[Congressional Record Volume 166, Number 183 (Saturday, October 24, 2020)]
[Senate]
[Pages S6445-S6446]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                 Unanimous Consent Request--S. Res. 758

  Mr. President, I rise today to speak about an effort that, frankly, I 
never envisioned I would have to, something that is so beyond radical, 
and that is packing the U.S. Supreme Court.
  This plan, hatched by a Democratic President in 1937, was so radical 
then that it was soundly defeated here in the U.S. Senate--a Senate, I 
might add, in which 76 of the 96 Members were Democrats.
  This was a plan that was so hostile to institutional principles that 
the Senate Judiciary Committee in 1937 said that it was ``a measure 
which should be so emphatically rejected that its parallel will never 
again be presented to the free representatives of the free people of 
America.''
  In fact, as recently as 2019, the brilliant late Justice Ruth Bader 
Ginsburg stated: ``I think it was a bad idea when President Franklin 
Roosevelt tried to pack the court . . . and if anything would make the 
court look partisan, it would be that.''
  Well, today we find ourselves in the same spot, and the reason why is 
simple: The Democratic Party still does not accept the legitimacy of 
President Trump or his highly qualified judicial nominees.
  Don't forget it was just earlier this year that the Democratic 
leader, Senator Schumer, stood in front of the Supreme Court and openly 
threatened President Trump's two Supreme Court picks if they didn't 
vote the way he wanted by saying, ``I want to tell you, Gorsuch, I want 
to tell you, Kavanaugh: You have released the whirlwind and you will 
pay the price. You won't know what hit you if you go forward with these 
awful decisions.'' That is disturbing--disturbing, indeed.
  Let's be clear. This is nothing more than an attempt at a partisan 
power grab by Democrats. You see, packing the Supreme Court by moving 
from the current 9 Justices to 11 or 13 would essentially eliminate the 
Supreme Court from being a check and a balance on Congress and the 
executive branch, paving the way for a radical, far-left agenda put 
forth by Chuck Schumer and the Democrats if they get the majority.
  Packing the Supreme Court is a direct attack on our Montana way of 
life. Packing the Supreme Court with activist, liberal Justices will 
help the far-left radicals strip away our Second Amendment rights, 
destroy good-paying energy and natural resource jobs, and cripple the 
Montana and American economy by blocking forest management and energy 
projects.
  For us in Montana, we know exactly what it means to have an activist, 
liberal judge on the bench. Look no further than Judge Brian Morris of 
Montana. Judge Morris has done everything in his power to try to kill 
Montana's energy jobs. In fact, he specifically blocked the Keystone XL 
Pipeline. This project would create thousands of jobs and generate tens 
of millions of tax dollars every year for Montana schools and Montana 
communities.
  Packing the Supreme Court will also erode a major principle of our 
Constitution; that is, the separation of powers into three coequal 
branches of government. Packing the Supreme Court would simply make the 
Court an extension of the legislative branch. It is the independence of 
the judiciary that is essential to check and balance both the executive 
and legislative branches. Packing the Court would simply turn the U.S. 
Supreme Court into an extension of whatever political party happens to 
control the White House and the Senate.
  Here is how it would work: Whichever President is in power, if they 
have the same party in power in the Senate, they could keep escalating 
the number of Justices. It would go from 11 to 13 to 15 to 17. It would 
absolutely spin out of control, and our Founding Fathers would be 
rolling over in their graves. The packed Court would simply turn the 
Supreme Court into an extension of whichever political party happens to 
control the White House and the Senate.
  So I am here today to call out the shameful partisan attack on our 
judiciary, and I hope the rest of my colleagues will join me in passing 
this resolution that calls for the Supreme Court to simply remain as it 
has been for 151 years at nine Justices. That is all it says--we are 
going to keep the Supreme Court at nine Justices.
  As if in legislative session, I ask unanimous consent that the Senate 
proceed to consideration of S. Res. 758, submitted earlier today. 
Further, I ask unanimous consent that the resolution be agreed to, the 
preamble be agreed to, and the motions to reconsider be considered made 
and laid upon the table with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. WHITEHOUSE. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator from Rhode Island
  Mr. WHITEHOUSE. Reserving the right to object, I would open with the 
observation that--well, let me start by saying that in one of the great 
plays in our language, the opening began with the observation that 
``something is rotten in the state of Denmark.''
  There is increasing evidence that something is rotten across that 
lawn and across First Street at the U.S. Supreme Court. What is the 
evidence of that? Well, the first thing I would suggest is the amount 
of anonymous dark money influencers swirling around the Court.
  I have spent a good deal of my professional life around appellate 
courts. I have never seen--nor does the history of the Supreme Court 
evidence--anything like what is taking place right now with dark money 
influencers swirling like eels around that Court.
  How do they do it? Well, they are involved in the selection process 
through a group called the Federalist Society, which takes large, 
anonymous, dark-money contributions and controls the selection of 
judges. How do we know it controls the selection of judges? Donald 
Trump has said so.
  The Wall Street Journal has said this was a subcontracting 
operation--a subcontracting operation--and it worked. It is not a good 
thing when the selection of our Supreme Court is subcontracted out to a 
private group that then takes multimillion-dollar anonymous donations. 
It shouldn't be hard for Members to understand that is a dangerous set 
of facts.
  Then you go on to the campaigns for those selected nominees, and you 
see more anonymous donors writing checks for as much as $17 million. I 
can't write a check for $17 million. I don't know anybody here who can. 
The number of donors who can write a check for $17 million is very 
small, and the number who would want to is even smaller. That is 
another avenue of influence.
  Last, you have law groups appearing before the U.S. Supreme Court, 
also anonymously funded. Some have gone out to find a plaintiff of 
convenience to

