[Congressional Record Volume 163, Number 91 (Thursday, May 25, 2017)]
[Senate]
[Pages S3161-S3162]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to resume consideration of the 
Thapar nomination, which the clerk will report.
  The assistant bill clerk read the nomination of Amul R. Thapar, of 
Kentucky, to be United States Circuit Judge for the Sixth Circuit.
  The ACTING PRESIDENT pro tempore. The Democratic whip.
  Mr. DURBIN. Mr. President, I rise in opposition to the nomination of 
Judge Amul Thapar to serve on the Sixth Circuit Court of Appeals.
  Judge Thapar is President Trump's first nominee to serve on a Federal 
appeals court. Last week, the Senate Judiciary Committee considered 
this nomination and no Democrat voted for it.
  Judge Thapar is on the list of 21 candidates that the Federalist 
Society and Heritage Foundation have selected for President Donald 
Trump to choose from when filling Supreme Court vacancies.
  Judge Thapar is well known to the Federalist Society. He was a member 
of that organization prior to becoming a district court judge, and 
since he became a judge he has spoken at Federalist Society events 17 
times.
  Some of my colleagues on the Republican side are like Captain Renault 
in Casablanca, who claimed he was ``shocked, shocked'' to find out 
there was gambling going on in Rick's Cafe.
  They are shocked that anyone could be concerned about the Federalist 
Society, which they claim is just a simple debate club. Far from it--
consider the following background.
  The organization was founded in 1982 by students at two law schools, 
Yale and the University of Chicago, under the faculty supervision of 
Robert Bork and Antonin Scalia, who just happen to be the two most 
prominent conservative legal scholars of their generation.
  According to a recent article about the Federalist Society by Jeffrey 
Toobin: ``within just a few years, the group was embraced and funded by 
a number of powerful, wealthy conservative organizations, which 
eventually included foundations associated with John Olin, Lynde and 
Harry Bradley, Richard Scaife, and the Koch Brothers.''
  The Federalist Society's website includes the group's purpose 
statement. It claims that the legal profession is: ``currently strongly 
dominated by a form of orthodox liberal ideology which advocates a 
centralized and uniform society.''
  The statement describes the Federalist Society as a group of 
conservatives and libertarians calling for: ``reordering priorities 
within the legal system,'' to fit their principles. Does that sound 
like the mission statement of a nonpartisan debate society?
  How has the Federalist Society gone about this reordering? It's been 
largely the work of Mr. Leonard Leo, the longtime executive vice 
president of the Federalist Society who is currently serving as an 
advisor to the Trump White House.
  Mr. Leo has been credited with being a driving force behind the 
Supreme Court nominations of Justice Neil Gorsuch, Chief Justice John 
Roberts and Justice Samuel Alito. That is one-third of the current 
Supreme Court that he has helped put in place.
  Mr. Leo recently gave a speech where he said: ``I've seen that 
comment about the third of the Supreme Court. I prefer controlling 
interests. But we haven't quite been able to launch a hostile takeover 
yet.''
  Mr. Leo went on to advocate for radical change, saying: ``I would 
love to see the courts unrecognizable.'' He has said of the judicial 
confirmation process: ``it's like war.''
  In an unprecedented move, President Trump outsourced the selection of 
Supreme Court candidates to Mr. Leo, the Federalist Society, and the 
right-wing Heritage Foundation. He publicly thanked these special 
interest groups for putting together his list of 21 Supreme Court 
candidates, and Mr. Leo was the first person to call Neil Gorsuch about 
his nomination.
  As Jeffrey Toobin wrote, Leonard Leo: ``knew how to play the game--
how to find a nominee who met Trump's ideological requirements as well 
as his own, while observing the proprieties expected for judicial 
nominees.''
  Mr. Leo told Mr. Toobin that it was: ``easy'' to find these nominees 
because: ``when you've been working in this vineyard for twenty-five 
years you know everybody.''
  That brings us back to Judge Thapar.
  Leonard Leo, and the big money right-wing interests that fund the 
Federalist Society, feel that they know Judge Thapar well enough to 
include him on the list of 21.
  They have had plenty of opportunity to get a sense of his views, as 
Judge Thapar had been a member of the Federalist Society and has 
frequently spoken at their events.
  At his hearing and in my questions to him, I sought reassurance from 
Judge Thapar that he would be independent from this right-wing group 
and President Trump.
  His answers did not provide that reassurance.
  For example, I asked Judge Thapar whether he agreed or disagreed with 
the Federalist Society's purpose statement. He ducked the question, 
saying he didn't know what the Federalist Society meant by the 
statement.
  I asked him if he thought it was appropriate for the President to 
delegate his Supreme Court selection process to the Federalist Society 
and Heritage Foundation, since this creates incentive for judges not to 
contravene the views of those organizations and their big-money donors. 
He ducked again, saying he would not opine on this because he claimed 
it was a ``political question.''
  In the aftermath of Citizens United, special interest groups pour 
dark money into campaigns in support of Republican judicial nominees 
like Judge Thapar. I asked Judge Thapar if he would discourage secret 
donations in support of his nomination.
  After all, if we don't know who is secretly donating in support of 
his nomination, how will we know when Judge Thapar needs to recuse 
himself because one of those donors has an interest in a case he is 
considering?
  He dodged that question too, saying he wasn't aware of any donations 
about his nomination. Of course, he wouldn't be aware of secret 
donations--that's the problem.
  I also asked him about the original understanding of the 
Constitution's Emoluments Clause. He said he could not discuss it 
because there is pending litigation on the matter.
