[Congressional Record Volume 170, Number 94 (Monday, June 3, 2024)]
[Senate]
[Pages S3921-S3924]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. WHITEHOUSE. Madam President, as the presiding officer knows, I
have come regularly to the floor to discuss multiple aspects of the
scheme run by a bunch of rightwing billionaires to capture and control
the Supreme Court and how that has come to affect so many Americans'
lives.
Well, in case there were not enough ethics problems already at the
Supreme Court after the billionaire gift program for certain Justices
gave them luxurious, free, undisclosed travel gifts around the world,
paid for homes for parents, education for dependents, and even an
expensive motor coach that appears never to have had the principal
repaid.
Now we know that MAGA battle flags were flown over the Alito
residences. We don't know all the facts of what happened. We do know
that Alito's version of events differs from corroborated statements of
other witnesses to
[[Page S3922]]
those events, and for sure we know that people need to be able to trust
that judges maintain the highest standards of impartiality, which
includes avoiding even the appearance of bias.
And say what you will about the excuses and the reasons for flying
MAGA battle flags over the house of a Supreme Court Justice, you cannot
say that those flags did not appear. You cannot say that they did not
create an appearance that, to a reasonable person, would raise serious
questions about whether that Justice flying MAGA battle flags over his
home had a bias, particularly with respect to cases arising out of the
January 6 MAGA insurrection.
Whatever those fact differences are, they are important to try to get
to the bottom of. And the problem is: It is hard to get those fact
differences resolved because alone in the entire Federal Government--
alone--Supreme Court Justices are subject to no factfinding process. If
the presiding officer or me or the minority leader or the majority
leader were subject to ethics complaints here in the Senate, our Ethics
Committee has the ability to investigate and to do factfinding, and
even to take statements. It is true over in the House as well. Even the
powerful Speaker of the House can be subject to sanction, can be
subject to investigation, and to have to make statements. Heck,
President Biden sat for an official interview about the documents in
his garage. But the Justices--and only the nine Justices--are protected
even from any factfinding, the most rudimentary foundation of legal
process.
And it is ironic because, in theory, the Supreme Court is supposed to
defend the integrity of legal process in this country, and what they do
is they exempt themselves from its most rudimentary pillar.
Obviously, this is all part of a long string of problematic behavior
that has come to the public's attention, none of which has received
adequate factfinding over at the Court.
So, for sure, these far-right Justices have demonstrated they need to
be subject to an enforceable ethics code. You remember the routine they
have been on? First it was: Don't bother us. This is nobody's concern.
And then it was: Oh, all right. We have this ethics statements that
we are going to put out about our ethics.
And that wasn't good enough. So it was then: OK. OK. We will do an
ethics code.
But it is like: We will play by the rules of baseball, except for
that part about umpires. So we will have an ethics code. We will play
by the rules of baseball, but we will get to call our own balls and
strikes, and we will get to call ourselves safe on base every time, and
there will be no dispute because there is no factfinding to be done.
We also know that the Justices won't talk to us about their messes,
about this problem. Justice Roberts just declined a meeting with the
chairs of the Judiciary Committee and the Court's Subcommittee.
Alito sent us a letter expanding on his challenged version of events,
but his correspondence is not subject to the veracity discipline of any
sanction for falsehoods and omissions.
Again, and making matters worse, Alito's story conflicts with the
accounts of other people involved, and the Supreme Court, uniquely in
all of government, has no mechanism for getting to the truth. So if the
Court won't create one, then we need to. And my Supreme Court ethics
bill would do just that.
Every investigator knows that you have to take a proper statement to
get to the truth. The Supreme Court itself took statements from
employees when it was investigating the Alito-Dobbs draft opinion leak.
But no matter what the circumstances, no matter how bad it gets, no
factfinding process applies to the nine Justices--just them. Everybody
else in the government is subject to some factfinding process--not
them. That can be fixed.
Nowhere is the Supreme Court forbidden to have an inbox for ethics
complaints. Nowhere is the Supreme Court forbidden to hire clerical
staff to sort out nutty from legitimate ethics complaints. Nowhere is
the Court forbidden to hire staff attorneys to look into the legitimate
ethics complaints and do a little investigating. Nowhere is the Court
forbidden to allow the staff attorneys to interview Justices to help
determine what the facts are.
``I am sorry, sir. This should take less than an hour, but I need to
go through the events in this complaint and get your statement of what
the facts are here.'' That is not hard.
And nowhere is the Court forbidden from allowing, for instance, a
panel of senior respected Federal chief judges who administer the
ethics code in their own circuits to compare what the Justices did,
what the factfinding investigation revealed, with what those chief
judges would allow in their circuits and then make that comparison
public.
None of that offends the separation of powers. It would be all run
within the judicial branch. And even without any actual disciplinary
punishment, the rebuke of a Supreme Court Justice being told that their
conduct wouldn't fly in other Federal courts would be a powerful
corrective and deterrent.
There is an old saying that the best way to show one stick is crooked
is to lay a straight stick down next to it. A panel of senior and
respected Chief Judges could provide that straight stick. Even on an
advisory basis, the straight stick would be valuable.
And we are going to continue working both on the Judiciary and
Finance Committees to get to the bottom of the mischief at the Court.
252nd Anniversary of the ``Gaspee'' Raid
Madam President, now, if I may, I would like to change the topic to
my favorite annual presentation here in the Senate, and that is to
commemorate the anniversary of the burning of the Gaspee.
