[Congressional Record Volume 168, Number 7 (Tuesday, January 11, 2022)]
[Senate]
[Pages S142-S143]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. WHITEHOUSE. Mr. President, with my distinguished colleague from
Utah here, I would just--before I get to my remarks--suggest that there
may be an exception to his rule that when a piece of legislation is
only sponsored by Members of one party it can't be serious legislation;
and, in my view, that would include climate legislation, where it has
been extremely hard to get Republicans to cosponsor any serious climate
bill. And I think that has nothing to do with the seriousness of the
legislation and everything to do with the influence of the fossil fuel
industry.
But that said, Mr. President, I am here to speak for the 11th time in
my series discussing the scheme through which a bunch of big, anonymous
donors captured our Supreme Court.
Today, I am going to talk about the Biden Supreme Court commission,
which could have done a useful, even authoritative investigation of the
scheme and all its terrible effects at the Court but which,
regrettably, ended up as an exercise in ineffectual time-killing.
I have laid out the scheme in detail in earlier speeches in this
series. In a nutshell, there is a very well-studied phenomenon of
regulatory capture, sometimes called agency capture, through which big
industries try to capture and control the regulatory agencies that are
supposed to be policing them.
Well, in the same way, big, rightwing donor interests set out to
capture the Supreme Court. And they did it. It worked. Now, the Court's
6-to-3, big-donor-chosen supermajority is delivering massive wins for
those donor interests, and the American people can smell what Justice
Sotomayor aptly characterized as the ``stench'' of a captured Court.
The problems of the Court are real, and they demand action. Enter the
Court commission. Charged with thinking through solutions to the
Court's many problems, the commission was perfectly positioned to
report on the scheme and offer a blueprint for restoring the Court. But
its final findings, released last month, offered instead what I have
called faculty-lounge pabulum.
Sure, yes, they gestured toward the need for a code of ethics for the
Justices, which makes sense because Supreme Court Justices have the
lowest ethics standard of any top Federal official. But pointing that
out is a little bit like pointing out a flat tire on a totaled car.
Consider the facts the commission ignored: A private, partisan,
anonymously funded organization--the Federalist Society--handpicked the
last three Supreme Court Justices. President Trump and his White House
counsel admitted they had ``in-sourced''--their word--the Federalist
Society to the White House to choose their nominees.
Senator Hatch, our former colleague, former chairman of the
Judiciary, was asked if this role was outsourced to the Federalist
Society, and he said, ``Damn right.''
No other democracy in the world has had such a ridiculous system for
selecting Judges. That is bad. It gets worse. Anonymous donations
helped rightwing front groups mount a $400 million push to capture and
control the Court with zero transparency into who gave the money or--
more importantly--what matters they had before the Court whose Justices
they were installing. That is disgraceful. And trust me, nobody spends
$400 million without a motive.
There is more. Orchestrated flotillas of amici curiae, so-called
friends of the court, funded by dark money, instruct the Court which
way to rule, and they score virtually perfect success with the
Republican appointees whom dark money ushered onto the Court.
The Court has even allowed peculiar fast lanes for dark money groups
to speed cases to the Court for Justices to decide favored, politically
helpful cases. In some cases, the Justices even invited the case to be
rushed to the Court.
And this mess culminates in a notable, troubling statistical record.
The Roberts Court delivered more than 80--80--partisan 5-to-4 decisions
benefiting big Republican donor interests. The record in that category
of decisions was 80 to 0, and that is before the Court's new 6-3,
donor-chosen supermajority.
That is a lot for the Commission to leave out. The Commissioners
can't claim they did not have fair notice.
[[Page S143]]
Several of us wrote to the Commission to point out the scheme's
telltale footprints. The Commission even received testimony about
another pernicious issue: the Court's reliance on fake facts supplied
by dark money amici curiae, especially in politically important cases
for the rightwing donors like Shelby County and Citizens United.
Somehow, none of this made it into the Commission's discussion.
Ducking all these facts was no small feat. As the Presiding Officer
knows, one of the first exercises that law professors give their first-
year law students is called issue spotting. You get a case, and you are
asked to go through it and list all the potential issues it raises,
spot the issues. Well, these issues all sat in plain view before the
Commission. Yet the Commission flunked the rudimentary law school test
of issue spotting.
Now, part of the problem was conflict of interest. Many members of
this Commission argue before the Court and need its good will for their
bread and butter. Others are law professors eager to plant their
students in prestigious Supreme Court clerkships. For many members,
rocking the boat could have unhappy consequences.
