[Congressional Record Volume 169, Number 119 (Wednesday, July 12, 2023)]
[Senate]
[Pages S2352-S2354]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. WHITEHOUSE. Mr. President, I rise this evening, now for the 22nd
time, to keep unmasking the far-right scheme to capture and control our
Supreme Court. This scheme is funded by creepy rightwing billionaires
who stay out of the limelight and let others--namely, Leonard Leo and
his crew--operate their scheme.
How are they benefiting from the scheme? It is hard to track which
rightwing billionaires are involved--and that is by design--but thanks
to intrepid reporting from ProPublica and others, we are learning more
all the time. And every day it becomes harder for the billionaire-
friendly Justices and their political allies to pretend, with a
straight face, that all is kosher at the Court.
I have previously described the noxious cocktail of this court
capture scheme: creepy rightwing billionaires, phony front groups,
amenable Justices, large sums of money, and secrecy. I don't know
whether they take that shaken or stirred, but those seem to be the
common ingredients.
To chill that Court-capture cocktail, we can add one more ingredient:
Alaskan glacier ice. But I will get back to that later.
First, let's review the origin story of Justice Samuel Alito. It
begins with the bipartisan Senate rejection of Judge Robert Bork, which
infuriated Bork's far-right backers. On the Court were Justices Souter
and Stevens--both Republican appointees--but they wouldn't help the
billionaires, so the angry chant went out from the far right: No more
Souters. No more Stevenses.
Then President George W. Bush got an appointment and nominated his
[[Page S2353]]
friend and trusted White House counsel, Harriet Miers. A Republican
President nominates a personal friend and rock-ribbed conservative
Republican--a woman to replace Sandra Day O'Connor. And the attack on
her comes from the right. The far-right billionaires won't have it. And
their operative--the aforementioned Leonard Leo--oversaw the project of
taking her down. And in her place came the ever-so-reliably
billionaire-friendly Sam Alito.
This switch--Miers for Alito--gave Leo immense cred with the
billionaires, who have since made him a very rich man and helped him
launch his armada of front groups, of which this array is just a
selection. These three groups are the groups from which he takes
revenue for himself and through which he manages these two groups, a
coordinated 501(c)(3) and 501(c)(4). That is sort of the latest and
greatest technique in dark money political manipulation, a conjoined
501(c)(3) and 501(c)(4)--usually, common offices, common staff, common
funders, common mail drop, all of that.
Around this common core are what are called fictitious names. That is
the name for it under Virginia law. So 85 Fund is also the Judicial
Education Project under a fictitious name. It is also the Honest
Elections Project under a fictitious name. It is also the Free to Learn
under a fictitious name. Concord Fund is also Judicial Crisis Network
under a fictitious name, Honest Elections Project Action under a
fictitious name, and Free to Learn Action under a fictitious name. That
is quite a lot of confusion, and it is designed to be confusing.
Scroll on to 2021. By that time, I had been calling out obvious
issues at the Supreme Court: published articles, delivered speeches,
wrote law reviews, even wrote a book. Alito, speaking at the University
of Notre Dame, bemoaned what he said were ``unprecedented efforts to
intimidate the Court.'' He went on to say that the media was suggesting
that ``a dangerous cabal is deciding important issues in a novel,
secretive, improper way in the middle of the night, hidden from public
view.'' That, of course, referred to the sudden surge under Trump in
the Court's use of its ``shadow docket'' to quickly change the law
without hearing full public arguments. Alito's speech then was
considered a pretty extraordinary airing of grievance by a Supreme
Court Justice.
In response, I wrote an op-ed explaining that Justice Alito had
participated in a pattern of decisions, among them the shadow docket
ruling leaving in place--pre-Dobbs--Texas's ``bounty-hunter'' anti-
abortion law--a pattern of big wins for big rightwing donors with
little regard for fact or precedent.
I argued that Americans' perception that the Court lacks independence
and the resulting drop in approval isn't some leftwing figment. The
evidence showed a clear pattern: When big rightwing donor interests
came before the Court, the Federalist Society Justices on the Court
would regularly trample precedent and contort the facts and the law to
deliver the donors' political victories--not a figment, a pattern.
