[Congressional Record Volume 168, Number 78 (Tuesday, May 10, 2022)]
[Senate]
[Pages S2412-S2413]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           U.S. SUPREME COURT

  Mr. WHITEHOUSE. Madam President, I am here for the 14th time to keep 
unmasking the scheme to control our Supreme Court--a scheme that is now 
poised to destroy a woman's right to make her own reproductive health 
choices and to smash foundational Supreme Court precedent to get there.
  Last week, Politico confirmed a fear that many of us have had for 
years. We now see that the Supreme Court has at least five votes to 
eradicate Roe v. Wade, one of the most important decisions in the 
Court's history. For nearly half a century, women in this country have 
relied on Roe's recognition that our constitutional right to privacy 
includes the right to decide when to have a child. This is one of the 
most profoundly personal and life-changing decisions anyone can make. 
Now, the draft opinion from Justice Alito shows in black and white how 
the Court plans to steamroll over that right--and afterward probably 
many others that are anchored in that same American right to privacy.
  If Justice Alito's draft opinion becomes law, women in this country 
will have a well-established constitutional right stripped away. That 
has not happened before.
  Already 13 States have trigger bans that will snap into place the 
moment Roe is overturned, and 13 more are expected to ban or severely 
restrict abortions in the future. And it won't stop there. For example, 
Louisiana's Republican lawmakers just advanced a bill that would 
criminalize abortion as homicide and allow prosecutors to charge women 
seeking abortions as criminals.
  In the week since the news broke, a lot of Americans have expressed 
just how strongly they disagree with the path this Court is headed 
down. They are disappointed, stunned, outraged, and they are right. 
When you take a second to remember what these same Justices told us in 
the past about Roe, you can be doubly outraged. I know Democrats on the 
Senate Judiciary Committee are. We saw the last three Republican 
Justices come through that committee and look us in the eye as we asked 
what they thought about Roe. Let's be clear: Each of these Republican 
Justices came before the committee; each was specifically asked about 
Roe v. Wade.
  Here is what they told us:
  Neil Gorsuch:

       Roe v. Wade, decided in 1973, is a precedent of the United 
     States Supreme Court. It has been reaffirmed.

  Brett Kavanaugh:

       It is settled as a precedent of the Supreme Court, entitled 
     to respect under principles of stare decisis.

  Amy Coney Barrett:

       Roe is not a super-precedent because calls for its 
     overruling have never ceased. But that doesn't mean that Roe 
     should be overruled. It just means that it doesn't fall 
     within a small handful of cases like Marbury v. Madison and 
     Brown v. Board that no one questions anymore.

  Add in Alito himself:

       Roe v. Wade is an important precedent of the Supreme Court.

  Yet here is what Alito's draft opinion says:

       Roe was egregiously wrong from the start. Its reasoning was 
     exceptionally weak, and the decision has had damaging 
     consequences.

  Well, there was no mention of ``egregiously'' at the confirmation 
hearings. There was no mention of ``wrong from the start'' when we 
asked about Roe. Does anyone seriously think that this was a sudden, 
new epiphany that came over the Federalist Society Justices in the last 
few weeks? None--none--managed to mention their belief that Roe v. Wade 
was ``egregiously wrong from the start.'' Whether that was outright 
lying or confirmation hearing hide-the-ball tricks, it is dishonorable, 
and it was dishonest.
  If that is what you believe as a judge, own it. Don't keep your views 
secret until you have the votes to make your move. That may be clever 
politics, but it is politics, not judging. It is a big tell about this 
captured Court.
  Since the news broke, Republicans have tried desperately to change 
the subject. The minority leader says:

       The real outrage is not the obliteration of women's rights 
     but that we found out about it a month early.

  He says:

       This lawless action should be investigated and punished as 
     quickly as possible.

  Other Republicans called for the FBI to prosecute the leaker 
criminally or civilly. Some even purport to identify the leaker.
  Chief Justice Roberts called the leak ``a singular and egregious 
breach of . . . trust'' and an ``affront to the community of public 
servants who work here.''
  Look, as to the leak, Mr. Chief Justice, go for it. Investigate away. 
Send the Marshals. But to my Republican colleagues, sharpening their 
pitchforks and calling for criminal prosecution: Spare me the high 
dudgeon. Spare me the faux outrage. As former White House Ethics 
Counsel Walter Shaub explains, ``[T]he Supreme Court has no code of 
ethics--which is the place you would normally put a ban on misusing 
nonpublic information. [So] what crime would [the] FBI . . . 
investigate?''
  As for the ``affront'' to the institution, I suggest everyone 
consider the real rot at the core of the Supreme Court.
  If you care about the independence and integrity of the Court, it is 
not this leak you should be outraged about; it is that for the first 
time in the history of the U.S. Supreme Court, the selection of Supreme 
Court Justices was farmed out, handed off to a private organization, 
and Justices were selected in some backroom with zero transparency into 
how the selections were made, how the lists were assembled, and zero 
transparency into the dark money that flowed into that private 
organization while the selections were being made. Who paid what to 
have a seat at the Federalist Society's judicial selection turnstile?
  We know from new reporting that it was the Federalist Society's 
Leonard Leo who ``laid out [the] road map for Trump on the Federal 
court system'' with the goal of ``transforming the foundational 
understanding of rights in America.''
  So much for balls and strikes, huh?
  Leo came up with the list of ``judges that would please the 
Republican base'' from among what he called the ``decades of 
conservative lawyers in the pipeline.'' He became a ``team'' with Don 
McGahn, Trump's White House Counsel, and Mitch McConnell to ``keep the 
judicial nominations effort moving.'' It was Leo who took to the White 
House where he had ``extensive access,'' to the revised nominees list 
that included Kavanaugh and Barrett. The picks were made by advisers, 
said Senator McConnell, with Trump's role

[[Page S2413]]

merely ``signing off on them,'' and he ``never veered from the lists of 
candidates suggested by Leo and others.''
  Again, this was not about calling ``balls and strikes.''
  If you want ``to have the longest possible impact on the kind of 
America you want,'' said Leader McConnell, ``you look at the courts.'' 
That is their goal, to change the kind of America we have--more 
accurately, the kind of America the far-right megadonors want, I would 
say.