  That is curious, because I thought the Federalist Society's view was 
that the original meaning of constitutional provisions was immutable 
and unchanging. If the meaning of the Constitution doesn't change, why 
do Federalist Society nominees decline to tell us this meaning when 
there is litigation underway affecting President Trump?
  I asked Judge Thapar about his decision in Winter v. Wolnitzek. This 
was a major campaign finance decision in which he applied strict 
scrutiny to invalidate a ban on judges making political contributions. 
A unanimous Sixth Circuit panel reversed his ruling.

[[Page S3162]]

  A group of 24 campaign finance reform organizations sent a letter 
saying: ``Judge Thapar embraced the troubling `money is speech' 
paradigm in a radical way that goes beyond Supreme Court doctrine.'' 
These groups oppose his confirmation, and I ask unanimous consent to 
have their letter printed in the Record at the conclusion of my 
remarks.
  Given Judge Thapar's evasiveness on questions about his views, I am 
left to judge him on his record, such as his troubling decision in the 
Winter case, and the fact that the Federalist Society and Heritage 
Foundation handpicked him for their judicial wish list.
  I need more reassurance than that to support a nominee for a lifetime 
appointment on the Federal court of appeals. I will oppose his 
nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                     May 17, 2017.
     Senate Judiciary Committee,
     Washington, DC.
       Dear Senators: We the undersigned organizations write to 
     oppose the confirmation of Judge Amul Thapar to the United 
     States Court of Appeals for the Sixth Circuit due to his 
     troubling record on the issue of money in politics.
       We are deeply concerned with the power of wealthy campaign 
     donors in American politics, and specifically with the 
     aggressive role the U.S. courts have played in undermining 
     our democracy by elevating the voices of a wealthy few over 
     the views of everyday Americans.
       Much of the problem can be attributed to four decades of 
     flawed Supreme Court rulings. These decisions have twisted 
     the meaning of the First Amendment and prevented our elected 
     representatives and the people from enacting reasonable 
     protections against big money. In fact, nearly half of the 
     money in the 2016 federal elections--more than $3 billion--
     can be directly tied to a few of the Court's most damaging 
     rulings.
       What concerns us about Judge Thapar's record is that he has 
     gone beyond the Supreme Court's directives in his antagonism 
     towards basic rules designed to ensure we have a government 
     that is of, by and for the people.
       In Winter v. Wolnitzek, 186 F.3d 673 (E.D. Ky. 2016), Judge 
     Thapar struck down a prohibition on judges making political 
     contributions by applying strict scrutiny to this 
     contribution ban, in spite of the fact that the Supreme Court 
     has been clear that contribution limits and bans are to be 
     reviewed under a lower form of scrutiny. The Sixth Circuit 
     overturned Judge Thapar's ruling on this point and reinstated 
     the contribution ban.
       Further, Judge Thapar embraced the troubling ``money is 
     speech'' paradigm in a radical way that goes beyond Supreme 
     Court doctrine, writing ``there is simply no difference 
     between `saying' that one supports an organization by using 
     words and `saying' that one supports an organization by 
     donating money.''
       Sen. Whitehouse pointed out in Judge Thapar's Senate 
     Judiciary Committee hearing that ``those of us who are in 
     politics know that that is a false statement, that it is 
     indeed a preposterous statement factually because money has a 
     completely different effect than speech once it enters the 
     political arena.''
       The Supreme Court itself does not treat financial 
     contributions as being equal to actual speech. Rather, the 
     Court considers contributing to a campaign a form of 
     association or attenuated speech since the contributor does 
     not control the content of the communication resulting from 
     the contribution.
       If Judge Thapar had his way, wealthy donors and special 
     interests could be able to give unlimited sums of money 
     directly to candidates for office. Thapar would make it even 
     harder than it is now for everyday people to be heard and 
     affect who runs for office, who wins elections, and what 
     issues get attention; and easier for powerful politicians to 
     make secret wink and nod deals with their richest 
     contributors.
       Judge Thapar's responses to questioning on the subject 
     during his hearing and in subsequent ``questions for the 
     record'' did nothing to allay our concerns. In response to 
     Sen. Klobuchar's questions about why he applied strict 
     scrutiny to the contribution ban, for example, Judge Thapar 
     struggled to explain why he assumed (without analysis) that 
     the same standard should apply to contributions as to 
     solicitations.
       The role of big money in politics became a central issue in 
     the debate over Justice Neil Gorsuch's confirmation to the 
     U.S. Supreme Court because the public cares deeply about this 
     issue. To ensure that all voices are heard, not just those of 
     powerful corporations and wealthy donors, it is essential 
     that we confirm judges and justices who understand that the 
     Constitution gives we the people the power to protect our 
     democracy from big money.
       Unfortunately, Judge Amul Thapar does not appear to see our 
     pro-democracy Constitution as the vast majority of Americans 
     do--and for this reason we urge you to oppose his 
     confirmation to the U.S. Court of Appeals for the Sixth 
     Circuit.
           Sincerely,
       American Federation of Teachers, Americans for Democratic 
     Action, Center for American Progress, Center for Emergent 
     Diplomacy, Class Action, Communications Workers of America, 
     CODEPINK, Democracy Spring, Demos, End Citizens United, Every 
     Voice, Free Speech for People, Friends of the Earth, Just 
     Foreign Policy, Maplight, MAYDAY, National Association of 
     Social Workers, Participatory Politics Foundation, People for 
     the American Way, PeopleNow.org, Reverb Press, Small Planet 
     Institute, United for Democracy, Voices for Progress.