Then, of course, came the Dobbs case, which actually took away a
constitutional right from women. For five decades, women had the right
to choose when to have children. That constitutional right appeared
safely protected in Supreme Court precedent.
Then, from a list mysteriously prepared by Leonard Leo and the
Federalist Society, President Trump appointed three Justices to the
Court. Now, I say ``mysteriously'' because the Federalist Society,
evidently, never had any formal proceedings to develop any list, but it
offered no correction when Trump kept calling it his Federalist Society
list.
Well, the next thing you know, that constitutional right was taken
away by Justices who, in their confirmation hearings, had told the
American public and the Senate Judiciary Committee that Roe was settled
law--settled, that is, until they had the votes to unsettle it and make
up their own.
As Justice Elena Kagan observed: If there is a new member of a court
and all of a sudden everything is up for grabs, all of a sudden very
fundamental principles of law are being overthrown, are being replaced,
then people have a right to say: What's going on there? That doesn't
seem very lawlike. And she was right.
Years after he had assured us Roe was settled law, it was Justice
Alito who wrote the decision in Dobbs. Alito's draft opinion infamously
leaked well ahead of the decision, causing rampant speculation about
who leaked the opinion and why.
Chief Justice Roberts directed the Marshal to investigate,
interviewing clerks and Court staff and even searching employees'
personal phone records. But with the Justices, the Marshal undertook
some other, also mysterious, iterative process, and the investigation
proved inconclusive.
Curiously, days before the opinion leaked, the Wall Street Journal
editorial page had predicted the Dobbs decision, raising the suggestion
that someone had a source in the Court. The editorial correctly
predicted what Alito knew: that Alito would write the decision for the
majority so long as Chief Justice Roberts couldn't pull another Justice
to join a more moderate, middle-ground decision.
Then, this past April, Justice Alito was featured in a highly
sympathetic interview on the Wall Street Journal editorial page. Alito
spoke about his opinion's leak and said:
I personally have a pretty good idea who is responsible,
but that's different from the level of proof that is needed
to name somebody.
Any major newspaper would have put an exclusive interview with a
Supreme Court Justice on the front page, but it would then have been
subject to fact-checking. This opinion piece looked like an article,
but it appeared in the Journal's notoriously fast-and-loose-with-the-
facts opinion section under a double byline. One was a Wall Street
Journal editorial staffer, and the other was David Rivkin, a rightwing
lawyer who represented the States challenging the EPA's Clean Power
Plan before the Supreme Court.
A quick detour about the Wall Street Journal editorial page's ties to
the rightwing ecosystem: Rightwing bizarro-land likes to ape the
legitimate world. In the legitimate world, there is a Pulitzer Prize,
so rightwing bizarro-land has its own Bradley Prize, which--guess
what--has provided hefty prize money to several Wall Street Journal
editorial page writers, a million dollars cash in all.
This editorial piece quotes Alito saying:
We are being hammered daily, and I think quite unfairly in
a lot of instances. And nobody, practically nobody, is
defending us.
In the piece, Justice Alito declined to talk about the Clarence
Thomas ethics problems reported by ProPublica: extravagant vacations
worth as much as $500,000, paid for by rightwing billionaire megadonor
Harlan Crow and not disclosed.
That report was later followed by an additional ProPublica story
detailing the billionaire's purchase of properties from Justice Thomas
and his family members, also not properly disclosed, and payments for
years of tuition for the Justice's grandnephew whom the Thomases were
raising, also not disclosed.
Justice Alito's silence on the Thomas bombshell became all the more
notable when, 2 months later, ProPublica published another bombshell--
this one about Justice Alito--same cocktail ingredients. In this case,
a rightwing billionaire, an amenable Justice, undisclosed private jet
travel, an exotic vacation--all very expensive, all secret. Justice
Alito's private jet travel to this all-expenses-paid Alaskan fishing
vacation was paid for by a hedge fund billionaire, Paul Singer, who
contributed over $80 million to Republican political organizations and
whose Elliott Management group is one of the largest donors to the
National Republican Senatorial Committee. This is a politically
involved rightwing billionaire.
Later, the billionaire's firm had business before the Court and, in
that case, won billions of dollars--no disclosure by Alito, no recusal.
