Terms, the Roberts Court issued 
seventy-three five-to-four partisan decisions benefiting big 
corporate and Republican donor interests. By partisan, I mean 
that it was all Republican appointees making up the five. The 
benefits to Republican donor groups are not hard to discern. 
They include allowing corporate interests to spend unlimited 
money in elections, hobbling pollution regulations, enabling 
attacks on minority voting rights, curtailing labor's right to 
organize, and restricting workers' ability to challenge 
employers in court.\82\ In its 2018 Term, the Court added seven 
more of these five-to-four partisan decisions to this 
tally.\83\
---------------------------------------------------------------------------
    \82\ Whitehouse, supra note 44.
    \83\ See Niolsea v. Preap, 139 S. Ct. 954 (2019); Bucklew v. 
Precythe, 139 S. Ct. 1112 (2019); Lamps Plus, Inc. v. Varela, 139 S. 
Ct. 1407 (2019); Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 
(2019); Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 
(2019); Knick v. Twp. of Scott., 139 S. Ct. 2162 (2019); Rucho v. 
Common Cause, 139 S. Ct. 2484 (2019).
---------------------------------------------------------------------------
    In this run of now eighty partisan five-to-four cases (and 
counting), something else quite telling took place. The 
Republican majority routinely broke traditionally conservative 
legal principles, such as respect for precedent, ``minimalism'' 
in the scope of their decision, or ``originalist'' reading of 
the Constitution. The Justices in these bare partisan 
majorities even went on remarkable fact-finding expeditions, 
violating core traditions of appellate adjudication that leave 
fact-finding to lower courts.\84\ (It added no luster to this 
effort that the facts they found were false.) \85\ The 
consistent measure across these decisions is not traditional 
doctrines of conservative jurisprudence; it is the interests 
that win.
---------------------------------------------------------------------------
    \84\ Brief for Sen. Whitehouse et al., supra note 77.
    \85\ See, e.g., The Effects of Shelby County v. Holder, Brennan 
Ctr. for Justice (Aug. 6, 2018), https://www.brennancenter.org/our-
work/policy-solutions/effect-shelby-county-v-holder [https://perma.cc/
27MX-DMMB] (documenting new sate laws restricting voting rights after 
Shelby County); Richard L. Hasen, The Decade of Citizens United, Slate 
(Dec. 19, 2019),  https://slate.com/news-and-polilics/2019/12/citizens-
united-devastating-impact-american-politics.html [https://perma.com/
4DE8-VYXT] (documenting the effects of Citizens United on anonymous 
campaign spending despite the decision's endorsement of the value of 
disclosure requirements).
---------------------------------------------------------------------------
    A results-oriented judiciary is anathema to our Founders' 
vision. A judiciary independent of the political branches, and 
with justice as its end rather than political gains for 
factions, is fundamental to our constitutional democracy. As 
Montesquieu put it, ``There is no liberty, if the power of 
judging be not separated from the legislative and executive 
powers.'' \86\ But corporate and partisan special interests are 
purposefully eroding that fundamental ideal to win this array 
of victories, and the Court seems content to be shepherded down 
that path. Some of these victories go beyond donor interests 
just pocketing a win in a particular case; the most dangerous 
victories actually tilt the political or legal or regulatory 
playing fields in favor of the donor interests in ways that 
will enable streams of future victories.
---------------------------------------------------------------------------
    \86\ Charles de Montesquieu, The Spirit of the Laws (1748); accord 
The Federalist No. 78 (Alexander Hamilton).
---------------------------------------------------------------------------
    It is perhaps not a coincidence that polls show the 
public's faith in the courts receding. In one poll, only 
thirty-seven percent responded that they have ``a great deal'' 
or ``quite a lot'' of confidence in the Supreme Court.\87\ By 
seven to one, Americans have reported in polling the belief 
that they are less likely before the Justices of this Court to 
get a fair shot against a corporation compared to vice 
versa.\88\ That ought to be a hazard light flashing for the 
Court.
---------------------------------------------------------------------------
    \87\ Confidence in Institutions, Gallup (Feb. 29, 2020. 10:11 
a.m.), https://news.gallup.com/poll/1597/confidence-institutions.aspx 
[https://perma.com/CYM6-WN49].
    \88\  Mark Mellman, Winning Messages: On Judges, Guns and Owning 
the Constitution's Text, History & Values, Constitutional 
Accountability Ctr. 9 (Feb. 29, 2020, 10:24 a.m.), https://
www.theusconstitution.org/wp-content/uploads/2018/03/PUBLIC-Mellman-
CAC-Poll-Presentation.pdf [https://perma.cc/BA53-DNAE].
---------------------------------------------------------------------------

 VI. Proposed Solutions: Bringing Transparency to the Judiciary

    Millions of dollars in dark money have no business coursing 
through the judicial nomination and selection process, or 
funding litigants and so-called ``friend of the Court.'' All 
this coordinated, anonymous funding creates an odor of rot, and 
it risks lasting damage to the institution of the Court. 
Congress can take steps to stop the erosion of confidence and 
restore the Court to its proper, constitutionally prescribed 
lane. While some have called for dramatic and sweeping 
structural change--like imposing term limits, or adding seats 
to the Court--a logical first step is to shine the light of 
greater transparency and accountability into the Court.\89\
---------------------------------------------------------------------------
    \89\ See Supreme Court Justice Term Limits: Where 2020 Democrats 
Stand, Wash. Post https://www.washingtonpost.com/graphics/politics/
policy-2020/voting-changes/supreme-court-term-limit/ (http://perma.cc/
X7AU-WX95) (last visited Feb. 29, 2020) (showing that several 2020 
Presidential candidates support or are open to term limit for Supreme 
Court Justices); Burgess Everett & Marianne Levine, 2020 Dems Warm To 
Expanding Supreme Court, Politico (Mar. 18, 2019), https://
www.po1itico.com/story/2019/03/2020-democrats-supreme-court-1223625 
[https://perma.cc/6T65-B7JV] (stating that "[t]he surprising openness 
from White House hopefuls along with other prominent Senate Democrats 
to making sweeping change--from adding seats to the high court to 
imposing term limits on judges and more--comes as the party is eager to 
chip away at the GOP's growing advantage in the courts'').
---------------------------------------------------------------------------
    In the political branches, we require transparency as a 
safeguard. Congress and the Executive Branch have extensive 
reporting requirement: The Lobbying Disclosure Act provides 
insight into who is influencing the legislative and rulemaking 
processes; \90\ the Federal Election Campaign Act mandates 
public disclosures about political campaigns; \91\ and the 
Ethics in Government Act requires financial disclosure from 
officials.\92\
---------------------------------------------------------------------------
    \90\ Lobbying Disclosure Ac1 of 1995, 2 U.S.C. 1603(a)(I) (2018) 
(``No later than 45 days after a lobbyist first makes a lobbying 
contact or is employed or retained to make a lobbying contact, 
whichever is earlier, or on the first business day after such 45th day 
if the 45th day is not a business day, such lobbyist (or, as provided 
under paragraph (2), the organization employing such lobbyist), shall 
register with the Secretary of the Senate and the Clerk of the House of 
Representatives.''); Lobbying Disclosure Act of 1995, 2 U.S.C. 1602(10) 
(2018) (``The tenn `lobbyist' means any individual who is employed or 
retained by a client for financial or other compensation for services 
that include more than one lobbying contact, other than an individual 
whose lobbying activities constitute less than 20 percent of the time 
engaged in the services provided by such individual to that client over 
a 3-month period.'').
    \91\ Federal Election Campaign Act of 1971 (FECA), 52 U.S.C. 
30104(b)(1)-(8) (2018).
    \92\ Ethics in Government Act of 1978, 5 U.S.C. App. Sec. 10l(f) 
(2018).
---------------------------------------------------------------------------
    By comparison to th eother branches the judiciary is 
largely a black box. It's not just that hidden donor lurk 
behind amici seeking to influence courts, or that groups like 
JCN need not disclose the donors behind political campaigns for 
judges; loopholes also allow Supreme Court justices and Federal 
judges to avoid disclosing travel and hospitality perk. Judges 
are nominally covered by the Ethics in Government Act, but 
judicial disclosures as implemented by the regulations of the 
Judicial Conference, are the least comprehensive and 
effective.\93\ We would never have known of Justice Scalia's 
all-expenses-paid hunting vacation, except that he died on that 
vaca-tion so it made the news.\94\
---------------------------------------------------------------------------
    \93\ See generally Code of Judicial Conduct for U.S. Judges, Canon 
4 (Judicial Conference of the U.S. 2019).
    \94\ See Eric Lipton, Scalia Took Dozens of Trips Funded by Private 
Sponsors, N.Y. Times (Feb. 26, 2016) https://www.nytimes.com/2016/02/
27/us/politics/scalia-led-court-in-taking-trips-funded-by-private-
sponsors.html [https://perma.cc/J495-7X94).
---------------------------------------------------------------------------
    For a branch of government without either force or purse, 
for one that bases its authority on its legitimacy, it's a 
mess. If conflicts of interest lurk behind the millions of 
dollars in anonymous money, it could produce reputational 
crisis for the Court. Legislation that I propose would go a 
long way to protect against those potential conflicts through 
the sunlight of public disclosure. Not for nothing did Supreme 
Court Justice Louis Brandeis say that ``sunlight is the best 
disinfectant.'' \95\
---------------------------------------------------------------------------
    \95\ Louis D. Brandeis, What Publicity Can Do, Harper's Weekly 
(Dec. 20, 1913), https://louisville.edu/law/library/special-
collections/the-louis-d.-brandeis-collection/other-peoples-money-
chapler-v [https://perma.cc/2HYS-V8WE].
---------------------------------------------------------------------------
    It is hard to predict what true transparency would 
disclose, but the worst scenario is that a small cabal of 
special interest funders anonymously pays to (a) select the 
Justices, (b) campaign for their confirmation, (c) have cases 
strategically brought before the Court, (d) flood the Court 
with an echo chamber of scripted amici, and (e) fund elaborate 
travel and hospitality for the agreeable Justices. Ample 
evidence suggests the worst-case scenario may not be far from 
reality. So here are some proposed repairs for various danger 
areas.

                   A. Anonymous Amici Curiae

    Amicus curiae briefs, written by non-parties for the 
purpose of providing information, expertise, insight or 
advocacy, have surged in both volume and influence in the past 
decade. Supreme Court and circuit court opinions often adopt 
language and arguments from amicus briefs.\96\ During the 
Supreme Courts 2014 term, it received 781 amicus briefs, an 
increase of over 800% from the 1950s and a 95% increase from 
1995.\97\ From 2008 to 2013, the Supreme Court cited amicus 
briefs 606 times in 417 opinions.\98\
---------------------------------------------------------------------------
    \96\ See Paul M. Collins Jr., Pamela C. Corley, & Jesse Hamner, The 
Influence of Amicus Curiae Brieff on U.S. Supreme Court Opinion 
Content, 49 L. & Soc'y. Rev. 917. 917 (2015) (finding ``the justices 
adopt language from amicas briefs based primarily on the quality of the 
briefs argument, the level of repetition in the brief, the ideological 
position advocated in the brief, and the identity of the amicus'').
    \97\ Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. 
L. Rev. 1901, 1902 n.3 (2016).
    \98\ Id. at 1941.
---------------------------------------------------------------------------
    Anricus briefs are an increasingly powerful advocacy tool 
for special interest group. When those interest groups lobby 
Congress, they face stringent financial disclose requirements; 
\99\ no similar requirements exist for this form of judicial 
lobbying.
---------------------------------------------------------------------------
    \99\ Lobbying Disclosure Ace of 1995, 2 U.S.C. 1603(b)(4) (2018) 
(``Each registration under this section shall contain . . . the name 
address, principal place of business, amount of any contribution of 
more than $5,000 to the lobbying activities of the registrant, and 
approximate percentage of equitable ownership in the client (if any) of 
any foreign entity . . . 1A.'').
---------------------------------------------------------------------------
    Janus v. AFSCME \100\ (and its precursor, Fredrichs v. 
California Teachers Association) \101\ presents a textbook 
example of coordinated, dark-money judicial Jobbying in a case 
with massive political implications.\102\ The case garnered 
over seventy-five amicus briefs, including many opposing the 
1ight of public- sector labor union to collect fees from non-
union members. Many of these briefs were by amicus group with 
fonding from the same source: The conservative Lynde and Harry 
Bradley Foundation, which has a stated goal of "reduc[ing] the 
size and power of public sector unions.'' \103\ None of this 
information was disclosed in either case to the Court or the 
parties. Instead, it fell to the diligent later research of 
transparency groups, using what public data is available, to 
document this web of influence with the Bradley Foundation at 
its heart. \104\ While the Court in Friedrichs deadlocked at 
four-to-four becanse of the death of Justice Scalia, the 
radical right was right away ready with a new case in Janus. 
With Justice Gorsuch confirmed, the Court by a vote of five-to-
four overturned forty years of settled law and undermined 
public sector unions' ability to engage in political advocacy. 
\105\
---------------------------------------------------------------------------
    \100\ S. Ct. 2448 (2018).
    \101\ 136 S. Ct. 1083 (2016).
    \102\ See Mary Botari, Behind Janus: Documemts Reveal Decade-Long 
Plot to Kill Public-Sector Unions, In These Times (Feb. 22, 2018). 
https://inthesetimes.com/features/janus_supreme 
_court_unions_investigation.html (https://perma.cc/K3KN-S5XS] (noting 
``[i]n the past decade, a small group of people working for deep-
pocketed corporate interests, conservative think tanks and right-wing 
foundation have bankrolled a series of lawsuits to end what and SPN, 
are tax-exempt charitable groups'').
    \103\ Free Markets: improving Opportunities for All Citizens by 
Promating Economic Growth, Bradley Found. (Feb. 29, 2020, I0:20 a.m.), 
https://www.bradleyfdn.org/impact/free-markets [https://perma.cc/81DY-
L54C].
    \104\ Brian Mahoney, Conservative Group Nears Big Payoff in Supreme 
Court Case, Politico (Jan. 11, 2016), https://www.politico.com/story/
2016/01/fredrichs-california-teachers-union-supreme-court-217525 
[http://perma.cc/93MA-RWW7] (discussing that in Friedrichs, ``The 
Bradley Foundation funds the Center for Individual Right, the 
conservative D.C. non-profit law firn that brought the case; it funds 
(or has funded) at least 11 organizations that submitted amious briefs 
for the plaintiffs; and it's funded a score o[ conservative 
organizations that support the lawsuit's claim that the ``fair-share 
fees'' nonmembers must pay are unconstitutional'').
    \105\ As Justice Kagan noted in her dissent, ``The majority has 
overruled Abood [v. Detroit Bd. of Ed., 431 U.S. 209 (1977)] for no 
exceptional or special reason, but because it never liked the decision 
. . . 1A. Because, that is, it wanted to pick the winning side in what 
should be--and until now, has been--an energetic policy debate.'' 
Janus, 138 S. Ct. at 2501 (Kagan, J., dissenting).
---------------------------------------------------------------------------
    In Seila Law v. CFPB,\106\ the case in which I filed my 
brief disclosing the common funding of other amici, a group of 
common funders had (a) supported at least thirteen amici 
attacking the constitutionality of the Consumer Financial 
Protection Bureau, (b) developed and propagated the so-called 
``unitary executive'' theory of executive power their amici 
supported, and (c) funded the Federalist Society's efforts to 
bring on to the Court Justices who would be agreeable to this 
theory.\107\
---------------------------------------------------------------------------
    \106\ No. 19-7, 140 S. Ct. 427 (2019) (granting certiorari).
    \107\ See Brief for Sen. Whitehouse et al., supra note 77, at 
Appendix A.
---------------------------------------------------------------------------
    Many of the amici in both Janus and Seila law claim status 
as ``social welfare'' organizations and thereby keep their 
donor list private.\108\ Without knowledge of the common 
funding, one might consider thirteen amicus brief, to present a 
broad outpouring of support; once the common funding becomes 
apparent, it suggests an artificial echo chamber manufactured 
by a small cabal of self-interested entities.
---------------------------------------------------------------------------
    \108\ See Bullock v. Internal Revenue Serv., 401 F. Supp. 3d 1144, 
1159 (D. Mont. 2019) (invalidating a 2018 Internal Revenue Service rule 
that permitted 50l(c)(4) ``social-welfare'' organizations to keep their 
donor lists private).
---------------------------------------------------------------------------
    Judges and parties should know who is trying to influence 
the outcome in their case, but disclosure rules are woefully 
inadequate for today's dark-money fueled legal advocacy. 
Supreme Court Rule 37(6) requires only that amicus briefs:

        [I]ndicate whether counsel for a party authored the brief in 
        whole or in part and whether such counsel or a party made a 
        monetary contribution intended to fund the preparation or 
        submission of the brief, and shall identify every person other 
        than the amicus curiae, its members, or its counsel, who made 
        such a monetary contribution.\109\
---------------------------------------------------------------------------
    \109\ Sup. Ct. R. 37(6).