Clearly, though, some Commission members tried and failed to get
these issues considered. Two members--retired Federal Judge Nancy
Gertner from the Presiding Officer's home State and Harvard Law
School's Laurence Tribe--had an op-ed ready for print the day the
report was released. They called for a serious overhaul of the Court
due to what they called ``the dubious legitimacy of the way some
Justices were appointed,'' due to that stench of bipartisanship Justice
Sotomayor has observed, and due to what they called the ``anti-
egalitarian direction'' of the Court's political decisions on voting
rights and dark money.''
Judge Gertner and Professor Tribe wrote:
Though fellow commissioners and others have voiced concern
about the impact that a report implicitly criticizing the
Supreme Court might have on judicial independence and thus
judicial legitimacy, we do not share that concern. Far worse
are the dangers that flow from ignoring the court's real
problems--of pretending conditions have not changed; of
insisting improper efforts to manipulate the court's
membership have not taken place; of looking the other way
when the court seeks to undo decades of precedent relied on
by half the population to shape their lives just because,
given the new majority, it has the votes.
Judge Gertner and Professor Tribe rightly warned that we can't afford
more decisions like Shelby County and Citizens United, which would put
the Court on what they called a ``one-way trip from a defective but
still hopeful democracy toward a system in which the few corruptly
govern the many, something between autocracy and oligarchy.''
Think about that. People distinguished enough to be appointed to this
Commission by the President feel that this Court is on a one-way trip
from America being a defective but still hopeful democracy toward a
system in which the few corruptly govern the many.
They concluded by saying this:
Instead of serving as a guardrail against going over that
cliff, our Supreme Court has become an all-too-willing
accomplice--
Accomplice--
in that disaster.
All of that was kept out of the report.
The fact is evident that dark money political forces had a
controlling and anonymous role in the makeup of the present Court. You
can't dispute that. It is not surprising that the donor interests who
accomplished that should want their due. As I said, you don't spend
$400 million on this scheme for nothing.
Just a few days before the Commission unveiled the final draft of its
report and right after oral arguments in the big abortion cases that
are pending before the Court, there was a telling incident. FOX News
host Laura Ingraham lost her cool, and she said on plain television the
quiet part out loud. Here is what she said:
We have six Republican appointees on this court, after all
the money that has been raised, the Federalist Society, all
these big fat cat dinners--I'm sorry, I'm pissed about this--
Excuse me for that language, but it is a direct quote--
if this court with six justices cannot do the right thing
here . . . then I think it's time to do what Robert Bork said
we should do, which is to circumscribe the jurisdiction of
this court and if they want to blow it up, then that's the
way to change things finally.
Let's deconstruct that little outburst for a second.
First, it basically admits to the scheme: ``all the money that has
been raised''--that is the $400 million I talked about; ``the
Federalist Society''--that is the big donor-controlled turnstile for
rightwing advancement to the Supreme Court; and ``all these big fat cat
dinners''--wow. I would love to know more about that. We do know that
Justices have taken undisclosed vacations in the company of people with
interests before the Court, so what is a little ``big fat cat dinner''
among friends, huh?
Second, that little outburst is a flat-out threat to the Court:
Decide the big abortion cases the way we want, the six of you, or we
``circumscribe the jurisdiction of this court''; ``blow it up'';
``change things finally.''
There is a particularly thin-skinned Federalist Society Justice who
has been giving speeches condemning an imaginary threat I supposedly
made to ``bully'' the Court in a brief maybe read by a couple of
hundred people. It didn't actually happen that way, but never mind.
Like I said, he is particularly thin-skinned.
But now here comes this plain threat: ``circumscribe the jurisdiction
of this court''; ``blow it up''; ``change things finally'' if we don't
get the outcome we deserve after all of our money spent through the
Federalist Society.
So I am waiting to see what reaction from this Justice there is when
this real threat comes, but from the rightwing FOX News channel. The
FOX News outburst was particularly rash and indiscreet, but the
Republican Justices get marching orders like this all the time at the
fat-cat dinners, on junkets with the rightwing donor class, and from
the orchestrated flotillas of dark money amici curiae that encircle the
Court for big cases launched by the big donors.
The Justices are constantly reminded of who propelled them to the
Court and what they are supposed to deliver. And the truth is, the
record reveals, the statistics make plain the Republican Justices do
deliver over and over and over again--more than 80 partisan wins for
scheme donors in those 5-to-4--and now we can expect 6-to-3--partisan
decisions.
So the Biden Court Commission missed its moment. It ducked all of
this. So on we must go through the stench of partisan capture of the
Court, and on I will go exposing the scheme that did it.
To be continued.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Peters). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.