[Congressional Record Volume 168, Number 46 (Tuesday, March 15, 2022)]
[Senate]
[Pages S1182-S1183]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           U.S. SUPREME COURT

  Mr. WHITEHOUSE. Mr. President, I rise again to discuss the scheme 
that has captured and now controls America's Supreme Court.
  If you have been following this series of speeches, you know that we 
have gone over the Powell memo and the plan it laid out for the 
corporate rightwing. We have gone over the technique of Agency capture, 
regulatory capture, that has been applied to the Supreme Court. We have 
gone over the turnstile, that big anonymous rightwing donor setup 
within the Federalist Society to approve Republican nominees and the 
dark money front groups that sped those nominees through Senate 
confirmation. And we have discussed how the big rightwing donor 
interests influence Justices while they are on the Bench, through fast 
lanes for dark money litigation and flotillas--flotillas--of dark money 
amici curiae, front group amici.
  Well, if you set up a machine like that, you will pretty soon see 
Justices auditioning for the role. To understand the origins of this 
auditioning, you need to start with a little bit of history.
  It is 1990, and President George H. W. Bush needs to fill a vacancy 
left by the legendary Justice William Brennan. President Bush appoints 
a recent First Circuit nominee named David Souter, who had spent most 
of his career in New Hampshire State government.
  At the time, Republicans thought Souter's short time on the Federal 
bench was an asset. Without a long paper trail, there was less chance 
that Souter's nomination would go down in flames, like Robert Bork's 
had.
  But Souter wasn't the conservative the rightwing hoped for. Indeed, 
he could be down-right moderate. In their disappointment, they adopted 
a new mantra: ``No More Souters.''
  When rumors got around that George W. Bush might nominate his White 
House Counsel, Alberto Gonzales, to the Court, he was not seen as 
rightwing enough, and the scheme panicked and the mantra became ``Al 
Gonzales is Spanish for `David Souter.' ''
  John Paul Stevens was another rightwing disappointment. So ``No More 
Souters'' as a mantra was joined by ``No More Stevenses.''
  With these disappointments, the rightwing donors and their Federalist 
Society accolades vowed to better groom and vet future candidates, 
scouring Republican nominees' records for maximum adherence to scheme 
orthodoxy.
  Well, once that process was up and operating, the response was 
predictable. Ambitious rightwing lawyers aspiring to the Federal Bench 
aren't dumb. They will follow the path that guides them to their goal. 
So the maximum adherence auditioning began. I have described the 
circuit court judge who observed his colleagues taking cases and 
issuing rulings that seemed to have the clear intent of sending a 
signal. They strained to write decisions that were dressed to impress. 
They were, in his word, ``auditioning''--auditioning for the Federalist 
Society gatekeepers.
  So how exactly does this auditioning work? There is a recipe:
  One, you have got to understand what matters to the big donors: guns, 
unbridled campaign spending, corporate political power, shrinking the 
so-called administrative state, and rightwing social issues.
  Two, fly solo. It can actually help if you go it alone. Write 
opinions so extreme that they stand out and donors take notice.
  And, three, of course, where you can, deliver the goods. If a case 
allows you to score a win for a big donor interest, take it.
  Three Justices who knew this recipe well were the trio nominated by 
Donald Trump.
  As a circuit court judge, Neil Gorsuch became a darling of the 
rightwing donor elites for his commitment

[[Page S1183]]

to dismantling this so-called administrative state. To do that, he 
deployed radical legal theories cooked up and propagated in the 
scheme's legal theory hothouse, where they developed schemes, kind of 
reverse-engineering them to give victories in cases.
  In one instance, Gorsuch even wrote two opinions for the same case: 
one, the majority opinion that his colleagues joined; and the other, an 
out-there solo opinion displaying his scheme bona fides.
  Gorsuch also displayed his fervor for what he called religious 
freedom, which usually translates to dismantling the separation between 
church and State, which is another scheme favorite.
  Justice Amy Coney Barrett knew how to audition too. In one case, 
Barrett's Seventh Circuit Court of Appeals declined to hear a challenge 
to an Indiana law on women's right to choose. Barrett bucked the 
majority to stakeout an eyebrow-raising position on the right, joining 
a dissent aimed directly at Supreme Court abortion precedent.
  On guns, Judge Barrett authored an opinion in a Second Amendment case 
called Kanter v. Barr that would have given a felon back his gun 
because his felony wasn't violent. Constitutional scholars' jaws hit 
the floor at that one.
  Adam Winkler, a Second Amendment expert at UCLA Law School, told the 
New Yorker that the opinion was ``Amy Coney Barrett's audition tape for 
the Supreme Court.'' And it was her audition tape because her ``view of 
the Second Amendment [was] outside of the mainstream'' and ``would 
appeal . . . to the Federalist Society.''
  Of course, the biggest auditioner of all was Brett Kavanaugh. On the 
DC Circuit, Kavanaugh did so much auditioning it is hard to know where 
to begin. He issued opinions on abortion, on guns, on the 
administrative state, on campaign finance, and more. He was not 
concerned with building consensus. He wanted to make a point.
  Here is Washington Post editor Ruth Marcus in her book on Kavanaugh:

       His more liberal appeals court colleagues found him affable 
     but unyielding. He would engage but rarely, if ever, change 
     his mind, [and he] displayed a propensity for filing separate 
     concurrences and dissents, actions that some colleagues took 
     as judicial grandstanding and, more to the point, an effort 
     to position himself for a Supreme Court seat.

  Auditioning--in fact, Kavanaugh dissented more each year on the bench 
than any of his DC Circuit colleagues, whether Republican or Democratic 
appointees.
  Kavanaugh made clear that he would be on the team if on the Court. 
Kavanaugh pumped up the ``major questions'' doctrine--one of the 
hothouse legal theories pushed by the far right. It says that courts 
should ignore an Agency's authority to solve a problem if the court 
thinks the problem is too big. Big regulated companies love having 
regulatory Agencies hobbled. So this was catnip for scheme donors.
  The majority in that case panned Kavanaugh's ``major questions'' 
idea, which hadn't even been raised by the parties, but Kavanaugh 
wasn't out to win votes from his colleagues, and he wasn't out to do 
justice in that case. He was firing an auditioning flare for scheme 
operatives and donors to see from miles around.
  Like Barrett, Kavanaugh did his own publicity. He spoke at 52--count 
them, 52--Federalist Society events over his career. You almost 
couldn't keep him out. And he wasn't the only one seeking an audience 
with the Federalist Society donor elite. After Trump's election, 9 of 
the 21 people on Trump's short list spoke at a 3-day Federalist Society 
panel dedicated to remembering Justice Scalia, and almost all the 
others were hanging out, mingling in the crowd. It was a judicial 
beauty pageant, with some real beauties.
  Kavanaugh had a little problem. He wasn't on Trump's first list of 
potential Supreme Court picks, and he wasn't on the second list either. 
But all that eager auditioning got him onto the third list, and the 
rest is history.
  I am not alone in noting all this auditioning. Here is how one writer 
for Slate paraphrased former U.S. District Judge Nancy Gertner about 
scheme auditioning:
  [C]onservative judges auditioning for SCOTUS--
  Supreme Court of the United States--

       go all out proving their Federalist Society bona fides: 
     Gorsuch used his judicial opinions on the appeals court to 
     advertise himself as an enemy of the administrative state and 
     a diehard proponent of religious freedom; Kavanaugh flaunted 
     his support of the unitary executive and hostility to 
     reproductive rights to earn a spot on President Donald 
     Trump's short list; Amy Coney Barrett brandished her Second 
     Amendment maximalism.

  As the Slate writers note:

       The conservative legal movement rewards this kind of 
     flagrantly ideological auditioning. Republicans demand 
     evidence that their justices will aggressively overturn 
     precedent and laws that conflict with their political goals.

  As I said earlier, ``no more Souters,'' ``no more Stevenses.''
  That is the auditioning by these sitting Justices.
  I will close my remarks with an example of what happens when you 
haven't auditioned for the scheme.
  When Justice Sandra Day O'Connor announced her retirement, George W. 
Bush wanted to replace her with his friend and loyal White House 
Counsel, Harriet Miers. Miers was a dyed-in-the-wool conservative. She 
had served Bush and his inner circle faithfully. But she wasn't a 
Federalist Society insider. She didn't have a record of auditioning for 
the big donors behind the Federalist Society's turnstile. She couldn't 
soothe those rightwing donors that she was ``no Souter,'' ``no 
Stevens.'' Her sin wasn't anything in particular; she just wasn't part 
of the club.
  As Supreme Court scholar Amanda Hollis-Brusky put it:

       The message Leonard [Leo] and others had sent was: If you 
     want to rise through the ranks, we need to know you. And 
     that's what they were all saying about Miers--``We don't know 
     her. She is not one of us.''

  Leonard Leo, by the way, is sort of the spider at the center of the 
web of donor interests that drive the turnstile at the Federalist 
Society during Republican Presidencies.
  We are now embarking on the confirmation process of someone who has 
not auditioned to donor elites for a seat on the U.S. Supreme Court. No 
dark money machine guided her selection. That is refreshing.
  Still, the auditioning continues on the right for the next time a 
Republican President holds office. Scheme donors expect standout 
candidates who wear their commitment to their donor welfare on their 
sleeves. Watch closely for more. To be continued.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.

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