    The Federal Rules of Appellate Procedure have a similar 
disclosure requirement,\110\ but these rules allow for easy 
evasion. A group like the Bradley Foundation can fund dozens of 
organizations to participate as amici in a case. As long as the 
money is not directed to the ``preparation or submission'' of a 
particular brief (which may be taken to mean merely printing 
and mailing costs), the amicus need not tell the Court where it 
gets its money. The real interests lie back in the shadows, 
while their front groups--often groups with anodyne names that 
belie their true purposes--create an illusory chorus of 
support.
---------------------------------------------------------------------------
    \110\ Fed. R. App. P. 29(a)(4)(E).
---------------------------------------------------------------------------
    Worse, the rule is inconsistently applied. In 2018, the 
Court rejected an amicus brief funded through a GoFundMe 
campaign, with most donors giving ten or hundreds of 
dollars.\111\ At the same time the Supreme Court routinely 
accepts amicus brief from the United States Chamber of 
Commerce. The Chamber refuses to disclose its funding; indeed 
the anonymity of Chamber membership in a selling-point for 
corporation seeking to influence policy and the courts without 
as associating their names with the often-toxic positions of 
the Chamber.\112\ It is difficult to conjure any valid reason 
to reject one brief because an individual who donated $50 to 
the effort did not disclose her identity, while accepting 
another whose corporate donor in the millions of dollars remain 
anonymous.
---------------------------------------------------------------------------
    \111\ U.S. Supreme Court Rule Crimps GoFundMe Backed Amicus Brief, 
Yahoo Fin. (Dec. 10, 2018), https://finance.yahoo.com/news/u-supreme-
court-rule-crimps-075351237.html [https://perma.cc/889T-RV5U].
    \112\ Dan Dudis, Chamber of Commerce Wages War Against Political 
Transparency, The Hill (Oct. 20, 2016), https://thehill.com/blogs/
pundits-blog/finance/302067-chamber-of-commcrce-wages-war-against-
political-transparency [https://perma.cc/T9CG-9AR2] (stating that 
``Chamber President Tom Donohue has said that the Chamber is in the 
business of providing `reinsurance' to companies that need help 
lobbying for positions that aren't publicly or politically palatable. 
And key to the Chamber's ability to provide this `reinsurance' is the 
fact that it can do the dlrty work for its member without them leaving 
their fingerprints behind'').
---------------------------------------------------------------------------
    This discrepancy seemed so obvious that I wrote to the 
Supreme Court to suggest that its disclosure rule should be 
changed.\113\ Responding for the Court, Clerk of the Court 
Scott Harris wrote, ``The language of Rule 37.6 strikes a 
balance . . . . While your letter suggests that non-disclosure 
of donor or member lists ['/favors `well-heeled' amici, it is 
just as likely to protect organizations that advocate for the 
disadvantaged or unpopular causes. See, e.g., NAACP v. Alabama, 
357 U.S. 449 461 (1958 recognizing right of AACP not to provide 
membership lists where disclosure might lead to retribution and 
could chill group activity).''\114\
---------------------------------------------------------------------------
    \113\ Letter on file with author.
    \114\ Letter on file with author.
---------------------------------------------------------------------------
    The Court's response was troubling in two ways. First, it 
draws a false if not outright offensive equivalence between 
Alabama NAACP members at risk of physical violence during the 
Civil Rights era and large corporate interests seeking to bend 
the law anonymously to their advantage.\115\ Second, the Court 
did require the disclosure of the small donors, who were the 
one much more comparable to the ordinary AACP members protected 
in the Alabama case. The Court's unwillingness to look behind 
these hidden big-money influence campaigns runs contrary to 
longstanding precedent that disfavors anonymity in judicial 
proceedings.\116\ It would not be difficult to honor that 
precedent and fashion a rule of disclosure that allows an 
exception for true associational threats of violence, had the 
Court wished.
---------------------------------------------------------------------------
    \115\ See, Dale E. Ho, NAACP v. Alabama and False Symmetry in the 
Disclosure Debate, 15 N.Y.U. J. Legis. & Pub. Pol'y 405, 433 (2012) 
(``[A]pplying NAACP v. Alabama's holding in a formally symmetrical 
manner to the relatively powerful . . . without regard to context may 
undetermine rather than affirn the values underlying that decision.'').
    \116\ See, e.g., United States v. Microsoft Corp., 56 F.3d 1448, 
1464 (D.C. Cir. 1995) (finding that a lower court erred when granting 
the `` `rare dispensation' of anonymity against the world'' when it 
allowed an amicus to file a brief anonymously, and that ``the court has 
`a judicial duty to iuquire into the circumstnnces of particular cases 
to determine whether the dispensation is warranted' ''); Doe v. Frank, 
951 F.2d 320, 324 (11th Cir. 1992) (``A plaintiff should be permitted 
to proceed anonymously only in those exceptional cases involving 
matters of a highly sensitive and personal nature, real danger of 
physical harm, or where the injury litigated against would be incurred 
as a result of the disclosure of the plaintiff's identity. The risk 
that a plaintiff may suffer some embarrassment is not enough.''); Babak 
A. Rastgoufard. Note, Pay Attention to That Green Curtain: Anonymity 
and the Courts, 53 Case W. Res. L. Rev. 1009 (2003).
---------------------------------------------------------------------------
    A legislative solution to this problem is the AMICUS 
(Assessing Monetary Influence in the Courts of the United 
States) Act. This very limited legislation would require 
disclosure by repeat players in the influence game--those who 
file three or more amicus briefs in the United States Supreme 
Court or the Federal courts of appeal during a calendar year. 
Disclosure would be required only of these groups' big-dollar 
funders, those who contributed three percent or more of the 
entity's gross annual revenue or over $100,000. In addition, 
the bill would prohibit covered amicus brief filers from making 
gifts or providing travel or hospitality to judges, akin to 
current restrictions on legislative lobbying.\117\
---------------------------------------------------------------------------
    \117\ See, 2 U.S.C. 1613 (2018).
---------------------------------------------------------------------------

               B. Judicial Travel and Hospitality

    Another means of influence is the ``soft'' lobbying of 
gifts and travel. Supreme Court travel paid for by others is 
not infrequent. Reporting by the nonpartisan Center for Public 
Integrity and by the Washington Post revealed that the nine 
Supreme Court Justice received over 365 trips paid for by 
outside groups from 2011 to 2014.\118\ Unlike the vulgar and 
immediate quid pro quo exchange of a thing of value for a 
specific judicial outcome in a particular case, soft lobbying 
plays the long game of mutual habituation and good will through 
more decorous activities like travel, wbicb happen to avail 
access to the donors and their intermediaries. The long game is 
well known to Leonard Leo, his corporate cabal, and the savvy 
repeat players who represent them.
---------------------------------------------------------------------------
    \118\ Mark Berman & Christopher Ingraham, ``Supreme Court Justices 
are Rock Stars.'' Who Pays When the Justices Travel Around the World?, 
Wash. Post. (Feb. 19, 2016), https://www.washingtonpost.com/news/post-
nation/wp/2016/02/19/what-supreme-court-justices-do-and-dont-disclose/ 
[https://perma.cc/5QAU-KHPJ].
---------------------------------------------------------------------------
    There are myriad unreported ways interests can cultivate 
the good will of the Court. Linda Greenhouse described a recent 
Federalist Society gala as sending a message from the corporate 
donor community to the Justices: ``We've been here for you, and 
we expect you to be here for us. If you want to come back, 
don't disappoint us.'' \119\ Current judicial travel and gift 
disclosure requirements do not provide enough sunlight into 
these relationships.
---------------------------------------------------------------------------
    \119\ Linda Greenhouse, Supreme Court Party Time, N.Y. Times (Nov. 
22, 2018), https://www.nytimes.com/2018/11/22/opinion/supreme-court-
federalist-society.html [https://perma.cc/38CM-CBCN].
---------------------------------------------------------------------------
    While the Ethics in Government Act requires judges to 
provide some financial disclosure, judges and Justices are not 
required to identify the exact dollar value of the 
reimbursement, and they are exempted entirely from reporting 
any gifts in the form of ``food, lodging, or entertainment 
received as personal hospitality.'' \120\ The Executive Branch 
personal hospitality exemption is limited to ``hospitality 
extended for a nonbusines purpose by an individual, not a 
corporation or organization, at the personal residence of or on 
property or facilities owned by that individual or the 
individual's family''; \121\ the Senate's is virtually 
identical, and is commonly understood to be an exception for 
old friends and family.\122\
---------------------------------------------------------------------------
    \120\ Ethics in Government Act of 1978, 5 U.S.C. 102(a)(2)(A) 
(2018).
    \121\ 5 C.F.R. 2634.105(k) (2018).
    \122\ 5 U.S.C. App. 109(14) (2018).
---------------------------------------------------------------------------
    The death of Antonin Scalia demonstrated the difference for 
Justices. Justice Scalia was a well-known traveler, reporting 
258 trips paid for by private sponsors over eleven years.\123\ 
The $700-per-night accommodations at the West Texas hunting 
lodge where Justice Scalia died were paid by John Poindexter, 
owner of a corporate defendant in an age discrimination 
lawsuit, Hinga v. MIC Group,\124\ that the Supreme Court the 
year before refused to hear,\125\ to the company's 
advantage.\126\ This all-expenses-paid hunting trip with a 
litigant was treated as personal hospitality. It seems fair to 
require that judges and Justices make the same disclosures that 
elected officials do. The Judicial Travel Accountability Act 
would require judicial officers' financial disclosure 
statements to include the dollar amount of transportation, 
lodging, and meal expense reimbursements and gifts, as well as 
a detailed description of any meetings and events attended. It 
would align judicial disclosures with disclosures required in 
the other branches. This legislation has bipartisan support and 
has been introduced in both houses of Congress.\127\
---------------------------------------------------------------------------
    \123\ Lipton, supra note 94.
    \124\ 136 S. Ct. 246 (2015).
    \125\ Id.
    \126\ See Lipton, supra note 94.
    \127\ Judicial Travel Accountability Act, S. 2632, 116th Cong. 
(2019).
---------------------------------------------------------------------------

                 C. Supreme Court Transparency

    The Supreme Court is such an opaque institution that the 
public has no idea whom the Justices meet with in their 
chambers. Recent reports show why that information matters. In 
October 2019, Justices Alita and Kavanaugh met with 
representatives of the National Organization for Marriage 
(NOM).\128\ NOM is a political advocacy group with both 
50l(c)(3) and 50l(c)(4) not-for-profit corporate status.\129\ 
It uses that dual status to oppose same-sex marriage 
initiatives in Federal and State legislatures and in the 
courts,\130\ promoting ``an understanding of marriage as the 
union of one man and one woman.'' \131\ In this instance, NOM 
was an amicus curiae in three consolidated cases then pending, 
which presented the issue whether the Civil Rights Act 
protected against discrimination based on sexual 
orientation.\132\
---------------------------------------------------------------------------
    \128\ See, Ephrat Livni, An Unseemly Meeting a the U.S. Supreme 
Court Raises Ethics Questions, Quartz (Nov. 2, 2019). https://qz.com/
1740845/scotus-justices-impartiality-questioned-after-unseemly-meeting/ 
[https://perma.cc/92ZQ-XQZ5].
    \129\ About Us, Nat'l. Org. for Marriage, https://
nationformarriage.org/about [https://perma.cc/MWSY-MKNX] (last visited 
Mar. 4 2020).
    \130\ Id. (explaining that NOM ``organiz[es] as a 50l(c)(4) 
nonprofit organization, giving it the flexibility to lobby and support 
marriage initiatives across the nation'' and that ``[c]onsistent with 
its 501(c)(4) nonprofit starns, NOM works to develop political 
messaging, build its national grassroots email database of voters, and 
provide political intelligence and donor infrastuncture on the State 
level'').
    \131\ Our Work, Nat'l. Org. for Marriage. http://
nationformariage.org/main/ourwork-#navigation-bar (last visited Mar. 4, 
2020) [https://perma.cc/DJX4-Z8A6].
    \132\ Brief for National Organization for Marriage and Center for 
Constitutional Jurisprudence, as Amici Curiae Supporting Respondents, 
Bostock v. Clayton Cty., 139 S. Ct. 1599 (2019) (No. 17-1617).
---------------------------------------------------------------------------
    It is a fair question whether Justices should even take 
such meetings with amici.\133\ At a minimum, those meetings 
should be disclosed. If the disclosures show patterns 
suggesting bias, or might influence a recusal motion, or appear 
to tread close to ex parte meetings, further action may be 
appropriate. But no disclosure is required. We know the 
Justices met with these advocates only because of a social 
media post from NOM President Brian C. Brown.\134\
---------------------------------------------------------------------------
    \133\ See, e.g., Elie Myslal. Conservative Supreme Court Justices 
are Showing Their Biases on Twitter Now. Above the Law (Oct. 31, 2019), 
https://abovethelaw.com/2019/10/conservative-supreme-court-justices-
are-showing-their-biases-on-twitter-now/ [https://perma.cc/M5GW-63BA] 
(``It's really bad enough that conservative justices are so willing to 
give public aid and comfort to right-wing groups like the Federalist 
Society. Brett Kavanaugh who has been credibly accused of attempted 
rape, hns promised to take revenge on his enemies, so you can't really 
claim the justice's partisan hackery is surprising. But this meeting 
with the NOM is outrageous.'').
    \134\ Brian S. Brown (@briansbrown), Twitter (Oct. 29, 2019, 12:12 
p.m.), https://twitter.com/briansbrown/status/1189213352167428096 
[https://perma.cc/6CGS-U5LY].
---------------------------------------------------------------------------
    Most judges take great care to avoid even the appearance of 
an ex parte contact during pending litigation. To be sure, NOM 
was a friend of the court, not a party to the litigation. But 
it would seem fair for parties litigating an issue to know if 
their opponents among the amici are getting a special audience 
with two of the Justices deciding their case.
    Similarly, the Associated Press recently reported that the 
Supreme Court can be rented for private events.\135\ The 
Supreme Court's website says nothing about such a service, but 
again thanks to social media we know that for a fee, and with 
the sponsorship of a Justice, the Court's premises are 
available for hire. No surprise, the Federalist Society, 
sponsored by Justice Alito, held an event at the Court in July 
2018.\136\ The Court refuses to disclose either the groups that 
rent the Court or the sponsoring Justices. According to court 
spokeswoman Kathy Arberg, ``The court does not maintain public 
records of organizations holding events.'' \137\ If a Justice 
were sponsoring an event for a litigant, or regularly sponsored 
events for particular amici curiae, it would seem that other 
litigants and the public ought to know.
---------------------------------------------------------------------------
    \135\ Mark Sherman, Who Made the New Drapes? It's Among High 
Court's Mysteries. AP News (Nov. 29, 2019, https://apnews.com/
a1781172562243a8acd91804a5c8ad10 [https://perma.cc/BPA7-8SG7].
    \136\ The Federalist Society, Facebook (2018), https://
www.facebook.com/pg/Federalist .Society/photos/
?tab=album&album_id=1O155760987728481 [https://perma.cc/GU8A-JE3J].
    \137\ Sherman, supra note 135.
---------------------------------------------------------------------------
    Simple legislation would make all this information public. 
The official calendars of the Justices and a list of private 
events with sponsoring Justices could be made public by the 
Court after an appropriate interval. The Justices could still 
meet with whomever they choose, and sponsor groups for events 
they support, but they would do so knowing their choices will 
become public. For an institution whose authority is grounded 
in its public legitimacy, it is far better to be open with the 
public than not.

                    D. Supreme Court Records

    Currently, no law provides for the preservation of Supreme 
Court Justices' papers. The Federal Records Act specifically 
excludes the Supreme Court, and the Justice's papers are 
considered private property rather than public records.\138\ As 
The New Yorker's Jill Lepore wrote in 2014:
---------------------------------------------------------------------------
    \138\ Federal Records Act of 1950 (FRA), 44 U.S.C. 3101 (2018).

        The decision whether to make these documents available is 
        entirely at the discretion of the Justices and their heirs and 
        executors. They can shred them; they can bum them; they can use 
        them as placemats. Texts vanish; e-mails are deleted. The Court 
        has no policies or guidelines for secretaries and clerks about 
        what to keep and what to throw away. Some Justices have 
        destroyed virtually their entire documentary trail; others have 
        made a point of tossing their conference notes. ``Operation 
        Frustrate the Historians,'' Hugo Black's children called it, as 
        the sky filled with ashes the day they made their bonfire.\139\
---------------------------------------------------------------------------
    \139\ Jill Lepore, The Great Paper Caper. New Yorker (Dec. 1, 
2014), https://www .newyorker.com/magazine/2014/12/01/great-paper-caper 
[https://perma.cc/A83Z-2QLV].