[[Page S6446]]

bring strategic litigation before the Court. Some appear as what they 
call amici curiae, friends of the Court. Some swap back and forth in 
the same series of cases; they exchange positions as the litigant group 
and a friend of the Court. But what they share is that they are funded 
by the same groups, and they don't disclose that to the Court in their 
filings. So it raises the proposition that this isn't just dark-money 
eels swirling around the Court, but these are, in fact, tentacles of a 
common operation.
  It is particularly surprising that the Senator from Montana would not 
have concern about this because the State of Montana has been so 
strongly concerned about dark-money influence for so long. Indeed, it 
was a State of Montana case that went to the Supreme Court under, I 
guess, Attorney General Bullock at the time, where Senator McCain and I 
wrote a bipartisan brief warning of the dangers of all of this money.
  So that is the first thing--dark-money influencers swirling around 
the Court in a way that is unprecedented, in my view, in judicial 
history.
  The second is a pattern of decisions that has emerged out of that 
Court. Under Chief Justice Roberts, there have been 80 decisions that 
had these characteristics: One, they were decided 5 to 4--a bare 
majority. Courts usually strive to build stronger majorities because 
that strengthens the institution. Eighty cases, bare 5-to-4 
majorities--by the way, bare partisan 5-to-4 majorities--and in every 
case, an identifiable Republican donor interest at stake that won--a 
pattern of 80 to 0.
  Last, you have the behavior taking place politically around these 
nominations and how peculiar that behavior is.
  Here is Senator Daines talking about the effort to appoint Judge 
Garland to the Supreme Court. He said, ``I don't think it's right.'' 
The Senator put it in terms of right and wrong. And he said, ``I don't 
think it's right to bring a nominee forward in an election year.'' He 
said, ``The American people have already begun voting . . . and their 
voice should be reflected in what we do going forward.''
  The very next occasion, the very next election in which the same set 
of circumstances presented itself, he and virtually everyone on the 
Republican side completely reversed their position about what is right 
in this matter. When you see reversals of position like that, that is a 
signal to me that there is something more going on.
  So whether it is all the dark money, whether it is the peculiar 
pattern of decisions, or whether it is the unexplainable behavior of 
Members, it sends a pretty strong signal that something is, in fact, 
rotten in and around that Court.
  I believe that every one of us should agree that we are entitled as 
Americans to a court that is not a pantomime court that goes through 
the routine, the ritual of adjudication, while making sure that a small 
group of special interests actually wins the case at the end of the 
day. Nobody should be interested in a court that operates that way.
  We don't know how bad the situation is because it is dark money, 
because it is still hidden, and until we figure it out, under the rule 
that it is premature to rule out remedies until you have a complete 
diagnosis, I will object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Montana.
  Mr. DAINES. I appreciate the Senator from Rhode Island bringing up 
dark money spent in our elections.
  We all agree that dark-money spending has gotten out of control; 
however, the Senator from Rhode Island gives me an opportunity to point 
out the blatant hypocrisy from those in the Democratic Party on this 
very issue.
  I know I speak for probably every Montanan, if not most, when I say 
that we are tired of being bombarded with never-ending television, 
digital, radio, mail pieces, and most of it is from dark-money 
organizations. And where do you think much of this dark money is coming 
from? It is from groups aligned with the minority leader and the 
Democrats. In fact, according to a September 2020 report by 
OpenSecrets, which tracks political spending, two dark-money groups 
aligned with the Democratic Senate leadership have spent more than $44 
million on political TV ads--more than any other outside group on 
television ads during the 2020 election cycle.
  Let me say that again. These are two dark money groups aligned with 
Democratic Senate leadership that have spent more than any other 
outside group on television ads during the 2020 election cycle. Yet 
neither group has reported any spending to the FEC at all--zero.
  You may ask yourself why the minority leader and his dark money 
allies are dumping so much money into races across our country, 
including Montana. The reason for that is the minority leader wants to 
be the majority leader and take control of the U.S. Senate. He wants to 
change the rules, destroy 151 years of precedent, and pack the Supreme 
Court with activist, liberal judges who will strip away our rights and 
our freedom.
  Packing the Court is a direct attack on our Montana way of life. That 
is why, more than ever, my Court packing resolution is so important. It 
just says: Let's keep it at nine.
  It is not that complicated. We cannot let this Court packing occur.
  So while the Democrats continue to decry dark money--until it 
benefits their campaigns, of course--we must all take a stand in 
ensuring that our Montana way of life is protected.
  For those reasons, I object.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. I just want to make sure that the record of the 
Senate is clear here. Democrats don't just decry dark money spending; 
Democrats have, over and over again, sought to end it. I know this 
because I was the floor leader on the DISCLOSE Act when we brought it 
right here in the Senate, and we came within one vote of getting rid of 
dark money. Every Democrat voted for that measure. Every Democrat voted 
to get rid of this scourge of dark money. Every Republican voted to 
protect it.
  So, yes, do Democrats use dark money? We are playing by your rules. 
We are playing by Republican rules. We could have brought up the 
DISCLOSE Act again because it was the first order of business the House 
passed in H.R. 1, but the Senate majority leader didn't want that bill 
to get a vote.
  So it is a little bit rich to hear a litany of woes about dark money 
from the party that is responsible for dark money happening. We could 
have gotten rid of it if we had passed my DISCLOSE Act. We could have 
gotten rid of it if we had passed H.R. 1. We did none of the above.
  So if I may, I would like to ask that a resolution be passed.