Charles Geyh, an Indiana University law professor and leading expert on
recusals, had this to say:
If you were good friends, what were you doing ruling on his
case? And if you weren't good friends, what were you doing
accepting this?
But wait. There is more. The tab for Alito's stay at the salmon lodge
in Alaska was covered by a different billionaire. If you are keeping
score, we are now up to three billionaires. This one is named Robert
Arkley, and he
[[Page S2354]]
funded the launch of Leonard Leo's advocacy group the Judicial Crisis
Network, also heavily engaged in rightwing political influence focused
on the Court.
Leo, the operative behind the current rightwing Supreme Court
supermajority, not only organized Alito's trip, he gallivanted off to
Alaska with the Justice and the billionaires.
By my count, after yet another story about Justice Thomas, we are now
up to six rightwing billionaires attending to the care and feeding of
two Justices: Thomas and Alito. And there are all sorts of links among
them and with the ubiquitous Leonard Leo. So many Justices, so many
billionaires, so many gifts.
But there is even more. Alito was not the first Justice to stay at
this particular lodge. Justice Scalia also took a private jet to the
lodge, courtesy of billionaire Arkley, and also did not disclose the
gift. In one memorable bit of color from that ProPublica story, Scalia
was described as mixing martinis made with ice chipped off of a
glacier.
There. You thought I had forgotten that, but I didn't.
The evening before the Alito billionaire travel story ran, the Wall
Street Journal comes back into the picture again. Alito tried to
preempt ProPublica's reporting by taking to the Wall Street Journal
editorial page. In the op-ed, Alito argued that he didn't need to
disclose the private jet travel under Federal law because the private
jet should be considered a ``facility'' and that his seat on the
private jet would have otherwise been empty so it was free and there
was no gift.
I won't go into how laughable these arguments are. That is a separate
case. What is important is that these arguments were printed on the
Wall Street Journal editorial page without investigation or comment by
the page, taken at face value.
Oh, and, by the way, the cost of that charter--the private jet travel
would have cost over $100,000 each way.
In that Wall Street Journal editorial page piece from the spring,
Alito had said about the Court's collapsing approval:
Well, yeah, what do you expect when you're--day in and day
out--``They're illegitimate. They're engaging in all sorts of
unethical conduct. They're doing this, they're doing that''?
Justice Alito's complaining has it completely backward. The problem
is not that Americans are pointing out the ethical lapses at the
Supreme Court. The problem is the ethical lapses at the Supreme Court.
The Roberts Court Justices' behavior is crashing public trust in the
institution--and justifiably--first, with preposterous judicial
behavior that no other judge would indulge; second, with outrageous
violations of quite clear rules and procedures judges are supposed to
follow about reporting those gifts; third, with preposterous excuses
for the bad behavior and the reporting violations; and fourth, with no
process to ever even try to get to the truth to establish the facts.
It is a mess.
Ideally, the Justices would start fixing that mess on their own. The
Court and the Judicial Conference, which Roberts chairs, have the
ability to fix this, but so far, they won't. I suspect there is a lot
more to be found out about this mess, and they don't want those further
disclosures so they would just as soon pull a rug over the whole thing,
but that won't work.
Congress also has the ability to write ethics rules for the Justices.
Remember, Congress created the judges' financial disclosure
requirements in the Ethics in Government Act. And Congress created the
judicial recusal law, which the Justices are also required to follow.
And Congress created the Judicial Conference, which administers
financial disclosure and code of conduct matters. Clearly, the article
I legislative branch can legislate in this area. Clearly, we can
oversee Agencies that we have created and laws that we have passed, and
indeed we have for decades.
In the coming days, the Senate Judiciary Committee will mark up my
Supreme Court Ethics, Recusal, and Transparency Act. This is a very
important step forward in this process, and I thank Chairman Durbin for
his leadership. This bill would put basic ethics guardrails and
transparency measures in place to help ensure the American people that
they can get a fair shot at the Supreme Court, even if they don't have
a private jet.
Today, in the Court that dark money built, the honor system has
flagrantly failed. We need to legislate; we need to investigate; and we
need to fix this mess for the American people.
To be continued, Mr. President.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, and now for the wrapup.
____________________