    Given the life tenure and extraordinary power to shape 
American law that comes with a seat on the Supreme Court of the 
United States, there is a public interest in public access to 
Supreme Court records.
    Following the model provided by the Presidential Records 
Act, which ensures public access to presidential records,\140\ 
my Supreme Court Records Act would make Supreme Court records 
the public property of the United States; place the 
responsibility for the custody and management of records with 
the incumbent Justice and, upon the Justice's retirement the 
Archivist of the United States; allow an incumbent Justice to 
dispose of records that no longer have administrative; 
historical, informational, or evidentiary value, subject to the 
approval of the Archivist; and establish a process for 
restriction of public access to these records.
---------------------------------------------------------------------------
    \140\ The Presidential Records Act (PRA) of 1978, 44 U.S.C. 2201-07 
(2018).
---------------------------------------------------------------------------

            E. DISCLOSE Act for Judicial Nominations

    Judicial nominations and confirmations look more and more 
like political campaigns. Millions of dollars of dark money 
flow into social media, televion, and radio advertising 
supporting and opposing nominees. The ads target States whose 
Senators could be swayed on the nomination. It is political 
tradecraft, deployed for politicaI purpose, and all of it ought 
to be regulated like tbe political campaign spending that it 
is.
    Two things need to happen for effective regulation of 
political spending on judicial nominations. First, the Federal 
Election Campaign Act (FECA) needs to cover these judicial 
nomination campaign so the spending is reported to the Federal 
Election Commission.\141\
---------------------------------------------------------------------------
    \141\ Federal Election Campaign Act of 1971 (FECA), 52 U.S.C. 30101 
(2018) (currently defin1ng the term ``candidate'' as ``an individual 
who seeks nomination for election, or election, to Federal office,'' 
but not including judicial nominees.
---------------------------------------------------------------------------
    Second, the law must deal with the post-Citizens United 
identity-laundering devices available to secretive donors. 
Existing FECA discloses do not reach behind the nominal donor 
to give a true picture of who's behind political spending.\142\ 
So, we need a remedy like the DISCLOSE (Democracy Is 
Strengthened by Casting Light on Spending in Elections) Act 
\143\ to unveil the real parties behind political advertising, 
who are now hiding behind shell corporations, donor trusts, and 
50l(c)(4) organizations.
---------------------------------------------------------------------------
    \142\ Anna Massaglia, ``Dark Money'' in Politics Skyrocketed in the 
Wake of Citizens United, Ctr. for Responsive Pol.: OpenSecrets News 
(Jan. 27, 2020), https://www.opensecrets.org/news/2020/01/dark-money-
10years-citizens-united/ [https://perma.cc/CJK8-3TQ8] (``Dark money 
groups have reported nearly $1 billion in direct spending on U.S. 
elections to the FEC since Citizens United with just 10 groups 
bankrolled by secret donors spending more than $610 million of 
that.'').
    \143\ S. 1147, 116th Cong. (1st Sess. 2019).
---------------------------------------------------------------------------
    A Judicial DISCLOSE Act, which I plan to introduce, would 
require groups that that run political advertizements 
supporting or opposing Federal judicial nominations to disclose 
their biggest donors. The bill is modeled after the DISCLOSE 
Act, which would end the plague of dark money in our campaign 
finance system by requiring outside groups to disclose their 
donors to the FEC.

                        VII. Conclusion

    We must be clear-eyed about the hurdles these reforms face. 
Enormous effort has been put by large and powerful interests 
into a fifty-year project to capture the courts. These 
interests seek to maintain, and indeed further en-trench, the 
corporate-friendly outcomes into which they have invested hun-
dreds of millions of dollars. Transparency is inconsistent with 
their scheme. They will fight.
    This is a fight worth having. Dark money is a plague 
anywhere in our political system. Citizens deprived of knowing 
the identities of political force are deprived of power, 
treated a pawns to be pushed around by anonymous money and 
message. Dark money encourages bad behavior, creating the 
``tsunami of slime'' that has washed into our political 
discourse. Dark money corrupts and distorts politics. Bad as 
all that is, dark money around courts is even worse. The 
chances of corruption and scandal explode. The very notion that 
courts can be captured undercuts the credibility upon which 
courts depend. It is surprising that the Judiciary has not come 
to its own defense in these matters, but that makes it our job.
    As Justice Brandeis also said, ``If we desire respect for 
the law we must first make the law respectable.'' \144\ The 
legislation I have proposed here would be an important--indeed 
necessary--first step to bringing a respectable transparency to 
our judiciary.
---------------------------------------------------------------------------
    \144\ Louis D. Brandeis, The Brandeis Guide to the Modern World 166 
(Alfred Lief ed., 1941).
---------------------------------------------------------------------------
    Senator Whitehouse. Mr. Chair, the Supreme Court vacancy 
created by Justice Ginsburg's death makes this hearing salient 
as well as poignant. To understand the forces out to control 
the court, we must first look back.
    Decades ago, business interests, spooked by upheaval in 
American society, needed a plan. Powerful men objected to the 
rise of the anti-war, environmental, civil rights, and women's 
rights movements.
    Polluters dreaded accountability for the damage they were 
doing to our air and water. Tobacco interests dreaded 
accountability for the deaths they were causing. Corporate 
interests felt threatened.
    So, the U.S. Chamber of Commerce turned to a prominent 
lawyer for corporate and tobacco interests. His recommendation? 
Corporate interests must get strongly involved in politics with 
a focus on controlling America's courts.
    The lawyer's name was Lewis Powell. Weeks later, Powell 
went on to the Supreme Court where, in 1978, he led the 5 to 4 
decision that first required a role for corporations in 
American politics, a role which has grown into, often, 
corporate dominance of American politics.
    For big special interests, the rewards of an amenable 
judiciary are immense. A well-stocked bench can deliver things 
elected Members of Congress would never vote for, such as 
letting corporations spend unlimited money, even nowadays 
anonymous untraceable dark money in our elections or undoing 
the Voting Rights Act. The prizes are enormous and big special 
interests have the stamina to play the long game, which they 
did.
    So, fast forward 40-some years from Lewis Powell's memo. 
Today, a dark money-funded private organization, the Federalist 
Society, has a dominant role in the selection of Federal 
judges.
    Another dark money-funded private organization, the 
Judicial Crisis Network, takes anonymous donations, some as 
much as $17 million, to fund political ad campaigns for 
nominees' confirmations.
    Other dark money-funded private organizations troll the 
country for plaintiffs of convenience to bring cases before the 
court that advance the big donors' agenda, and an obliging 
court majority relaxes standing requirements to hear those 
preferred cases.
    Dark money-funded organizations then appear at the court in 
chorus by the orchestrated dozen as amici curiae, ``friends of 
the court.''
    It is big. Last year, the Washington Post published an 
investigation showing Leonard Leo of the Federalist Society at 
the center of a sweeping web of groups fueled by at least a 
quarter billion dollars of dark money out to control the 
Federal judiciary.
    This has the earmarks of a massive covert operation, 
screened behind dark money secrecy, run by a small handful of 
big special interests against their own country.
    In occasional glimpses, we see the same family fortunes and 
corporate interests, suggesting a common scheme. We see overlap 
and funding sources, staff, board members, lawyers, mail drops, 
and office locations. We see cutouts, front groups, false 
narratives, hidden funding. It has the trade craft of a covert 
op.
    Behind all that mess lurks a dark money-funded hothouse to 
incubate and propagate legal theories that give intellectual 
cover to the donors' agenda, and we don't know much about 
travel and hospitality emoluments for justices because they are 
less transparent than the legislative and executive branches.
    A quarter billion dollars is a lot of money. You don't 
spend that kind of money unless you expect something for it. 
So, look at climate change. The International Monetary Fund 
calculates the U.S. subsidy for fossil fuel at $600 billion--
billion with a b--per year.
    So, if you can get five Republican appointees onto the 
Supreme Court, knock back the Clean Power Plan, and stall 
progress on climate change for several years, the monetary 
value of that one delay could be hundreds of billions of 
dollars.
    The capture scheme is an investment with perhaps a thousand 
to one return. Climate is a target, but there are many other 
issues targeted by this operation.
    Voter suppression, where Leonard Leo, via the so-called 
Honest Elections Project, a rebrand of the Judicial Education 
Project, sister organization of the Judicial Crisis Network, is 
creating, as The Guardian reported on, quote, ``a system where 
conservative donors have an avenue to both oppose voting rights 
and appoint judges to back that effort.''
    Destroying Obamacare, with a case to be argued in less than 
two months in the Supreme Court. Breaking the independence of 
regulatory agencies under the confected unitary executive 
theory. Neutering and crippling the civil jury to protect 
mighty corporate interests from the indignity of equal 
treatment before the law in courtroom.
    The grand prize, the evil that makes other evils possible, 
a First amendment right to anonymous dark money in politics. 
Big special interests are already asserting that theory in 
anticipation.
    As this anonymously-funded apparatus grasps for this 
Supreme Court vacancy, there are big questions for Congress to 
answer.
    Why does so much special interest dark money surround the 
court? Why have there been over 80 partisan 5 to 4 decisions 
under Chief Justice Roberts giving victories to big Republican 
donor interests?
    Why has the court been so feckless about proper disclosure 
from these groups? Are the various front groups in fact one 
large common scheme?
    What and who are its goals? Whoever is behind this scheme 
what business do they have before the court?
    Drill down. Follow the money. Who gave two $17 million plus 
donations to the Judicial Crisis Network to fund political 
campaigns against Judge Garland and for Judge Gorsuch, and to 
prop up Judge Kavanaugh's troubled confirmation?
    Add to that another newly disclosed $15 million donation. 
From whom? What business did these donors or this repeat donor 
have before the court?
    Who are the anonymous donors colluding with Leonard Leo to 
funnel that quarter billion dollars into this scheme and what 
do they expect in return?
    This, obviously, matters. A baked-in bias within the 
Federal judiciary for special interests scheming behind an 
array of dark money front groups is a rotten situation that 
inflicts long-term harm on our judiciary.
    For those who say both sides are to blame, great. Join me 
in fixing it. Let us bring transparency to judicial 
nominations, amicus briefs, and judges' gifts and hospitality 
no matter who is paying.
    Mr. Chair, the sooner we clean up this mess, the sooner 
courts can escape the grimy swamps of dark money influence and 
return to their proper place in the broad and sunlit uplands of 
earned public trust.
    Thank you, sir, for taking on this unpleasant but necessary 
challenge, and thank you for allowing me the opportunity to 
present these remarks today.
    [The statement of Senator Whitehouse follows:]
    
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    Mr. Johnson of Georgia. Thank you for your long-time work 
on this very important issue and others related to the 
integrity of the judicial process and system, and I thank you 
for your testimony today.
    Mr. Jordan. Mr. Chair?
    Mr. Johnson of Georgia. Who seeks to be recognized?
    Yes, the gentleman is recognized.
    Mr. Jordan. The Senator is not going to take questions?
    Mr. Johnson of Georgia. No.
    Mr. Jordan. I think the last time the Senator was in front 
of the Oversight Committee he took questions from the Members. 
I mean, he came in here and leveled all kinds of accusations 
against Republicans, and is not going to take any questions 
from us?
    Mr. Johnson of Georgia. Well, as the gentleman knows, it is 
our custom and tradition to not pose questions to our fellow 
colleagues when they appear as Witnesses.
    Mr. Jordan. The good Senator from Rhode Island took 
questions from us in the Oversight Committee just not too long 
ago because I was in that Committee and asked him some 
questions.
    Mr. Johnson of Georgia. Well, it was not compulsory, and I 
guess the Chair of the Committee allowed it to happen.
    Mr. Jordan. Does the Senator not want to take our 
questions?
    Mr. Johnson of Georgia. Yeah, our agreement with the 
Senator is that he would not take questions. That was our 
mutual understanding along with the Subcommittee.
    So, with that, the gentleman has departed and we now have 
our second esteemed panel that is ready to go.
    [Pause.]
    Mr. Johnson of Georgia. All right. So, at this time we will 
reconvene to hear the testimony of our second panel. I will now 
introduce our second panel of Witnesses.
    Professor Tom Ginsburg is the Leo Spitz Professor of 
International Law, Ludwig and Hilde Wolf Research Scholar and 
professor of political science at the University of Chicago Law 
School.
    Professor Ginsburg focuses on comparative and international 
law from an interdisciplinary perspective. Professor Ginsburg 
has written and co-written award-winning books including ``How 
to Save a Constitutional Democracy'' with Aziz Z. Huq, 
``Judicial Review in New Democracies,'' ``The Endurance of 
National Constitutions,'' and ``Judicial Reputation.'' He 
currently co-directs the Comparative Constitutions Project, an 
effort funded by the National Science Foundation to gather and 
analyze the constitutions of all independent nation-states 
since 1789.
    Professor Ginsburg holds the B.A., JD, and Ph.D. degrees 
from the University of California at Berkeley. Thank you, sir, 
for your appearance today.
    Mr. Ilya Shapiro is the Director of the Robert A. Levy 
Center for Constitutional Studies at the Cato Institute and 
publisher of the Cato Supreme Court Review.
    Before joining Cato, he was a special assistant advisor to 
the multinational force in Iraq on Rule of law issues and he 
practiced at Patton Boggs and Cleary Gottlieb.
    Mr. Shapiro is the author of ``Supreme Disorder: Judicial 
Nominations and the Politics of America's Highest Court,'' co-
author of ``Religious Liberties for Corporations? Hobby Lobby, 
the Affordable Care Act, and the Constitution,'' and editor of 
11 volumes of the Cato Supreme Court Review.
    Mr. Shapiro received his Bachelor's degree from Princeton 
University, a Master's degree from the London School of 
Economics, and his JD from the University of Chicago Law 
School. Welcome, sir.
    Judge Nancy Gertner is a Senior Lecturer on law at Harvard 
Law School and a former U.S. District Court judge out of 
Massachusetts. Judge Gertner was appointed to the Federal bench 
by President Bill Clinton in 1994.
    In 2008, Judge Gertner was the second woman to receive the 
Thurgood Marshall Award from the American Bar Association 
section of individual rights and liberties. Judge Ginsburg was 
the first.
    After retiring from the bench in 2011, Judge Gertner joined 
the faculty at Harvard Law School where she has taught a number 
of subjects including criminal law, criminal procedure, 
forensic science, and sentencing, and has continued to teach 
and write about women's issues around the world.
    Judge Gertner received her Bachelor's degree from Barnard 
College, an M.A. in political science from Yale University, and 
her JD from Yale Law School. Welcome, Judge.
    Last but not least, Professor Amanda Hollis-Brusky is an 
Associate Professor of politics at Pomona College where she 
teaches courses on American politics, the Supreme Court, and 
constitutional law.
    Professor Hollis-Brusky is co-founder of the Southern 
California Law and Social Science Forum and editor at the 
Monkey Cage, a political science blog hosted by the Washington 
Post, and the author of two books and several articles on the 
Supreme Court and contemporary legal movements.
    Professor Hollis-Brusky received her Bachelor's degree in 
philosophy and political science from Boston University, and 
her M.A. and Ph.D. degrees in political science from the 
University of California at Berkeley. Welcome, Professor.
    We are happy to have you all here as a panel, and before 
you proceed with your testimony I want to remind you that all 
of your written and oral statements made to the Subcommittee in 
connection with this hearing are subject to 18 U.S.C 1001.
    Please note that your written statements will be entered 
into the record in its entirety. I ask you to summarize your 
testimony in five minutes.
    To help you stay within that time, there is a timing light 
in Webex. When the light switches from green to yellow you have 
one minute to conclude your testimony. When the light turns 
red, it signals your five minutes have expired.
    Professor Ginsburg, you may now begin.

                   TESTIMONY OF TOM GINSBURG

    Mr. Ginsburg. Thank you very much, Chair Johnson, Ranking 
Member Roby, and all the Members of the Subcommittee for the 
opportunity to discuss today a topic I have been researching 
for many years.
    My work is on the origins, maintenance, and decline of 
constitutional democracy around the world, and work has taken 
me to dozens of countries.
    Of course, I appear before you today in a time when 
Americans are worried about the quality of our own democracy 
and when the appointment of a Supreme Court justice is, again, 
going to be a major topic of discussion during our presidential 
election campaign. It is a good time to be thinking about the 
role of courts in democracy and how to ensure that our high-
quality judiciary can fulfill its responsibilities under the 
Constitution.
    At the same time, it is a moment of some risk. Major 
battles over judicial appointments risk politicizing the courts 
and depriving them of the legitimacy that is essential to their 
function.
    This is not just a concern of scholars and journalists and 
court watchers, or those who have been tracking signs of 
democratic erosion in the United States. Much more importantly, 
it is a concern of the American people themselves. This 
perception of an independent judiciary that can constrain 
executive power is low and in decline on both sides of the 
political aisle.
    Now, it is my view that even an old democracy like the 
United States can learn from the dynamics of democratic 
backsliding and democratic resilience around the world, and one 
of the things we observed in the context of democratic erosion 
is what might be called political capture of the judiciary.
    In recent decades, for many reasons, courts have become 
very important in the politics of many countries, and this 
means that leaders who wish to take over their political 
systems first look to the courts as a first step in trying to 
end electoral competition and this has occurred in countries 
like Venezuela, Turkey, Hungary, even Poland.
    At the same time, we also see countries in which the courts 
play a critical role in saving constitutional democracy in 
places like Colombia and Sri Lanka.
    So, in my view, this outside information is relevant as we 
think about our own judiciary.
    Now, it is also my view and finding election campaigns, 
presidential elections over judicial appointments is a 
distortion of our democracy, and so a key objective for 
Congress in the coming years must be to reduce the stakes of 
appointments to the Federal bench. Lowering the temperature of 
judicial appointments will be good for our democracy, good for 
our judiciary as well.
    One way to do this would be to regularize the appointments 
process, and many other countries do this. Note that current 
discussions are not just about what kind of justice should 
replace Justice Ginsburg, but the very procedure by which that 
person will be nominated and confirmed, and this is, obviously, 
not healthy. Procedures must be set in advance.
    In fact, I don't see in the current moment any principal 
stopping point in our partisan escalation. We could soon be in 
a situation where all appointments to the Supreme Court, maybe 
even all Federal courts, could only be made in periods when the 
presidency and Senate were in the hands of the same party, and 
this would lead to episodic rushes to confirm judges who are 
ever younger, less experienced, for the public to evaluate. Not 
good for the country, the court, or our democracy.
    Now, it is true procedure is, largely, in control of the 
Senate's internal rules but it doesn't mean that Congress 
couldn't pass a statute seeking to regularize the procedure in 
terms of timelines, providing for outside vetting, and doing 
other things like introducing qualifications for Federal judges 
such as practice experience, which has arisen in a small number 
of recent nominations.
    Chair mentioned the lack of a code of ethics to the Supreme 
Court, which is also something that could be addressed. All 
these things would give the public confidence that the 
procedure and standards of filling the judiciary and the people 
taking those jobs are not simply being manipulated on a 
partisan basis. So, I would like to see that.
    I would also like to see us redirect the courts to 
fundamental issues of protecting our democracy. Right now, the 
dominant image of the courts is this kind of a referee between 
the two parties, famously captured by Justice Roberts in his 
own confirmation hearing in which he said the job of the judge 
was to call balls and strikes.
    The problem is in a polarized era where the players 
themselves are picking the ump, each side is trying to get the 
calls sort of shaded to their side and sending more and more 
questions up to that umpire. My view is that most political 
decisions should be in the hands of democratic processes, and 
so the important role for courts is to preserve those 
processes.
    Our courts do well in some core democratic areas like 
freedom of speech, freedom of association. They do less well in 
areas like the Voting Rights Act, and that is where I would 
like to see Congress instruct courts to give the right to vote 
maximum effect and to undo many of the efforts to suppress the 
vote that we have seen since the passage of the case of Shelby 
County.
    Thank you very much, Mr. Chair, and I look forward to your 
questions.
    [The statement of Tom Ginsburg follows:]
    
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    Mr. Johnson of Georgia. Thank you, Professor Ginsburg.
    Mr. Shapiro, you may begin.

