[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.