  Trump noticed. ``Mitch McConnell. Judges. Judges. Judges. The only 
thing he wants is judges,'' said Trump.
  We know this happened because the Trump White House, right up to 
Trump himself, said so. Trump's own White House Counsel joked that he 
``in-sourced'' the Federalist Society into the selection process. As 
one prominent conservative explained, this was an ``enterprise''--an 
``enterprise of building a Supreme Court that will overturn Roe v. 
Wade.''
  Once the anonymous donors behind the Federalist Society Justice-
picking operation got the nominees they wanted, then came the dark 
money front groups rolling out ad campaigns to help ram those Justices 
through the Senate. Anonymous donations of $15 million, $17 million, 
$19 million went to phony front groups like the so-called ``Judicial 
Crisis Network'' to promote those backroom-chosen Federalist Society 
nominees.
  Then, once the Federalist Society Justices were stacked onto the 
Court, flotillas of dark money front groups appeared before them, both 
as litigants and as amici curiae, orchestrated by the dozens in little 
groups to signal the Republican Justices how to rule. And it is pretty 
likely that the same donor network was behind the nomination turnstile, 
the propaganda machine, and the flotillas. And by the way, they are 
winning--winning--with these handpicked Justices at an astonishing 
rate--80 to 0 by one count.
  We see the results of the scheme in this very case. The sponsors of 
the Mississippi abortion law admitted that they passed the law because 
they thought the new Supreme Court Justices would uphold it, just like 
a new legislative body had come in. After Amy Coney Barrett's 
nomination was rushed through the Senate, the State of Mississippi even 
changed its position to ask the Supreme Court to overrule Roe in its 
entirety. It all smells of ``fixery.'' No wonder Justice Sotomayor 
asked during oral argument whether the Court will ``survive the stench 
that this creates in the public perception that the Constitution and 
its reading are just political acts?''
  So, if colleagues want to talk about demolition of the integrity and 
independence of the Court, then they better have something to say about 
turning the Supreme Court over to dark money special interests, about 
special interests capturing the Court to serve their rightwing 
``enterprise.'' A captured Court, that is delivering for the special 
interests that stacked it and helping to keep their secrets has had its 
integrity and independence pretty well demolished already.
  The last gasp of the scoundrels is to pretend that it is Democrats 
calling out this dark money mess who are the ones undermining the 
integrity of the Court. They even point to a brief of mine where 
several colleagues and I quoted to the Court a poll showing that a 
majority of Americans feel the Court is ``mainly motivated by 
politics'' and that it ought to be ``restructured in order to reduce 
the influence of politics.''
  That is a poll, not a threat.
  And the Court better start paying attention to why the American 
people feel that way, rather than quarreling that anyone that is 
``threatening'' or ``bullying'' the Court by pointing that out.
  By the way, if threatening is what you want to fuss about, have the 
decency to be consistent. Here is a quote from FOX News' host Laura 
Ingraham discussing this actual abortion case after the oral arguments 
were done.
  Forgive my bad language to the pages who are here. I am actually 
quoting her verbatim.

       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. If this Court with six Justices cannot do the right 
     thing here, the constitutional thing, 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.

  Far from pushing back on that threat to ``blow it up'' and ``change 
things finally,'' the Senate colleague she was talking to said:

       . . . in a heartbeat.

  When you are treating an accurate quotation of a poll as a threat and 
ignoring a public threat to blow up the Court and change things 
finally--after all the ``fat cat'' money spent on the Federalist 
Society, no less--forgive me for doubting your sincerity.
  As Senator Padilla said in the Judiciary Committee last week, have 
the decency to be consistent at least.
  Justice Alito spent over 98 pages trying and failing to justify 
overturning the decision protecting these rights--overturning a 
decision he told the U.S. Senate was an ``important precedent of the 
Supreme Court.''
  His opinion isn't persuasive to me at all as it reads as snide and 
cruel, but that is not going to stop these Justices from trying to 
throw us back into an age where women aren't free to make their own 
choices about their own bodies and their own futures. It looks like the 
fix went in on that a while ago, and we just weren't told about it in 
the hearings.
  So, tomorrow, the majority leader will bring before this Chamber 
legislation to protect those rights nationwide, to protect that freedom 
across this country, and I am eager to vote for it. We have got to 
stand against this assault on women's constitutional rights, and I hope 
some Republican colleagues will join us.
  Particularly, I hope, in the weeks and months ahead, that we can find 
ways to unravel the dark money scheme that has brought this Court and 
our country closer to the brink because the Court that dark money 
built--it is not done. It is not done trying to reshape America against 
our will to suit the extreme ideology of the rightwing billionaires 
behind the scheme.
  There is one good thing in all this darkness, and that is that the 
American people see this nonsense and have had enough.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.

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