                   TESTIMONY OF ILYA SHAPIRO

    Mr. Shapiro. Thank you, Chair Johnson, Ranking Member Roby, 
distinguished Members of the Subcommittee. Thank you for this 
opportunity to discuss judicial independence and the rule of 
law.
    Judicial independence is, of course, an important part of 
our constitutional structure, allowing the third branch of the 
Federal government to check the others. Those checks and 
balances maintain the separation of powers, which, in turn, 
protects our liberty by preventing the concentration of power.
    Now, this hearing's subtitle implies that something called 
court capture is a threat to the rule of law. Yet, I am not 
sure that the courts have been captured or even what such a 
capture would look like.
    Is it simply that President Trump has gotten many judges 
confirmed? Although this administration has had particular 
success with circuit judges, 53 confirmed with no remaining 
vacancies, its 216 article 3 judges represent only about a 
quarter of all such judges and less than a quarter of the 
authorized 870 article 23 judgeships.
    By comparison, President Carter had 262 judges confirmed in 
one term, including 59 circuit judges, while President George 
H.W. Bush had 193.
    If President Trump loses his bid for reelection, his total 
will not be much higher than the first President Bush's and 
significantly lower than that of President Carter, for whom 
Congress created many new judgeships to fill.
    If President Trump is reelected, even assuming the 
Republicans keep the Senate, it is unlikely that his two-term 
total would be significantly higher than our last two 
presidents--George W. Bush with 327, Obama with 329.
    For one thing, there are currently only about 60 vacancies, 
mostly for District judges in States where democratic Senators 
have refused to negotiate any sort of deals, preferring to 
leave their States shorthanded.
    In other words, if the judiciary has been captured, it is 
the sort of capture we see under every president, and probably 
overstated, given the District court nominees in States like 
New York, where the democratic Senators have, indeed, made 
deals.
    Maybe the nominees themselves have been captured by 
particular interests. This can happen with elected State judges 
and, historically, judicial politics have, indeed, been swayed 
by interests ranging from plantation slavery to the railroads, 
manufacturers, to New Deal allegiances.
    Senator Whitehouse's own chosen Federal judge, John 
McConnell of the District of Rhode Island, was a well-known 
personal injury trial lawyer who gave generously to left-wing 
causes.
    There is no indication that this administration's nominees 
are beholden to the entertainment or hotel industries in which 
Donald Trump plied his trade before coming down that golden 
escalator.
    To his credit, the President has let the White House 
Counsel's Office run the show. Senators will occasionally 
insist on their local favorites, but the ration of 
intellectually rigorous and independent nominees to 
establishmentarians is exceedingly high and the result has been 
this President's biggest success, with judges of the same 
caliber as those whom conservative constitutionalist Ted Cruz 
would have picked.
    This administration has surpassed even George W. Bush in 
picking committed and youthful originalists, particularly in 
the Circuit courts. Former White House counsel Don McGahn likes 
to say that rather than outsourcing judicial selections to the 
Federalist Society or anyone else, he had in-sourced the 
operation, meaning that his team, which was leaner than in 
previous administrations, all understood the need for solid 
judges with a record of accomplishment and demonstrated 
commitment to originalism and textualism.
    That is why it is no surprise that so many of President 
Trump's nominees are already superstars and why Democrats have 
tried to smear them in various ways.
    Senator Dianne Feinstein said about Seventh Circuit Judge 
Amy Coney Barrett, now a finalist for Justice Ginsburg's seat, 
that ``the dogma lives loudly within you,'' which sounds like a 
rejected Star Wars line.
    Fifth Circuit Judge Don Willett was assailed for humorous 
tweets. D.C. Circuit Judge Neomi Rao and Second Circuit Judge 
Steven Menashi were attacked for their pretty standard 
conservative or libertarian collegiate writings.
    California Senators Feinstein and Kamala Harris tried 
especially hard to block their home State's Patrick Bumatay, 
who became the first openly gay Ninth Circuit judge and First 
Circuit judge of Filipino descent.
    Indeed, Democratic Senators have used every trick in the 
book to stop or slow this high-quality judicial confirmation 
train, which Harry Reid eliminated for the lower courts in 
2013.
    So, they forced more cloture votes than all previous 
presidencies combined. Nearly 80 percent of Trump's judicial 
nominees have faced cloture votes, including many who are 
confirmed with upwards of 90 votes.
    In comparison, about 3 percent of Obama's nominees faced 
cloture votes and fewer than 2 percent in the previous five 
presidencies.
    To put it another way, Trump's 216 article 3 judicial 
appointees have received more than 4,600 no votes, while 
Obama's 329 got 2,039. Trump's judges have received nearly half 
of all no votes in U.S. history, in fact.
    One final statistic. The average Democrat has voted against 
nearly half of all Trump nominees while the average Republican 
voted against fewer than 10 percent of Obama's.
    It is a shame that quality nominees are confirmed on party 
line votes. We have gotten here because we are at the 
culmination of long trends where different legal theories map 
on to ideologically sorted parties, as I detail in my new 
books, ``Supreme Disorder,'' which actually just came out 
today.
    None of this is a sign of capture. Political considerations 
have always been part of the process.
    Thank you, and I welcome your questions, including about 
actual threats to judicial independence like court packing.
    Thank you.
    [The statement of Mr. Shapiro follows:]
    
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    Mr. Johnson of Georgia. I thank the gentleman for his 
testimony.
    Judge Gertner, you may begin.
    Judge Gertner. I thank the gentleman for his testimony.

            TESTIMONY OF JUDGE NANCY GERTNER (RET.)

    Ms. Gertner. Thank you.
    Chair Johnson, Ranking Member Roby, and Members of the 
Committee, let me start by saying that I don't want to just 
memorialize Justice Ginsburg. I was a friend and I, candidly, 
mourn her.
    I was a Federal judge for 17 years, serving in the District 
of Massachusetts. I left the bench to become a full-time 
professor of practice at Harvard Law School. I am now teaching 
there part time as well as teaching criminal law at Yale Law 
School this semester.
    My testimony here derives from my judicial experience. My 
goal is to be as dispassionate and careful in this testimony as 
I know how to be.
    I testify today because of my deep concern for the 
parties'--the public's growing view of the bench as partisan 
and, thus, not meaningfully different from the other branches.
    The legitimacy of the courts depends upon the public's 
belief in its neutrality. Their faith in the institution 
depends upon their trust that it is fully and completely 
independent of the political process.
    Attacks on the judiciary by our President undermine that 
legitimacy and that faith. When the President criticizes 
opinions with which he disagrees as coming from Obama or 
Clinton judges, he undermines all judges and the institution as 
a whole.
    That is why Chief Justice Roberts made clear that we don't 
have, quote, ``Obama judges or Trump judges, Bush judges or 
Clinton judges. We have an extraordinary group of dedicated 
judges doing their level best to do equal right to those 
appearing before them,'' unquote.
    The selection process for Federal judges under the Trump 
administration, in my view, undermines the Chief Justice's 
observations.
    While in the past there have not been Bush I, Bush II, 
Clinton, or Obama judges. There are, or at least I fear the 
public perceives, that there are, quote, ``Trump judges.''
    The administration has explicitly said as much. These are, 
after all, quote, ``his'' judges.
    The unique judicial selection process has produced them and 
the public's perception of Trump judges could undermine the 
rest of the bench.
    I talk about 28 U.S.C 1404--it is 455(a), which is a 
provision of the Judicial Code of the statutes that talks about 
not just the reality of bias but the appearance of bias, and my 
concern is that how one selects judges for a life-tenured 
position may well be as important as who you select. How you 
select plays a role in determining the respect with which the 
public holds the bench.
    While in the past the public understood that the process 
was political in the sense that the President nominated the 
candidates, one thing was clear. No matter who the President 
was, the pipeline for judicial appointments was wide and 
bipartisan often.
    The range of acceptable views was broad. Candidates, as 
Senator Lindsey Graham has said, were in the mainstream of 
judicial thought whether they were on the right or the left 
side of that stream.
    This process has been truncated, partisan, and seems to 
depend upon the imprimatur of one organization, directly 
affecting the way the public perceives the bench.
    Even before the President was sworn in he announced, quote, 
``slate of nominees,'' in a way that resonated with the kind of 
slate one sees in a judicial election.
    It was not an ordinary slate, as Professor Hollis-Brusky 
will describe. It was curated by one organization, the 
Federalist Society.
    In fact, at one point, Leonard Leo was quoted as saying to 
the President, ``That is a great idea. You are creating a 
brand''--a judicial brand, precisely what casts doubt on the 
independence of the judiciary.
    In fact, the relationship between the President's nominees 
and the Federalist Society has been praised by Orrin Hatch, by 
Don McGahn, ``Yes, these are people that have--this is a set of 
nominees that have been outsourced to the Federalist Society.''
    Contrast that with the statements of other Republican 
administrations. William Marshall, in a Federalist Society 
panel, said, ``We are now treating elections as if they are 
mandates to change the meaning of the Constitution. That is 
troubling.''
    Professor William Kelley, at the same meeting, said, ``It 
seems to license people to do what they otherwise might not do. 
It is one thing to have a political view when you come into 
office. It is another thing to be told by the election process 
that it is okay to apply that political view in your opinions. 
Over-politicization of the process provides a license to 
judicial nominees to effectuate their choices.''
    In short, I am not talking about whether these are 
qualified or not. These candidates are qualified. I focus on 
the process by which they are selected, what that process 
communicates to the public, and the ways in which it undermines 
the public's perception of the bench.
    If the public believes that one of these nominees are the 
arm of one political party, or worse, of a subgroup of that 
party, the core faith in an independent judiciary is 
undermined.
    Thank you.
    [The statement of Ms. Gertner follows:]
    
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    Mr. Johnson of Georgia. Thank you, Judge Gertner.
    Professor Hollis-Brusky, you may begin.

               TESTIMONY OF AMANDA HOLLIS-BRUSKY

    Ms. Hollis-Brusky. Thank you, Mr. Chair. Thank you to the 
Members of this Committee for the opportunity to testify this 
afternoon.
    My name is Amanda Hollis-Brusky and I am an Associate 
Professor of politics at Pomona College. I am also the author 
of two books on the Supreme Court and the conservative legal 
movement.
    In my written testimony, I draw on my own published work as 
well as that of other law and court scholars to provide 
thorough and detailed answers grounded in research to the 
question animating today's hearing.
    In my brief remarks this afternoon I want to highlight one 
development in particular that threatens to undermine judicial 
independence and the rule of law.
    That is the growing public perception of a judiciary that 
appears to be both driven by partisan politics and captured by 
a single interest group.
    I will talk about the corrosive effects this has on the 
people's perception of the judicial branch as an independent 
neutral arbiter of law and of the Constitution.
    Our current court is at once more partisan and more divided 
than any time in the last 100 years. Since 2010, the Supreme 
Court has been strictly divided along party lines, not just 
ideological lines, with every justice appointed by a Democratic 
President voting more liberally than every justice appointed by 
a Republican president, and vice versa.
    Far from being the historical norm, this partisan divide is 
out of step with traditional patterns of voting and alignment 
on the court. It is also the most divided court since the New 
Deal court of the 1930s.
    In its decisions the current Supreme Court has split or 
sharply divided, for example, 5 to 4, on nearly one of every 
five decisions it has handed down, and that is the highest rate 
of division in 100 years.
    This means that more often than not votes on major issues 
that affect millions of Americans on health care, housing 
discrimination, who gets to get married, gun control, 
reproductive rights, the separation of church and State, who 
gets to stay in this country, and who gets deported come down 
to a single vote, and more often than not, that vote has been 5 
to 4 along party lines.
    The current partisan divide on the Supreme Court is 
amplified by the fact that the five Republican-appointed 
justices all have identifiable ties to a single organization: 
The Federalist Society for Law and Public Policy Studies.
    I read extensively about the Federalist Society and its 
influence on the Supreme Court and Republican judicial 
selection in my book, ``Ideas With Consequences: The Federalist 
Society and the Conservative Counterrevolution.''
    For the purposes of this hearing, I will emphasize a single 
point about the organization. Over the past three and a half 
decades, the Federalist Society has achieved, and I will quote 
one of its members here directly, ``A de facto monopoly on the 
training, selection, and disciplining of Republican-appointed 
judges.''
    Over the course of the Trump administration, as I and many 
others have documented, this influence has become at once more 
visible and more consolidated than ever before.
    All of this has consequences for court legitimacy. The 
currency of the court, its only real power, is its legitimacy, 
its power to persuade we, the people, that its decisions are 
legitimate and grounded in law, not grounded in partisan 
politics or influenced by interest group politics.
    We know from political science that the single greatest 
threat to the legitimacy of the judiciary is when the public 
begins to believe, and I quote, ``that judges are little more 
than politicians in robes.''
    When the judiciary is viewed as just another political 
institution, people lose faith in the legitimacy of the court. 
People lose faith in the Rule of law.
    Now, whether or not judges and justices are actually 
motivated in their decisions by their partisan allegiances that 
doesn't matter, and whether or not the Republican-appointed 
judges and justices on the Federal bench, now numbering around 
400 in total, are actually influenced by their connections with 
and membership in the Federalist Society, that doesn't really 
matter either.
    What matters is how all of this looks to we, the people. 
Research tells us that the appearance of partisan-motivated 
voting, the appearance of Federalist Society capture, will harm 
the people's faith in and trust in the Federal judiciary.
    So what it looks like, how it is perceived by the public, 
should matter to anyone who cares about judicial independence 
and the Rule of law and it should matter especially to the 
Members of this body and the Members of this Committee.
    Thank you, and I look forward to hearing your questions.
    [The statement of Ms. Hollis-Brusky follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
  
     
    Mr. Johnson of Georgia. Thank you, Professor Hollis-Brusky.
    Votes have been called. I understand it will be three 
votes. Since we are in the middle of the first vote, I 
recommend that the Witnesses be subjected to questions from 
myself and Ms. Roby, at which time we will then recess for the 
Members to vote.
    I suggest that the Members remain for the second vote and 
vote, and then come back to the Committee, whereupon we will 
resume questioning of the Witnesses as far as we can get until 
it is time to go vote for that third vote.
    There being no objection that I have heard, I would now ask 
the Ranking Member to consider the request that I extended to 
her earlier of allowing our colleague, Sheila Jackson Lee, to 
maintain a seat on the podium during the hearing.
    Ms. Roby. Mr. Chair, I have no objection. I would like to 
note for the record--have no objection to my friend and 
colleague joining us here on the dais today.
    I would like to note for the record that there is at least 
one instance in another Subcommittee where the minority has 
made a similar request and not been extended the same courtesy, 
and I believe that is very unfortunate.
    Welcome, Ms. Sheila Jackson Lee, to the dais today.
    Mr. Johnson of Georgia. Well, if I could assure the Ranking 
Member, who has always extended courtesy to me, that courtesy 
would always be re-extended to you. We would not be 
hypocritical in any way.
    Ms. Roby. Thank you, Mr. Chair.
    Mr. Johnson of Georgia. I thank the chair.
    With that, we will begin our questions of the first 
Witness. We proceed under the five-minute rule. I now recognize 
myself for five minutes.
    Professor Ginsburg, you have written that the Federal 
courts have acquired legitimacy with the public through their 
association with historical causes such as the civil rights 
movement.
    Now, the courts and, particularly, the Supreme Court are 
increasingly associated with efforts to dismantle the rights 
that once helped secure.
    The right to vote, the right to be free from discrimination 
because of your age, your gender, your language, or the color 
of your skin, the right to control your own body, the right to 
clean air and clean water, it has all been rolled back.
    Professor Ginsburg, is this trend consistent with your 
vision of courts as bulwarks against democratic backsliding?
    Mr. Ginsburg. Thank you for the question, Mr. Chair.
    Certainly, consistent with my view of the role that courts 
should play in terms of facilitating democracy and not reducing 
participation, taking actions which are activist in nature and 
hurts the majority, and that seems to be what many of the 
things you listed would fall under that category.
    The fact is, this term activism often gets thrown around, 
and I see in my friend Professor Shapiro's testimony even notes 
that activism is something more of an epithet than an analytic 
tool these days.
    The fact is, many of the decisions which have come in 
recent years, many of the most consequential decisions can be 
described as nothing other than activist attempts to roll back 
the administrative State, to reduce the right to vote and to 
facilitate free flow of money in our politics. That is my 
reading of those decisions.
    Mr. Johnson of Georgia. Thank you.
    Judge Gertner, what happens to our democracy when the 
judiciary becomes associated with weakening people's basic 
rights instead of protecting them?
    [No response.]
    Mr. Johnson of Georgia. You may unmute yourself, please.
    Ms. Gertner. Federal judges are not used to being muted.
    Thank you for your question. I think that the role that an 
independent judiciary has played in the United States and, I 
might add, as an icon for the rest of the world has been the 
role of supporting minority rights against the majority 
political party, for example.
    That was what the carveout was for Brown v. Board of 
Education, for the various LGBTQ decisions. When the 
majoritarian institutions failed to protect minority rights, 
the Supreme Court stepped in.
    The view of the court as protecting majority rights, 
protecting corporate rights, is a new one and inconsistent with 
what it has been in the past.
    My concern is not just the direction of the court. My 
concern is the perception of the direction of the court. It is 
as Professor Ginsburg described and what I have begun to call 
the undoing project--the project to undo the rights and the 
core principles of the past 40 years on the bench.
    So, activism no longer means rejecting--no longer suggests 
that rejecting precedent is a bad thing. We now have 
literature, particularly from the Federalist Society, 
describing the importance of overturning precedent and 
overturning settled expectations in the court.
    My point before was really more even if one agrees with 
that, one has to be troubled by a single-lane pipeline to the 
United States Supreme Court and the lower Federal courts, which 
is a pipeline that is monitored and controlled by one 
organization. Even if you agree with them, that has got to be a 
troubling development.
    Mr. Johnson of Georgia. Thank you, Judge.
    Professor Hollis-Brusky, what happens to our democracy.
    Ms. Roby. Your mic.
    Mr. Johnson of Georgia. When the judiciary associated with 
weakening people's rights is also associated with ideological 
and partisan groups funded by groups like the Federalist 
Society network?
    Ms. Roby. Your mic.
    Mr. Johnson of Georgia. I am sorry. You didn't hear my 
question. I didn't have my mic on, Professor Hollis-Brusky.
    What I would like for you to respond to is the question, 
what happens to our democracy when a judiciary associated with 
weakening people's rights is associated with ideological and 
partisan groups funded by groups like the Federalist Society?
    Ms. Hollis-Brusky. Thank you for the question.
    Under a certain theory of government, it is important to 
recognize that the judicial role should be a minimal role. In 
fact, this was the same theory of government embraced by people 
like Justice Scalia back in the 1980s, judges like J. Harvie 
Wilkinson, who believed that judges should exercise restraint, 
particularly when it came to the will of the democratic 
majority.
    So, the role of the judge was to, in most cases whenever 
possible, uphold the democratic will, but in those cases where 
the Constitution clearly commanded it, to strike down 
infringements on minority rights or to hold the democratic 
majority accountable to provisions in the Constitution.
    Now, this used to be called judicial restraint and the 
opposite of that would be judicial activism: A judicial branch 
that goes out of its way to overturn long-established 
precedent, a judicial branch that moves the law too far too 
fast, and a judicial branch that answers questions that are not 
asked of it.
    So, in my book, ``Ideas With Consequences,'' I talk, in 
particular, about the decision in Citizens United and how this 
represented a new kind of judicial activism within the 
Federalist Society.
    The Roberts court answered a question that was not asked of 
it and used this decision as a vehicle to further deregulate 
campaign finance law, which handcuffs the people's ability to 
control the corrosive effects of money in elections.
    Mr. Johnson of Georgia. Thank you. My time has expired.
    Next, we will have five minutes of questions from the 
gentlelady from Alabama, Congresswoman Roby.
    Ms. Roby. Thank you, Mr. Chair.
    Mr. Shapiro, I will give you an opportunity if you want to 
respond to any of the other Witnesses' responses to Chair's 
questions.
    Mr. Shapiro. I appreciate that. Thanks very much.
    On the topic of Shelby County, which has been mentioned a 
few times, I have a Law Review article called ``Shelby County 
and the Vindication of Martin Luther King's Dream.'' I will 
send that to your staff to be entered into the record rather 
than taking up the oral time for that.
    This idea of the Federalist Society, I think, has been 
mischaracterized and I want to push back on this idea of a 
single-lane pipeline or a dominant interest group because the 
Federalist Society isn't an interest group.
    It is a network of lawyers and law students. It is a 
membership organization. It is much like the American Bar 
Association.
    In fact, it was formed to be a counterpart to the academy 
for law students and to the ABA for practicing lawyers, both of 
which had then and probably even more have now a left-wing or 
progressive skew.
    To be clear, I have been a member of the Federalist Society 
for 20 years. In fact, 28 years ago I was a first-year law 
student.
    It was right about now 20 years ago that I was joining it, 
and I have never been asked by anyone at the Federalist Society 
to take any position, acknowledge any positions, sign my name 
to any statement.
    I am constantly asked, however, about how best to frame a 
discussion in a particular area of constitutional law or legal 
policy, or whether I would be amenable to debating a point I 
have made in a recent article with another member of the 
Federalist Society.
    In fact, the Federalist Society strives to present debates 
and otherwise expose students to a wide range of ideas. It is 
not a monolith.
    In fact, during the same-sex marriage litigation, for 
example, law school faculty often refused to engage in the 
battle of ideas so the Federalist Society would provide both 
speakers including, frequently, I was on the pro same-sex 
marriage side--to hold debates.
    The Federalist Society counts as members people who apply 
many kinds of interpretive methods, from natural law theorists 
to libertarians, those who believe in judicial restraint and 
those who believe in traditional engagement, textualists and 
pragmatists, lovers of Chevron deference, and those who want to 
deconstruct the administrative State.
    Indeed, Federalist Society member jurists who are 
textualists nominated by the same President can disagree, as we 
saw this past term in the Bostock case in which Justices 
Gorsuch and Kavanaugh argued against each other about the 
meaning of title 7 of the Civil Rights Act of 1964.
    Of course, that decision gave fuel to the rising so-called 
common good constitutionalists. That was criticism by Senator 
Josh Hawley of the efficacy of a conservative legal movement 
that, in his view, increasingly fails to produce results for 
the voters who empower it.
    In short, there is no monolith. There is no talking points 
or marching orders. I have had many more debates, certainly, 
many more productive debates, with other members of the 
Federalist Society, as much or more as with the American 
Constitution Society or otherwise.
    What it is a signaling mechanism to show that you are 
unafraid to declare at your law school, because most are very 
left leaning, as I said, especially the student bodies, that 
you are committed to certain principles, originalism, 
textualism, certain modes of interpretation.
    This is not about being results oriented. That might be a 
bit of projection, perhaps, from some people on the other side.
    It is about intellectual rigor and commitment to taking 
ideas seriously and the commitment to, indeed, the focus of 
this panel: The Rule of law and judicial independence.
    Ms. Roby. Mr. Shapiro, some academics and stakeholders have 
argued for increased donor disclosure laws, particularly as it 
relates to spending by 501(c) organizations. Do you have any 
concerns about compelling donor disclosure and how that may 
chill free speech?
    Mr. Shapiro. I do. I detail some of that in my written 
remarks. Just to summarize, going back to NAACP v. Alabama, the 
idea that the freedom of speech or independent speech--we are 
not even talking about donations or support of particular 
candidates or parties--that the State will demand anyone who is 
participating in that, certainly, will chill activity.
    I work for the Cato Institute. We are a 501(c)(3), not a 
(c)(4). Still, we are very jealous of our donors' privacy 
because freedom of association and private association are 
important constitutional protections.
    Ms. Roby. Thank you. My time has expired. I yield back.
    Mr. Johnson of Georgia. I thank the gentlelady.
    We will recess to take votes one and two. We should be back 
in probably 30 to 45 minutes, ladies and gentlemen, and we 
appreciate your forbearance with us.
    [Recess.]
    Mr. Johnson of Georgia. The hearing will resume. With that, 
we will have five minutes of questions from the gentlelady from 
California, Zoe Lofgren.
    Ms. Lofgren. Thank you, Mr. Chair, and this has been a very 
important hearing, especially given the events of the last few 
days, the tragic loss of our Ruth Bader Ginsburg, such a icon 
justice, and the hope and future for equal rights. I think back 
on all the things that would have been different in my life had 
she not been a member of the Supreme Court.
    So, I would like to talk about how we maintain and continue 
or, in some cases, regain confidence in the Supreme Court, and 
I would like to get into the question of all the Witnesses of 
ethics.
    Right now, the Supreme Court, that Congress has, basically, 
left ethics to the court itself. Justices do not disclose if 
they are taken on trips, who is paying for various things that 
they might enjoy. I am wondering whether you think that should 
be part of any steps we take. There has been concern about the 
capture of the court and the role that the Federalist Society 
plays.
    Is Federalist Society also taking justices on trips? I 
don't know. Are other groups doing the same thing? Certainly, 
if you had a direct financial interest in a case you would 
disqualify yourself. You might have an ideological interest in 
a case and, yet, be funding justices to go to various trips or 
other benefits.
    What do the various Witnesses think about that subject?
    I will start with you, Ms. Hollis-Brusky.
    Ms. Hollis-Brusky. Thank you, Congresswoman, and I 
appreciate the opportunity to speak to that question.
    I want to circle back for a minute to Mr. Shapiro's 
comments about what the Federalist Society is, and I have to 
say I respectfully dissent with his portrayal of the Federalist 
Society and two things I want to speak to particularly.
    First, I think it is telling that the lone Witness the 
Republican Members of this Committee have called to persuade us 
that there is no inappropriate relationship between the 
Federalist Society and the Republican Party is himself a 
Federalist Society member.
    The second thing I want to mention, he brought up Don 
McGahn's comments about in-sourcing judicial selection. Don 
McGahn was the head of White House counsel, and I was sitting 
next to Mr. Shapiro, in fact, at a lunch talk that Don McGahn 
gave the keynote at, and he doubled down when asked about what 
in-sourcing by the Federalist Society meant in the Trump 
administration.
    He said, ``It means two things. I was in charge of judicial 
selection as the White House counsel. I only hired Federalist 
Society members to work in my office.'' That was the first 
thing. He said, ``They needed to demonstrate loyalty to the 
team. I needed to know that we were on the same page.''
    Secondly, it meant that judicial selection was run by the 
vice President of the Federalist Society, Leonard Leo, who was 
working for the White House, and it was exclusively through Leo 
and McGahn that judges were selected also based on their 
qualifications and credentials and ties to the Federalist 
Society.
    So, what that means is that in order to be selected as a 
judge or part of the judicial selection process within the 
Republican Party as it stands right now under President Trump, 
one has to be involved with the Federalist Society for Law and 
Public Policy Studies, and I think those are important things 
to put in front of the Committee as we debate moves forward.
    Ms. Lofgren. Thank you very much. I wonder if you could 
comment on the ethics question that I asked, the disclosure 
requirements.
    Ms. Hollis-Brusky. Sure, Congresswoman.
    So, as I write in my testimony, my expertise is, largely, 
descriptive and I am going to talk about what I see as the 
major issues when it comes to the public's perception of the 
legitimacy of the Supreme Court.
    I think my colleague, Professor Ginsburg, is better 
positioned to talk about reforms, given his broad expertise in 
comparative politics.
    Ms. Lofgren. All right. Turning to Professor Ginsburg then.
    Mr. Johnson of Georgia. The gentleady's time has expired.
    Ms. Lofgren. I yield back then, Mr. Chair.
    Mr. Johnson of Georgia. The gentleman from Virginia, Mr. 
Cline, is recognized. Five minutes.
    Mr. Cline. Thank you, Mr. Chair. Appreciate that. I will 
briefly ask Professor Hollis-Brusky, have you ever contributed 
to an organization called Demand Justice?
    Ms. Hollis-Brusky. No.
    Mr. Cline. Have you ever contributed to an organization 
called the 1630 Fund?
    Ms. Hollis-Brusky. No.
    Mr. Cline. Because these two groups, Mr. Chair, are left-
leaning groups with former Obama and Clinton staffers at the 
helm that sought to spend $5 million to, in the case of Demand 
Justice, to try and block the confirmation of Brett Kavanaugh.
    The structure of Demand Justice allows it not only to mask 
the names of its donors but the size of their contributors and 
the 1630 Fund reportedly spent $141 million on more than 100 
left-leaning causes during the mid-term election year, which 
surpassed any amount ever raised by a left-leaning political 
nonprofit. The 1630 Fund is reportedly one of the fiscal 
backers of Demand Justice.
    In 2019, Issue One, a think tank, found that liberal dark 
money groups outspent their conservative counterparts during 
the 2018 election, spending 54 percent of the total $150 
million expended by all dark money groups.
    The reality is that dark money is not swamping the system. 
In Citizens United, such spending has never reached even 6 
percent of total political spending in an election cycle.
    In 2018, according to the numbers at the pro-regulation 
Center for Responsive Politics it was between 2.2 percent and 
5.2 percent, depending on how it is calculated.
    So, I would ask Mr. Shapiro if you would like to respond to 
any of the comments that were made by the last Witness.
    Mr. Shapiro. Sure. Thank you, Congressman.
    So, Don McGahn was the White House counsel. That is a 
government position. When he talked about in-sourcing that 
meant that government officials were selecting, debating, 
vetting, and ultimately recommending to the President the 
individuals who would be nominated or considered to be 
nominated for judgeships.
    Membership in the Federalist Society in that has been used 
as a signaling function that has replaced Republican 
allegiances or partisan allegiances.
    Decades ago, before the Federalist Society existed, or even 
in its early years, indications of allegiances would be 
partisan allegiances.
    I think it is a healthier development that we have an 
intellectually rigorous organization--membership organization 
committed to ideas that is being used as that signal that you 
are willing to stand up and say that you dissent from the kind 
of prevailing progressive orthodoxy in the legal profession.
    That is what it is used as. There is no secret handshake. 
There is no oath of allegiance. There is no agreement on any 
particular policy issues or legal interpretations.
    So, I think it is perfectly appropriate for government 
officials, as they are vetting people whom they might want to 
appoint, they look at all sorts of characteristics, including 
any indications of devotion to a particular methodological 
framework to apply or view of interpretive theories because it 
is wrong to ask litmus tests.
    It is inappropriate just to give these posts to cronies. I 
think it is great to find intellectually rigorous judges and 
populate the other positions in an administration with people 
who are demonstrating a commitment to ideas, not simply the old 
partisanship of the past.
    I will leave it there.
    Mr. Cline. Mr. Shapiro, I quoted a couple of statistics 
about the percentage of contributions, of all political 
spending, during the last election cycle and that in 2018 dark 
money represented between 2.2 and 5.2 percent.
    Do you think that statistic suggests that concerns about 
the use of dark money in the political process are accurate or 
are these concerns a way for the left to try and silence voices 
on the right?
    Mr. Shapiro. I think the concerns and so-called reform 
efforts regarding dark money are definitely an attempt to chill 
political speech of various kinds, whether about so-called 
normal politics or about judicial confirmations.
    I mean, I think Demand Justice spent $5 million opposing 
Brett Kavanaugh. The 1630 Fund and the New Venture Fund that 
you mentioned raised nearly a billion dollars in 2017, 2018, 
for all sorts of purposes.
    Look, it is kind of bizarre because you can assume that 
whoever funds--well, I believe [inaudible] is going to the 
exact person. I am not sure what kind of boat or other 
information that gives you.
    Mr. Cline. Thank you, Mr. Chair. I yield back.
    Mr. Johnson of Georgia. Thank you.
    Next, Mr. Deutch, if you are on camera let yourself be 
seen. If not, then we will go to Mr. Jeffries, the gentleman 
from New York, for five minutes.
    Mr. Jeffries. I thank the distinguished Chair for convening 
this hearing as well as for yielding.
    Mr. Shapiro, do you support the current effort by the 
Senate Republican majority to jam a replacement for Justice 
Ruth Bader Ginsburg down the throats of the American people so 
close to an election day?
    Mr. Shapiro I haven't made up my mind precisely on a 
strategy and a lot will depend on how the nomination proceeds, 
how the hearing process commences.
    Senator McConnell has not committed to having a vote before 
the election. It might happen after. We will have to see. I can 
tell you that, historically, the main determinant is whether 
there is a unified government, whether the same party controls 
the White House and the Senate.
    In those cases, in election year vacancies, all but twice 
has there been a confirmation. Conversely, when the Senate and 
White House are controlled by opposing parties only once has 
there been a confirmation.
    So, historically speaking there is plenty of precedent to 
confirm in the same year. Politics always works differently, 
however, so I am not going to--
    Mr. Jeffries. Right. Reclaiming my time, sir. I have got 
limited time.
    You, apparently, took a very different position in 2016 so, 
I am just trying to get an understanding of what accounts for 
the difference.
    I would just ask, Mr. Johnson, for unanimous consent to 
enter into the record a Forbes article dated February 14th, 
2016, written by Mr. Shapiro entitled, ``Don't Confirm Scalia's 
Replacement Until After the Election.''
    Mr. Johnson of Georgia. Without objection.
    [The information follows:]

?

      

                      MR. JEFFRIES FOR THE RECORD

=======================================================================


  DON'T CONFIRM SCALIA'S REPLACEMENT UNTIL AFTER THE ELECTION

                        By Ilya Shapiro

    Justice Antonin Scalia was one of a kind, a giant who 
heralded a renaissance of both originalism and and textualism. 
He reoriented the study and practice of law toward the meaning 
of the actual constitutional and statutory text. As we've seen 
in cases like District of Columbia v. Heller--confirming the 
individual right to bear arms, where both sides argued over the 
meaning of the Second Amendment in historical context--we're 
all originalists now.
    Scalia was also, of course, a conservativee icon: The 
justice most likely to be identified by lawyers and civilians 
alike, and the one most likely to be read by law students. 
Agree or disagree with him on any particular case--I did plenty 
of both--he was a force to be reckoned with.
    Which is all the more reason that in this hazy, crazy, 
bizarre election year, his seat should remain vacant until the 
American people can decide whether they want to swing the 
balance of the Supreme Court, possibly for decades. For Scalia 
is one of four conservatives on the Court, who, when joined by 
Justice Anthony Kennedy, form a majority that has been crucial 
for enforcing the First and Second Amendments, federalism, the 
separation of powers, and other constitutional protections for 
individual liberty.
    If he's replaced by a progressive jurist--or even a 
``moderate'' one--all that comes crashing down and there will 
be no further check on the sorts of executive abuses that have 
only increased under a President who thinks that when Congress 
doesn't Act on his priorities, he somehow gets the authority to 
enact them regardless. (And many criminal-procedure cases--
regarding the Fourth amendment protection against warrantless 
searches and the Sixth amendment right to confront witnesses, 
for example--feature heterodox coalitions of the more 
principled justices against the more pragmatic ones, so a 
centrist would be bad there too.)
    In other words, this is one of the rare instances where I 
agree with a strategy laid out by Senate Majority Leader Mitch 
McConnell and Judiciary Committee Chair Charles Grassley, 
namely not to consider any nominee until after the Presidential 
election. To put a finer point on it, given how consequential 
Justice Scalia's replacement will be, it would be irresponsible 
for the Senate to confirm any nominee President Obama may send 
them.
    A new President will take office in 11 months and the 
stakes are just too high in our politically schizophrenic 
Nation to change the Supreme Court's direction without an 
interceding popular vote. On the other side of the ledger, only 
about 15-25% of the cases each year are decided on a 5 to 4 
vote, so an eight-justice court can be almost fully functional.
    Indeed, because it's exceedingly unlikely that a new 
justice could be confirmed in time to consider and decide cases 
by the end of June, this term's close cases will either be 
released with a 4-4 non-decision (affirming the lower court 
without setting a precedent) or carried over to the next term. 
Next term starts in October, so pushing until the November 
election would cause minimal disruption.
    If the Democrats keep the White House, at that point there 
would really be little justification for the Senate to continue 
its policy and the normal process of hearings and votes could 
begin--subject to filibuster or not, depending on how that 
separate procedural debate goes. Given that no justice has been 
nominated and confirmed during a presidential-election year 
since before World War Two, there would really be very little 
remarkable to having Justice Scalia's replacement play out this 
way. (Justice Kennedy was confirmed in 1988, but (a) he was 
nominated in the year before and (b) this was President 
Reagan's third attempt to fill a vacancy that originated in 
July 1987.)
    Finally, while some may argue that it's somehow 
``illegitimate'' or even unconstitutional for the Senate not to 
provide its ``advice and consent'' as specified under article 
II, section 2, there's simply no basis to conclude that this 
provision constitutes an obligation to Act on presidential 
nominations. Much as Senators have defended their institutional 
prerogative by placing ``holds'' on executive nominees--and 
just like the Senate refused to take up nominees to the 
National Labor Relations Board in a case that resulted in the 
Supreme Court's unanimous invalidation of President Obama's 
recess appointments--they can certainly decide to slow-walk 
this Supreme Court nomination.
    This is purely a political debate; I'm not making a legal 
argument beyond the axiomatic one that the Senate doesn't have 
to do anything it doesn't want to. Justice Scalia's death has 
given the Republican Party the opportunity to make the Supreme 
Court into the national election issue it claims more Americans 
should prioritize.
    Refusing to consider President Obama's nominee--whoever he 
or she is--certainly ratchets up the stakes in an already 
volatile campaign, but giving the American people an 
opportunity to weigh in on such an important matter is every 
legislator's paramount duty.
    Mr. Jeffries. So, on February 14th, which is one day after 
Supreme Court Justice Antonin Scalia died, you wrote an op-ed 
for Forbes entitled, ``Don't Confirm Scalia's Replacement Until 
After the Election.''
    Is there anything in that article that talks about this 
unified government theory of why this would be an exception at 
this moment right now?
    Mr. Shapiro. I don't have the article in front of me but 
what I have argued throughout the saga over the battle to fill 
the Scalia seat and the nomination of Merrick Garland is that 
divided government is different than unified government, and 
equally or more importantly, we had a situation where the 
voters had re-elected President Obama in 2012 and then given 
the Republicans the Senate in 2014.
    So, in effect, 2016 was the deciding rubber match, if you 
will. So, ultimately, voters are going to have to decide 
whether the positions that politicians of both parties are 
taking now--there is a lot of switching sides involved that 
aren't appropriate--
    Mr. Jeffries. Thanks a lot. Reclaiming my time.
    You wrote in your article, just to refresh your 
recollection, ``in this hazy crazy bizarre election year, his 
seat should remain vacant until the American people can decide 
whether they want to swing the balance of the Supreme Court 
possibly for decades.''
    Is that correct?
    Mr. Shapiro. That sounds right.
    Mr. Jeffries. You also argued in this article, ``A new 
President will take office in 11 months and the stakes are just 
too high in our politically schizophrenic Nation to change the 
Supreme Court's direction without an interceding popular 
vote.''
    Is that true?
    Mr. Shapiro. I am sure you are accurately quoting from my 
article.
    Mr. Jeffries. You also wrote in that article that ``Giving 
the American people an opportunity to weigh in on such an 
important matter is every legislator's paramount duty, and 
given how consequential Justice Scalia's replacement will be, 
it would be irresponsible for the Senate to confirm any nominee 
President Obama may send them.''
    Correct?
    Mr. Shapiro. That sounds right.
    Mr. Jeffries. Now, Justice Scalia was a consequential 
justice, we can agree. Was Justice Ruth Bader Ginsburg a 
consequential justice in the history of American jurisprudence?
    Mr. Shapiro. Undoubtedly.
    Mr. Jeffries. This election is not going to take place just 
11 months away from this moment that we are in right now, as 
was the case when you wrote that article. It is a few weeks 
away.
    Is that correct?
    Mr. Shapiro. Correct.
    Mr. Jeffries. Did you say anything, again, about this 
unified theory of government that you and others are now 
inventing at this moment out of convenience? Did you say 
anything about that in this article in terms of making the case 
as to why Scalia should not be replaced?
    Mr. Shapiro. Congressman, I just wrote a book about the 
history of judicial nomination roles.
    Mr. Jeffries. Well, let me ask one last question, sir. Sir, 
let me ask one last question, just to clear it up because my 
time is running out.
    Why does the Scalia standard not apply to Ruth Bader 
Ginsburg? Is it because the conservatives are bent on 
destroying the health care of the American people and having 
the ACA declared unconstitutional, and you are desperately 
trying to secure a Supreme Court majority to accomplish that 
end?
    Mr. Shapiro. Congressman, I see your time is up, but I am 
not going to answer when I stopped beating my wife either.
    Mr. Johnson of Georgia. The gentleman's time has expired.
    Mr. Jeffries. Thank you. I think that answer speaks for 
itself. I yield back.
    Mr. Johnson of Georgia. We now move to Ranking Member 
Jordan for five minutes of question.
    Mr. Jordan. Thank you, Mr. Chair.
    Professor Hollis-Brusky, in Senator Whitehouse's opening 
statement he talked about his assessment was that conservatives 
and Republicans, with the help of the Federalist Society, are 
trying to capture the court was the words he used. Do you agree 
with Senator Whitehouse's assessment?
    Ms. Hollis-Brusky. Thank you for the question.
    I don't make a claim in my written statement and I won't 
make one here today about whether they are, in fact, captured 
or whether the courts are, in fact, captured by the Federalist 
Society.
    What I do make an argument about is that the appearance of 
capture is, certainly, reasonable, given the optics of the 
Trump administration and how big of a role the Federalist 
Society has played in judicial nominations since--
    Mr. Jordan. There are other ways to capture the court? Are 
there other appearances of capturing the court?
    Ms. Hollis-Brusky?
    Ms. Hollis-Brusky. I am not sure. I am not certain what you 
are asking but--
    Mr. Jordan. Let me give you an example. The Speaker of the 
House, the minority leader of the Senate, and a number of our 
Democrat colleagues have said if, in fact, they win the 
election and have power and take control of the government that 
they are going to pack the court with six new justices. They 
are going to go from nine to 15.
    That seems to me you want to use the word capture the 
court, I don't think you could come up with a better way of 
describing capturing the court than what the Democrats are 
proposing. Is that capturing the court?
    Ms. Hollis-Brusky. Historically, that has been called court 
packing. It could, certainly, be viewed as capturing the court 
to some extent.
    Mr. Jordan. Yeah. We got this false idea that somehow the 
Federalist Society has got this conspiracy going, using dark 
money, when, in fact, as the gentleman from Virginia pointed 
out, you got this Demand Justice spending $5 billion to stop 
Justice Kavanaugh.
    You have got these two organizations--1630, New Venture 
Fund, spent $987 million in 2017 and 2018 alone. That is the 
real dark money. The real capturing of the court is what the 
Democrats want to do. I mean, they have been straight up about 
it. We are going pack the court. We are going to go from nine 
justices, which has been the norm of the court for 150 years, 
we are going to go to 15.
    Mr. Shapiro excuse me, Mr. Shapiro, Ms. Hollis-Brusky also 
said people lose faith in the Rule of law when what the 
Democrat Witnesses and Senator Whitehouse talked about, if, in 
fact, that would happen.
    If the Democrats win power and pack the court, would that 
cause Americans to lose faith in an important institution our 
government, the Supreme Court?
    Mr. Shapiro. Well, I think two wrongs don't make a right 
and court packing, historically, has been a wrong that has 
inured to the detriment of our country and, for that matter, to 
the party that has propounded it.
    Mr. Jordan. I think the Senator also said membership in 
groups dedicated to restructuring the judiciary. He used that 
phrase in his opening statement.
    Let me ask this question. Does the Federalist Society file 
amicus briefs with the Supreme Court on important cases or on 
any case, for that matter?
    Mr. Shapiro?
    Mr. Shapiro. It does not.
    Mr. Jordan. Does it endorse or oppose judicial nominees?
    Mr. Shapiro. It does not.
    Mr. Jordan. Does not. The entities on the left that are 
helping the Democrats, spending $987 million in two years 
alone, Demand Justice spent $5 million just to go after Judge 
Kavanaugh, they do those two things, don't they, Mr. Shapiro?
    Mr. Shapiro. They do, and the American Constitution Society 
takes positions all the time, and the ABA takes positions all 
the time of a particular ideological bent.
    Mr. Jordan. So, it looks like the Democrats are going after 
the one organization that is actually doing it right, not 
filing briefs--amicus brief with the court, not endorsing 
candidates, not speaking out on certain cases. They are the 
ones that are somehow capturing the court when, in fact, 
Democrats have all said for years now but, certainly, in the 
last week after the passing of Justice Ginsburg that they are 
going to pack the court.
    That is the real capture of the court we need to be 
concerned about. That is what we need to be focused on 
stopping.
    With that, I yield back.
    Mr. Johnson of Georgia. I next will recognize the gentleman 
from California--excuse me, from Hawaii, Ted Lieu, if he is on.
    [Pause.]
    Mr. Johnson of Georgia. Oh. Ted Lieu from California. I am 
sorry. He is not on.
    With that, we will move--
    Mr. Jordan. Mr. Chair, I could just ask unanimous consent 
to enter into the record the piece from the Wall Street Journal 
yesterday, ``Questions for Senator Whitehouse.''
    As I indicated at the start of the hearing, we were not 
able to question the Senator so I would ask unanimous consent 
to enter this piece into the record.
    Mr. Johnson of Georgia. Without objection.
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    Mr. Johnson of Georgia. We will now go to the gentleman 
from Arizona, Mr. Stanton.
    Mr. Stanton. Thank you very much, Mr. Chair, for holding 
this hearing. Thank you to the Witnesses for being here today.
    A few days ago, our Nation lost an icon, an amazing 
pioneer--legal pioneer, social justice pioneer. Justice Ruth 
Bader Ginsburg led the way for some of the most fundamental 
rights for Americans today. Without her, our American judicial 
system and way of life would be far different. So, I extend my 
deepest condolences to her loved ones and those around the 
country who are mourning her loss.
    When our Founding Fathers established our republic, they 
were keenly aware of the importance of an independent 
judiciary, one that does not give in to pressure by outside 
interests but instead remains committed to the Rule of law and 
the people it serves.
    The effectiveness of our laws and the respect given to them 
by the American people rely on independent fair decisions from 
our judiciary. If our judicial system is incapable of doing so, 
then our democracy and Rule of law as we know it are at stake.
    It is extremely troubling that a 2019 Quinnipiac poll--
University poll found that most Americans believe that the 
Supreme Court is motivated by politics, not by law.
    Our judicial system works when the American people believe 
it is fair, independent, and transparent, and I hope we can all 
agree that our judicial system needs to be independent and free 
of partisan entanglements that we so often see in other 
branches of government.
    One area I want to talk about here today was amicus briefs, 
amicus briefs filed with the U.S. Supreme Court in particular. 
Amicus briefs are legal documents filed by nonlitigants with 
strong interest in the subject matter. They are meant to 
provide relevant information that the court may wish to 
consider before rendering a decision.
    However, to file an amicus brief there is a cost that can 
range anywhere from $10,000 to $50,000 and above. There are 
over 500 briefs filed with the Supreme Court every year. That 
adds up to a large sum of money, and right now there is no 
disclosure requirements of the funds used to pay for these 
briefs.
    Judge Gertner, I would like to ask you a question in 
particular. In one high-profile case this coming Supreme Court 
term, Google v. Oracle, a group called the Internet 
Accountability Project filed an amicus brief supporting 
Oracle's position.
    Bloomberg subsequently reported that Oracle, one of the 
parties to the case, had donated between $25,000 and $99,999 to 
the Internet Accountability Project last year.
    IAP did not disclose that fact that they had been funded 
directly by Oracle, one of the parties to the litigation and 
the Supreme Court's rules did not require such disclosure.
    I want to get your opinion on this. As a general matter, do 
you think it is appropriate for an amicus to file a brief in a 
case where it directly receives funding from one of the 
parties?
    Ms. Gertner. I have two answers to your question.
    I think it is a disclosure matter. I think there should be 
a disclosure. The problem is that with respect to Supreme Court 
practice, just as with Representative Lofgren's question, this 
has to be something that the Supreme Court imposes on itself.
    It can't be something that the Congress imposes on the 
Supreme Court because of separation of powers issues. I think 
you are quite right, that ought to be disclosed. It really is 
not the case that the right and the left are equivalent with 
respect to pressuring the court.
    I just want to sort of look at the other answers to other 
questions here, which was that the left, as Michael Greve, who 
is a Federalist Society member, said, ``On the left there are a 
million ways of getting credentials. On the right there is only 
one way.''
    However, one characterizes the Federalist Society, it is 
wrong that it be the way to the Federal bench as opposed to 
other organizations and other funnels that would channel people 
to the bench.
    Mr. Stanton. Your Honor, I have one more--that is a great 
point. I just have one additional question. I want to make sure 
I have--my time is short. I want to talk about the Judicial 
Code of Ethics.
    The judicial code of ethics applies to every other Federal 
judge except Supreme Court justices. Especially now, what 
message do you think it sends to the American people that the 
Supreme Court does not have a code of ethics and what message 
would it send if they adopted a code of ethics upon themselves?
    Ms. Gertner. I think the Supreme Court should adopt a code 
of ethics. I think we are sufficiently divided. There are these 
kinds of issues that are challenges to judicial independence, 
that all judges should participate in a judicial code of 
ethics. The Supreme Court must, however, impose it on itself. I 
think that that is the right thing to do.
    Mr. Stanton. All right. I have a short time.
    Any of the other Witnesses like to comment on the judicial 
code of ethics for the Supreme Court?
    Mr. Ginsburg. I might say one thing, if I can, 
Representative, which is that the For the People Act passed 
last year does call on the Judicial Conference of the United 
States to draft such a code of ethics.
    So, only the court can impose it on itself in our 
constitutional system. We can give them some content for that 
and that would increase the pressure on the court to do so.
    Mr. Stanton. Maybe the Federalist Society could take this 
issue up, Mr. Shapiro.
    I yield back.
    Mr. Johnson of Georgia. The gentleman's time has expired. 
You may respond, Mr. Shapiro.
    Mr. Shapiro. I am not a judicial ethics expert and I don't 
represent the Federalist Society. I will do what I can.
    Mr. Johnson of Georgia. Thank you.
    We will next go to the gentleman from Ohio, Mr. Chabot, 
five minutes.
    Mr. Chabot. Thank you very much, Mr. Chair, and thank you 
to the Witnesses for testifying at this afternoon's hearing.
    In light of the recent passing of Justice Ruth Bader 
Ginsburg, this hearing is not only timely but relevant.
    According to the Administrative Office of the United States 
Courts, there are nearly 70 Federal court vacancies, mostly for 
District court appointments that currently sit unfilled.
    Thus, in his administration, the President has successfully 
appointed over 200 Federal judges including Supreme Court 
Justice Neil Gorsuch and, of course, Brett Kavanaugh.
    That success rate is attributed to the quality of the 
lawyers and jurists that the President has nominated, and that 
the Senate has confirmed for the Federal bench.
    It is that success rate that has drawn criticism about the 
membership in organizations like the Federalist Society, which 
was founded on, quote, ``principles that the State exists to 
preserve freedom, that the separation of governmental powers is 
central to our Constitution, and that it is emphatically the 
province and duty of the judiciary to say what the law is, not 
what it should be.''
    Somehow those principles in which it was founded were 
ignored when the Judicial Conference, the organization that 
sets policy for the Federal judiciary, issued Draft Advisory 
Opinion No. 117, which found that formal affiliation with the 
Federalist Society, whether as a member or in leadership 
position, was inconsistent with the code of conduct's canons.
    That same advisory opinion did not raise similar concerns 
with a similar membership organization, the American Bar 
Association.
    Advisory Opinion 117 was drafted despite canon four of the 
judicial code of conduct, which allows judges to serve as 
members and officers of nonprofit organizations, quote, 
``devoted to the law, the legal system, or the administration 
of justice,'' unquote, which I would submit is exactly what 
sort of work the Federalist Society undertakes.
    Mr. Shapiro, I would like to ask just a few questions from 
you with the time I have remaining. At the outset, would you 
agree with the general premise that I just laid out?
    Mr. Shapiro. I think I would agree with that, yeah.
    Mr. Chabot. Thank you.
    Now, in your view, is the Federalist Society devoted to the 
law, the legal system, and the administration of justice as 
defined in canon four of the code of conduct for United States 
judges and--first of all, would you say that is accurate, in 
your view?
    Mr. Shapiro. I haven't studied the judicial canons in 
depth. It sounds to me like it is accurate.
    Mr. Chabot. Okay. Thank you.
    Does the Federalist Society take policy positions of any 
sort?
    Mr. Shapiro. It does not.
    Mr. Chabot. Okay. Does the Federalist Society actively 
lobby Congress?
    Mr. Shapiro. It does not.
    Mr. Chabot. Could anyone be a member of the Federalist 
Society? Is that accurate?
    Mr. Shapiro. Anyone can. I believe in law schools there is 
a $5 membership fee.
    Mr. Chabot. Okay. Five dollars.
    Would you agree that the American Bar Association takes on 
a more politically active role than the Federalist Society?
    Mr. Shapiro. Yes, and it is not even close.
    Mr. Chabot. Could you describe, briefly, how the two 
associations, the two organizations, are different? How they 
differ?
    Mr. Shapiro. Sure. I think I was briefly a member of the 
ABA out of law school. They gave law students free memberships 
or something like that. This is not your father's or your 
grandfather's ABA.
    Lewis Powell was the President of the ABA and from that 
that was a launching pad for him to join the Supreme Court. The 
prestige of the organization has gone down, as has the 
membership. I forget what the percentage of lawyers in the ABA 
is now, but it is significantly lower.
    The ABA does take positions both on amicus briefs and in 
terms of just organizational core positions on various issues 
of controversy, sometimes even nonlegal issues, I think I 
recall.
    The Federalist Society does none of that. The Federalist 
Society is purely a membership organization that organizes both 
social and professional events.
    Mr. Chabot. Thank you. In the short time I have got left, 
let me just say that you mentioned you had been a member of a 
dues-paying member of the American Bar Association.
    I was, too, for quite a few years until they came out and 
took a position on Roe v. Wade against the pro-life position. I 
happen to be pro-life and felt that I couldn't any longer in 
good faith pay dues to that organization. So, I dropped out of 
the ABA and was better for it.
    So, thank you very much. I yield back my time.
    Mr. Johnson of Georgia. The gentleman's time has expired.
    Next, the gentleman from 10nessee, Mr. Cohen, for five 
minutes.
    Mr. Cohen. Thank you, Mr. Chair.
    It has been an interesting exercise in fiction. Ever since 
Bush v. Gore when the Supreme Court decided to kill the vote in 
Florida and elect a Republican candidate for president, the 
court has lost and continues to lose the respect that it once 
had as an independent body that determined cases by the law 
instead of by politics.
    Bush v. Gore was a low point that has continued in a rather 
parallel course, and we see now with the Federalist Society 
having control over who gets on the bench what we are seeing is 
diminution and the destruction of American values.
    Mr. Shapiro, do you believe in diversity among judges and 
among government leaders?
    Mr. Shapiro. Depends how you define diversity.
    Mr. Cohen. I don't define it as White men. That is what 
President Trump has appointed, predominantly, and at the Court 
of Appeals he has appointed only whites. A few women, not many. 
Almost all White males, no blacks, no Hispanics. A record that 
is even worse than any President since Ronald Reagan.
    He has appointed about 200 judges and only eight of them 
have been African American. Only eight have been Hispanic. 
None--no African Americans to the Court of Appeals.
    That is despicable because diversity is an important part 
of what America is about, giving people opportunities, giving 
people--like Clarence Thomas got his opportunity. He hasn't 
risen to the level of Thurgood Marshall but he has been on the 
bench and served Scalia well.
    People and George Bush understood appointing an African 
American. Donald Trump doesn't get it. The Federalist Society 
apparently doesn't get it either and they apparently got some 
problem with Episcopalians and Presbyterians and Unitarians and 
maybe even Jews.
    It seems to be predominantly Catholics that they get when 
they recommend. Catholics are great people and I almost--my 
brothers went to Catholic schools and I came close to doing it.
    They shouldn't have a monopoly on the bench, and to the 
exclusion of Episcopal, other Protestant religions, and Jewish 
people.
    Merrick Garland happened to be Jewish. Ruth Bader Ginsburg 
happened to be Jewish. Her wish wasn't considered. Merrick 
Garland's nomination wasn't. The fantasy that has been put on 
display here by you, Mr. Shapiro, that there is something okay 
when the President is of the same party of the Senate to allow 
a nominee to go through in the last couple of months because 
the President is of the same party is basically saying that 
there is no basis to believe that the judges are really ruling 
based on philosophy and the law but that it is all about 
politics and we want to get in our team.
    Merrick Garland should have been given a vote, and nobody 
talked back then about oh, well, the President was of a 
different party and that is why the Rule exist.
    No, it was said by McConnell and all his acolytes that it 
was that the nomination was in an election year and we don't do 
that, and now they are hypocrites turning around. The hair of 
the hypocrite is so apparent on the Republican Senate and on 
you, Mr. Shapiro.
    You mentioned about these judges becoming so controversial 
and being along party lines. I know you don't have much respect 
for the American Bar Association. I do. They look into each of 
the nominees and they rate them as qualified or not qualified.
    When President Obama nominated people, no person he 
nominated was considered not qualified. President Trump has 
nominated nine people who were not qualified, seven of whom 
were approved by the Republican Senate even though they weren't 
qualified, and some of those people had allegiances and respect 
of Confederate histories and didn't respect Brown v. Board of 
Education and they are White people who don't respect the Brown 
v. Board of Education and want to repeal Roe v. Wade. What you 
have done with the Federalist Society is the end of the Supreme 
Court as we knew it and you should be embarrassed.
    I yield back the balance of my time.
    Mr. Johnson of Georgia. The gentleman yields back.
    Mr. Biggs from Arizona is recognized for five minutes.
    Mr. Biggs. Thank you, Mr. Chair.
    I am really kind of disappointed that Senator Whitehouse 
chose to leave because I had some questions I wanted to ask 
him.
    Because he is always talking about the dangers of dark 
money in politics, and what I would ask him and say, do you 
support your own past comments encouraging dark money in 
liberal politics.
    Why is it okay for you, Senator Whitehouse, to accept and 
encourage support from dark money organizations while at the 
same time attacking dark money?
    I would ask him if he supported Arabella Advisors' efforts 
to plan for and organize unrest should President Trump be 
reelected and, moreover, what has just been reported this very 
day, the unrest that they are paying for to attack Lindsey 
Graham and Mitch McConnell in the Senate.
    I would ask him if he supported Arabella Advisors 
facilitating a fake news organization as a way to avoid FEC 
rules banning micro targeting by political organizations. I 
would ask him a few of those questions.
    I would ask him this question. I would say, you just said, 
I will quote what he said, ``a well-stocked bench can institute 
policy when Congress fails to act,'' closed quote. I guess my 
question would be isn't that seeking some kind of judicial 
activism.
    Mr. Chair, I don't know if somebody has got their phone 
going off or what. I can hear somebody's phone.
    So, I would ask him, because if you start talking about 
capturing the court and some of you talking up there that I 
heard today, and Senator Whitehouse, I find myself saying, 
where have you been for the last 40 some-odd years.
    When I first came out of law school, conservative 
intellectuals, court observers, and writers were talking about 
what you are calling court capture today but a liberal activist 
bent in the Federal courts.
    Judicial activism. That was what was going on. That was 
okay because that is what you want. That is what you want.
    The reality is this. Senator Whitehouse didn't like what 
happened when the Pacific Legal Foundation took him to court 
representing somebody in his district when he was the AG in 
that State.
    I will tell you one other thing that I have written 
recently. It says you can't forget that Democrats believe the 
best bet for enacting their policies is a legislatively active 
Supreme Court.
    They have promised to pack the court if President Trump 
gets any more of his nominees on the bench, and as my colleague 
from Ohio said, what better way to capture the court than to 
pack it.
    So, when someone says and indicates that the conservatives 
are trying to capture the court by advertising, lobbying, and 
supporting nominees by this president, where were you four 
years ago or six years ago when the same thing was going on for 
liberal judicial activists being nominated by President Obama?
    When I hear let us talk about diversity, how about 
diversity on the court? How about different judicial 
philosophies? Well, you don't want that, do you? I would 
suggest you probably don't want that.
    So, that becomes a problem. How about when you start 
talking about not party and you start talking about procedure 
and regulation, how important that is to restore the 
credibility of courts, how about getting jurists that follow 
the Constitution instead of actively trying to legislate from 
the bench?
    Who are trying to create law, not interpret law? Not apply 
the law to the case before them?
    I think of the first case of seeing this kind of 
outrageousness conduct towards a judicial nominee. You remember 
Robert Bork. I watched that hearing. I was a practicing young 
lawyer at the time. I could not believe what was happening.
    Then the criticisms levied by my colleague across the aisle 
from Tennessee about Clarence Thomas. I watched that. That was 
an unbelievable hearing, the ruthless nature of that. It was 
all topped by just a couple years ago, Brett Kavanaugh.
    So, I will tell you, if you want to see people capture the 
court, then you need to pull yourselves back out of it as well.
    With that, Mr. Chair, I have some documents I would like to 
submit for the record.
    I have got the letter from James Burling dated September 5, 
2018, regarding Senator Whitehouse. I have got an article from 
Fox dated two days ago, questions from Senator Whitehouse from 
the Wall Street Journal. Another piece dated from September 22, 
2020. Another one about Sheldon Whitehouse.
    Another one about Whitehouse--``Senator Whitehouse Blames 
Dark Money.'' Another one called ``Schumer-Tied PAC Received 
$1.7 Million from Dark Money Group.'' Another one called 
``Democrats Used to Rail Against Dark Money: Now They are 
Better at it Than the GOP.''
    ``Documents Reveal Massive Dark Money Group Boosted 
Democrats in 2018.'' ``Left's Point Person for Post-Election 
Violence Prep Linked to Arabella Advisors.'' ``Wealthy Donors 
Pour Millions into Fight Over Mail-in Voting.''
    ``Newsroom or PAC? Liberal Group Muddies Online Information 
Wars.'' Facebook--
    Mr. Johnson of Georgia. The gentleman's time has expired.
    Mr. Biggs. I know, and these are for submission to the 
record.
    Mr. Johnson of Georgia. Okay. All right. Proceed.
    Mr. Biggs. Thank you. ``Facebook Cracks Down on Fake News 
Sites Including Far Left Operation Funded by Dark Money.'' 
``Network of News Sites Must Register as Political Committee 
Due to Democratic Links, Complaint Alleges.'' Then, finally, 
``Climate Change Dark Money.''
    If they would be admitted, sir.
    Mr. Johnson of Georgia. Without objection.
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    Mr. Biggs. Thank you.
    Mr. Johnson of Georgia. The gentleman's time has expired.
    We will commence a second round of questions.
    Mr. Shapiro at this time I would like to excuse Judge 
Gertner, who I understand must depart at 5:00 p.m.
    So, without objection, you are excused and thank you for 
your appearance today.
    Ms. Gertner. Thank you very much.
    Mr. Johnson of Georgia. Thank you.
    Mr. Shapiro, Professor Hollis-Brusky mentioned--I believe 
it was her in her testimony that when the U.S. Supreme Court 
decided the case of Citizens United it, in a fit of judicial 
activism, after discarding the robes of originalism and 
textualism, decided an issue that was not brought before the 
court, which was whether a corporation had a First amendment 
right.
    Do you agree with her characterization of the Supreme 
Court's action as judicial activism?
    [No response.]
    Mr. Johnson of Georgia. You should unmute.
    Mr. Shapiro. If I did. [Inaudible.]
    Mr. Johnson of Georgia. Okay. Can you hear me? Okay, we can 
hear you now.
    Okay. We can't hear you now.
    Mr. Shapiro. I am on?
    Mr. Johnson of Georgia. You are popping in and out.
    Mr. Shapiro. Mr. Chair.
    Mr. Johnson of Georgia. I will note while you are 
struggling to answer my question my time is running.
    Mr. Shapiro. It looks like a green light, Mr. Chair. I 
don't know what is going on here.
    Can you hear me? I am sorry.
    Mr. Johnson of Georgia. Yes, and I would like for you to 
answer that question.
    Mr. Shapiro. Sure. Sorry. So really quick, activism has 
been thrown around by both parties when they don't like the 
opinions. I don't like any activism in general.
    Mr. Johnson of Georgia. Well, let me ask the like this. Let 
me ask the question like this, Mr. Shapiro.
    Was the issue of corporations having a First amendment 
right of freedom of speech the issue that was first argued 
before the U.S. Supreme Court in the Citizens United case?
    Mr. Shapiro. It was not. It was Justice Alito asked the 
deputy solicitor general whether it would be possible to ban a 
book that was produced using corporate funds, and the answer 
was essentially quite possibly.
    Mr. Johnson of Georgia. So, what?
    Mr. Shapiro. That opened this larger question.
    Mr. Johnson of Georgia. Yeah. Well, I mean, the court ended 
up deciding a question that was not brought before it by the 
litigants. Isn't that correct?
    Mr. Shapiro. Yes. On occasion, during the course of oral 
argument or other Supreme Court proceedings, other issues arise 
that the court requires supplemental briefing or even, as in 
this case.
    Mr. Johnson of Georgia. On the issues that were originally 
brought by the parties to the court for a decision, that was a 
fundamental breach of appellate court etiquette.
    Do you agree with that, Professor Hollis-Brusky?
    Ms. Hollis-Brusky. I am not sure about rules of etiquette, 
but I can tell you that traditionally that has been one way to 
define judicial activism is when courts and judges invite 
questions that were not briefed to be brought before them so 
that they can make decisions they think are appropriate.
    Mr. Johnson of Georgia. So, one thing that the Federalist 
Society is known for is that its members who serve on the bench 
are generally loathe to support any regulations of businesses, 
to support Second amendment rights, to be in favor of 
overturning Roe v. Wade, deregulation of business, and they 
also have a habit of wanting to never take race into account in 
making decisions, and they generally don't believe in measures 
that would promote racial balance.
    Isn't that correct, Mr. Shapiro?
    Mr. Shapiro. There were a lot of statements there I would 
have to take individually. Do you want to ask me one of them?
    Mr. Johnson. of Georgia. Well, let us take Roe v. Wade, 
number one. Federalist Society judges are prone to want to 
overturn Roe v. Wade, correct?
    Mr. Shapiro. I don't know what is in their heart of hearts. 
I don't think a single one has had the opportunity yet to Rule 
on the question of whether Roe v. Wade should be overturned.
    Mr. Johnson of Georgia. Well, we do know that Roe v. Wade 
is a litmus test for Federalist Society judicial nominees to be 
in favor of overturning Roe v. Wade. Isn't that correct?
    Mr. Shapiro I have not been in meetings in the White House 
counsel's office. So, I don't know exactly what is asked. I 
highly doubt, that type of litmus test question is asked.
    Mr. Johnson of Georgia. Professor Hollis-Brusky, what is 
your opinion on that question?
    Ms. Hollis-Brusky. So, like Mr. Shapiro, I have not been 
inside the White House counsel and observed anything directly. 
What I would say is that with the rise of Leonard Leo as the 
vice President of the Federalist Society who is very openly 
anti-abortion, anti-reproductive rights, given that he is 
controlling judicial nominations, one could make some 
inferences from that.
    So, I will go back to the appearance that with Leo in the 
White House that that certainly could be a litmus test 
question.
    Mr. Johnson of Georgia. Thank you.
    Since the clock was running during my time with the 
technical difficulties, I want to yield a minute to my friend 
and colleague from the State of Texas, Sheila Jackson Lee.
    Ms. Jackson Lee. Let me thank the Chair very much and the 
Ranking Member as well for their courtesies. I am a guest on 
this Subcommittee. I am a Senior Member on the Judiciary 
Committee.
    I was reading the definition of the Federalist Society that 
indicated their textualist and originalist interpretation of 
the Constitution. I hold this book and it is well known that 
the Constitution has been viewed and it is most effective as a 
living breathing document to ensure that all the nuances of 
America are protected under the law.
    I don't believe we had any need to lobby this present 
administration because the White House counsel that he had at 
the very early stages was very engaged with the Federalist 
Society. So, rather than lobby, they simply had to pick up the 
phone and call or simply had to submit a list.
    Let me ask Professor Hollis-Brusky, and thank you so very 
much, what happens when you have a court that is skewed 
specifically on a political basis, and as someone who was in 
Florida during 2000 actually counting chads, and because of the 
secretary of State Republican, the governor Republican, our 
counting was actually cut off.
    When the two parties went to Supreme Court--and I say 
parties, principals--it was a 5 to 4 political decision, and 
that decision was also contrary to the vote.
    Can you just give the downside of what happens when a court 
is so skewed one way or the other as it relates to justice?
    Ms. Hollis-Brusky. Thank you, Congressman.
    I will give two answers. One, from Alexander Hamilton's 
famous essay on the judiciary, Federalist 78: ``We know that 
the judiciary has no power to enforce its own decisions and its 
only real power is the power to persuade the public that its 
decisions are well reasoned and legitimate, not grounded in 
politics, not grounded in partisan politics.''
    So, any decision that has the appearance or the valence of 
partisan politics is problematic for judicial independence and 
for judicial legitimacy. Political science corroborates this. A 
wealth of political science research shows that the single 
greatest threat to judicial legitimacy is the perception that a 
Supreme Court is acting on politics, that it is politicized, 
not an independent arbiter of the law.
    So, I would give you an answer from Hamilton and an answer 
from political science, but they are basically the same. 
Legitimacy suffers.
    Mr. Johnson of Georgia. Reclaiming my time.
    Ms. Jackson Lee. Yield back. Thank you.
    Mr. Johnson of Georgia. Which has expired.
    I will now turn to the gentlelady from Alabama for her five 
minutes.
    Ms. Roby. I thank Chair, and I yield to the gentleman from 
Ohio.
    Mr. Jordan. I thank the gentlelady for yielding.
    Professor Hollis-Brusky, is it appropriate for Democrats to 
impeach the President for following the law?
    Ms. Hollis-Brusky. I am not a lawyer or constitutional 
lawyer myself. Impeachment is a political process, and it has 
always been a political choice.
    Mr. Jordan. So, you think it is? You think what the Speaker 
suggested on Sunday on one of the Sunday talk shows that the 
President following what the Constitution requires, naming and 
putting up a nominee for a court vacancy, do you think it is 
appropriate for the Speaker and the Democrats to move ahead 
with impeachment for that reason?
    Ms. Hollis-Brusky. That is not what I said.
    Mr. Jordan. No, but that is what I am asking.
    Ms. Hollis-Brusky. What I said is that impeachment is a 
political process.
    I am not taking a position on what is and what is not an 
impeachable offense. I don't feel qualified to answer that.
    Mr. Jordan. Well, there can't be an impeachable offense 
because he is doing what the Constitution says. So, I am just 
asking if doing what the Constitution says, nominating an 
individual for the Supreme Court now that there is a vacancy 
and the Speaker said she was open to impeaching the President 
to stop that nominee from being confirmed in the Senate, I am 
just asking you if that is appropriate.
    Ms. Hollis-Brusky. What I will say about that comes from my 
understanding of comparative democratic norms and how 
democracies die, which is we are in a process where parties are 
escalating against one another, and according to the political 
science, that is how democracies die, when you abandon mutual 
toleration for the other party and respect, and if you don't 
engage in forbearance, which is restraint of one's power to 
respect the spirit of the constitutional system.
    So, what I am hearing from you sounds a lot to me like 
another level of escalation that we have been engaged with 
between these two parties over something.
    Mr. Jordan. Is packing the court escalation?
    Ms. Hollis-Brusky. I think Levitsky and Ziblatt in ``How 
Democracies Die'' would call this constitutional hardball, and 
I think yes, they would characterize it as another escalation.
    Mr. Jordan. Yes. It has been norm for 150 years and they 
are going to put six new justices, take it from nine to 15. 
They have been very clear about that. That is the biggest 
escalation you could talk about.
    You earlier said that the Federalist Society's actions and 
conservatives' actions, quote, ``have led people to lose faith 
in the Rule of law.''
    Would Americans lose faith in the Rule of law if the 
Democrats proceeded with impeachment based solely on the fact 
they are trying to slow up the President's constitutional duty 
to name someone to the court, and would Americans lose faith in 
the Rule of law if the Democrats packed the court?
    Ms. Hollis-Brusky. Was that a question for me, Congressman?
    Mr. Jordan. Yep.
    Ms. Hollis-Brusky. Okay. Again, I would take a step back 
here and say it doesn't matter where this behavior started if 
we end in mutually assured destruction. So, what I am seeing 
happening is escalation and I believe that the President 
putting a nominee through this close to the election will be 
understood also as escalation, given what happened with the 
Garland nomination.
    So yes, I think that court packing would be the next step 
in escalation and were the Republicans to take back power they 
may expand the court again or engage in jurisdiction stripping. 
This is exactly the kind of behavior that they talk about.
    Mr. Jordan. So, are you opposed to the Democrats' court 
packing plan?
    Ms. Hollis-Brusky. I haven't read the--I am listening to 
reports of it today and I am not--
    Mr. Jordan. Well, it is a simple question, Professor. The 
Democrats want to add six people to the court. Are you for that 
or against it?
    Ms. Hollis-Brusky. It would have to depend on what happens 
over the course of the next month and what the Republicans do.
    Mr. Jordan So, if the Republicans follow the Constitution, 
the President names a nominee and the Senate does what it is 
supposed to do, have hearings and confirm or deny that nominee, 
we will have to see what happens. If they follow the 
Constitution, somehow that is escalating.
    That is following the law. That is following the 
Constitution. When the Democrats add six to the court that is 
okay? Is that what you are saying?
    Ms. Hollis-Brusky. All I will say is that according to 
Levitsky and Ziblatt, the only way to get out of this vicious 
cycle of escalation is for the party in power, and that right 
now is the Republicans, to engage in forbearance, which is 
intentional restraint of one's power to respect the spirit of 
the broader constitutional system to take the totality of the--
    Mr. Jordan. Yeah. I think the spirit that should be 
respected is what the American people elected the President to 
do and elected a Republican Senate to do, and that is put 
conservatives on the court, and all we are doing is following 
the Constitution to do that.
    Mr. Ginsburg, do you agree with the Democrats' plan to pack 
the court?
    Mr. Ginsburg. I would distinguish between the expanding the 
number of members of the court and packing it, and as the 
number is.
    Mr. Jordan. Well, you think they are going to put 
conservatives on the court?
    Mr. Ginsburg. I could imagine a bipartisan agreement that 
would restore the balance.
    Mr. Jordan. You are crazy. There is no way that is going to 
happen.
    [Laughter.]
    Mr. Jordan. They are going to add six new people to the 
court, and they are going to make three liberals and three 
conservatives? In your dreams.
    Mr. Ginsburg. I would like to see a restoration of the 
filibuster rule, which would require that kind of bipartisan 
cooperation. That is how we get out of this.
    Mr. Jordan. Well, they have said they are getting rid of 
that too, Mr. Ginsburg. Senator Schumer said he is getting rid 
of the filibuster.
    Mr. Ginsburg. This has been an escalation as you well know.
    Mr. Jordan. You guys are living in a dream world because 
that is not where they are at. They have said they are going to 
impeach the President for following the law. They are going to 
pack the court.
    They are going to get rid of the filibuster and a whole 
host of other crazy things that go right at the structure, and 
somehow you guys come here and blame Republicans for the 
concern.
    I think the American people see through it. They see what 
the Democrats are trying to do, change fundamental 
institutions, fundamental structures in our government, and you 
are saying oh, it is going to be warm and fuzzy and bipartisan. 
There is no way.
    With what they are threatening, what they are pressuring, 
what they are saying, no way that is going to happen.
    Mr. Ginsburg. I would say it should be bipartisan, Mr. 
Jordan.
    Mr. Jordan. Would adding six new justices cause people to 
lose faith? Same question I asked Professor Hollis-Brusky. Mr. 
Ginsburg, would that cause Americans to lose faith in our Rule 
of law?
    Mr. Ginsburg. I think the question, again, is who are they 
and how is it done, and I don't think that just adding justices 
on its own is fundamentally going to cause people to lose 
faith. If it is part of this process of partisan escalation 
then yes, and that is why I would like to see the actual 
restoration of this.
    Mr. Jordan. Well, so I would disagree with that. Adding six 
new people to the court that is like saying oh, we don't like 
what is happening, so we are going to change the rules. We are 
going to say that now we get the court is 15. I don't see how 
that strengthens our institutions or helps in any way.
    Mr. Ginsburg. Well.
    Mr. Jordan. Is packing the court capturing the court? Seems 
a term that Mr. Whitehouse used.
    Mr. Ginsburg. Packing--
    Mr. Jordan. Some of you have used this in your statements. 
Capturing the court, it seems to me, the most obvious capturing 
of the court is when you say we are going to change the rules 
and we are going to add six of our folks to it. We will capture 
it that way. Is packing the court capturing the court, Mr. 
Ginsburg?
    Mr. Ginsburg. One way to capture a court is to control its 
personnel and establish a dominant faction on the court.
    Mr. Jordan. It is the easiest way. Maybe the easiest way.
    Mr. Ginsburg. Yeah. Yeah.
    Mr. Jordan. Change the rules. We will changes the rules so 
we get control of the court. We are not going to follow the 
rules. We are not going to let the American people decide 
through elections who gets elected, who gets to nominate. We 
lost the election, but now we won one, so we are going to add 
six new people to the court.
    That is not fair, and the American people understand it. It 
was tried once. Thank goodness it didn't happen, and I hope it 
doesn't happen. I hope it never happens.
    I yield back.
    Mr. Johnson of Georgia. The gentleman yields back.
    Next up is the gentlelady from California, Ms. Lofgren, for 
five minutes.
    Ms. Lofgren. Thank you, Mr. Chair.
    It is interesting listening to the latest exchange because 
there are some assumptions that are unwarranted.
    It is as if Mr. McConnell succeeds in jamming through a 
confirmation within either after presidential election or 
before that somehow that is going to result in an expansion of 
the court. No one has said that. Certainly, Mr. Biden has not 
said that.
    I think the real issue is following the rules and being 
fair is important for the preservation of our democracy, and we 
have seen, in my view, this administration has repeatedly 
violated norms and, in some cases, statutes because he can in 
pursuit of power.
    There are some things that are more important than power 
and keeping power, and that is the preservation of our 
democratic republic. There have been plenty of times when I 
have been on the losing side of an election. The person I was 
backing didn't win.
    You don't do everything. You don't violate rules and norms. 
You don't jeopardize confidence in the democracy just to keep 
power. That way leads to the end of this beautiful experiment 
in our democracy.
    So, I would just like to say I think it is important. The 
gentleman from Ohio and the Ranking Member was talking about 
following the rules. The Rule was set and there is a little 
creative spinning of it now, but Members of the Senate, when 
the last Obama nomination, that we would not do a confirmation 
in an election year and, in fact, it used to be called the 
Biden rule. They quoted the Biden rule, that has been kind of 
the standard that people accepted.
    Now, because apparently the President must assume he is 
going to lose the election, there is a rush to not live within 
that norm that had been established to try and grab power at 
the expense of the confidence that the country has in the 
court.
    We know from polling that a majority of the American people 
now believe the court is political, and that is both 
Republicans and Democrats believe that the court has become a 
political animal.
    That is very dangerous for our country, and I think it is 
important that we think of ways that we, each of us, can pull 
back from our corners and see how we can take steps to build 
confidence in the institutions of our government, in the 
institutions of our society to preserve this democracy.
    Now, I am going to get to a quick question, if I can. The 
other gentleman from Ohio, Mr. Chabot, talked about the code of 
conduct that was then withdrawn, and I thought it was 
interesting that the Rule didn't say that you couldn't accept 
trips. It just said you couldn't be a member of the 
association.
    I am wondering, Professor Ginsburg, whether you think that 
it undercuts confidence among people to see members of the 
Supreme Court accepting lodging, travel, meals, paid by the 
Federalist Society or others, any ideological group that might 
have an interest in the outcome of decisions, and couldn't the 
Congress set some standards and requirements for the Supreme 
Court to actually disclose information and benefits that they--
    Mr. Ginsburg. I am a big believer in the idea that sunshine 
is the best disinfectant. So, I think disclosure is important 
and I think it can be done and, certainly, the code of ethics 
that has been proposed to be passed by the Judicial Conference 
for the Supreme Court could be adopted by the Supreme Court. 
They could adopt a code tomorrow, and I don't see why they 
don't.
    I think that, really, just making the public more aware of 
this issue would put some pressure on them to do so. It is not 
like I think that they are engaged in nefarious activity. The 
public has a right to know if we have a lot of power at the 
court.
    Ms. Lofgren. I am not saying it is nefarious. The 
perception is important, and what we are talking about now is 
the confidence of the American people in the institutions of 
their government: Legislative, judicial, and executive.
    I see my time has expired, Mr. Chair, and I yield back.
    Mr. Johnson of Georgia. Thank you.
    We will now have five minutes from the gentleman from 
Virginia, Mr. Cline.
    Mr. Cline. I thank the Chair, and I want to thank the 
gentlelady for her remarks. I know she has been an advocate for 
preservations of the rules and the norms of not only this 
Committee but of our system of our republic.
    Working for my predecessor, Congressman Goodlatte, when he 
was alongside the gentlelady from California, I think there was 
a bipartisanship there. Often, they would put aside partisan 
differences to work to preserve those norms.
    The preservation of the democratic republic rests in part 
on the restoration of confidence in this institution. When this 
institution devolves into partisan power plays, I think whether 
it is appointments to the court or impeachments of the 
President, if they are not done for reasons that are legitimate 
then it does reduce the confidence of the people in this 
institution and in their entire system.
    So, to restore that confidence, I agree, we must respect 
the norms of American society and American governance, and 
those include maintaining a nine-person court. Those include 
respecting the Article 3 advise and consent role of the Senate 
decision to appoint and confirm Article 3 judges under Article 
1, and restoration and respect for the filibuster Rule is a 
norm that over time has become part of the system and that has 
been abandoned for partisan political reasons.
    The gentlelady mentions actions in pursuit of power, and I 
would argue that the expansion of the court to name justices of 
one party or another or lean one direction or another would be 
an action in pursuit of power, and if you question that all you 
really have to do is flip it on its head and say if the current 
President sought to do the same thing and sought legislation 
currently to expand by six justices the Supreme Court and name 
six additional justices right now, that would be viewed by my 
colleagues on the other side as action in pursuit of power.
    Therefore, you must view what the minority in the Senate is 
currently proposing as equally based in the pursuit of power.
    So, I long for a return to these norms, a respect for these 
norms. That is the respect that I have for this Committee. It 
is why I got on this Committee, and so I hope to contribute to 
that as a Member of the Committee.
    I will say, the gentlelady also spoke about accountability 
on the court and about transparency on the court. Transparency 
is something I am very interested in when it comes to the 
Federal Government, and I have co-sponsored a bill with the 
gentleman from Rhode Island, Mr. Cicilline, called the Judicial 
Travel Accountability Act that requires a judicial officer to 
annually disclose the source, description, and value of certain 
gifts, a detailed description of meetings and events attended 
including the names of other known attendees and total expenses 
for transportation, lodging, and meals.
    That bill, I believe, is in this Committee. I would love to 
see it moved forward in a bipartisan way, and so to further 
encourage that norm of transparency which has developed over 
time and restore confidence in the institution of government 
and the institution of the courts, and in this institution.
    So, with that, Mr. Chair, I don't have any other questions 
and I will yield back.
    Mr. Johnson of Georgia. The gentleman yields back.
    With that, we will conclude this hearing. I want to thank 
the Witnesses for their testimony. Let us see. You will bear 
with me one second.
    [Pause.]
    Mr. Johnson of Georgia. If there is any need to supplement 
the record in any way, it will remain open. All As will have 
five legislative days to submit additional written questions 
for the Witnesses or additional materials for the record.
    With that, the hearing is adjourned.
    [Whereupon, at 5:29 p.m., the Subcommittee was adjourned.]