The Gaspee was a revenue cutter of the Royal Navy that was operating
in Rhode Island waters, annoying and harassing the shipowners and the
crews who were engaged in maritime trade. And they got so fed up that,
one day, a trading ship called the Hannah was working her way up
Narragansett Bay, and the Gaspee came along and instructed the Hannah
that it should pull up and allow itself to be inspected, boarded, and
potentially seized by Her Majesty's government.
They were doing a lot of that, by the way. It might have come back to
bite them.
There was a ship called the Fortune, which was owned by a Rhode
Islander. It was seized, taken up to Boston, and sold. And, at the
time, one of the owners was not all that involved in the activities
that led to the Revolution, but he got a little bit motivated when his
boat got seized and his cargo seized and all of his goods were taken
and the value shipped back to the King. He was Nathanael Greene. He
ended up becoming Washington's aide-de-camp. He ended up running the
southern campaign for George Washington. And the British general who
was trying to manage the American Revolution wrote back to his wife:
That damn Greene is more dangerous than Washington.
So it can be provoking to have your ship seized.
Anyway, there is the Hannah sailing up the bay. Here comes the Gaspee
in hot pursuit. The Hannah has a wily captain who knows the waters
quite well and sails the Hannah over shallows, where a river comes into
the bay and leaves a sandy trail along the bottom.
And so the Hannah shoots over the shallows, and along comes the
rather bigger, more lumbering Gaspee and grinds into the sandbar. And
it is stuck. And the tide is falling. So it is going to be there for a
while.
So up goes the Hannah to Providence and reports on how they tricked
the Gaspee into grounding itself on the sandbar. And, that night, drums
are beat on the streets of Providence. Refreshments are served. And a
gang of worthy Rhode Islanders decide to go down and fix the Gaspee,
once and for all.
And six or seven longboats rowed down that night, under cover of
darkness, with muffled oars, and they approached the Gaspee. They told
its captain to surrender or they would board it and sack it. Captain
Dudingston said he was not going to do that.
There was an exchange of gunfire, and the captain of the ship, whose
actual rank was lieutenant--Lieutenant Dudingston--was shot in that
exchange. He survived his wounds. He
[[Page S3923]]
was taken ashore by the Rhode Islanders, provided medical care, and
ended up retiring back to his native Scotland, all well.
But that moment was probably the first blood drawn in the conflict
that ultimately became the American Revolution.
So they did, in fact, take over the boat. They swarmed up the sides
of it. They captured the crew. They took them all ashore. And then they
went back out, and they lit the boat on fire.
Here is a rendition of what the Gaspee looked like burning, stuck on
the sandbar. Of course, when the fire got to the powder magazine--boom.
It went off like a bomb. We are still trying to find pieces of the
Gaspee there, but it got blown to such smithereens that nobody has yet
been able to find anything, despite some fairly diligent efforts.
We love the Gaspee in Rhode Island. Here is a new license plate
commemorating ``Gaspee Days,'' showing the Gaspee all on fire, getting
ready to blow up.
And here is what is interesting about it. I did an interview with the
Washington Post.
Madam President, I ask unanimous consent to have printed in the
Record the interview appended at the end of my remarks here.
This is from that article.
Pretty much everybody here--I suspect all of the pages who are here
on the floor--know exactly what the Boston Tea Party is. Massachusetts
has seen to it, over many, many years, that everybody knows what the
Boston Tea Party was.
Well, as the story relates, 18 months before colonists dumped tea in
Boston Harbor, Rhode Islanders attacked and destroyed a British Navy
ship off the coast near Providence, furious with what they saw as the
Crown's overreach--18 months before.
You know, in Rhode Island, we sometimes have a little chip on our
shoulder about being overlooked by our bigger northern neighbor--our
northern suburbs, some might say. But, you know, when you actually blow
up the damn boat and that is lost to history, but then up in
Massachusetts, more than a year later, they push tea bags off the boat
into the harbor and they get the credit for the great revolutionary
activity, I want to come to the floor and do my very best to make that
correction to history.
And one of the things that is nice is that people are starting to
write more and more about this.
I will close by referencing ``The Burning of His Majesty's Schooner
Gaspee,'' a history of the event surrounding that incident, by Steven
Park. And then in Nick Bunker's book, ``An Empire on the Edge,'' he has
an entire chapter inside, ``The dark affair, the Gaspee incident,''
that describes what was done.
And our Secretary of State's office put together this presentation on
the Gaspee affair. It was titled ``Gaspee: The Spark that Ignited the
American Revolution.''
So I am here to commend the Rhode Islanders who struck that spark 18
months before those Massachusetts worthies drank their share of
whatever they needed to do to actually get on a boat and push tea bags
into the harbor--pretty brave. Nothing against them doing that, but--I
mean, seriously--we captured the boat, we shot the captain, and then we
blew the damn boat up. I think that merits mention in American history.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Dec. 14, 2023]
Boston Tea Party? Rhode Island Says Its Rebellion Was First--and Just
as Important
(By Dan Diamond)
You'd be forgiven for thinking you know this story.
American colonists, itching for independence, stormed a
British vessel. A spark in New England helped ignite a
national revolution.
But this was not the Boston Tea Party.
Eighteen months before colonists dumped tea in Boston
Harbor--an event that marks its 250th anniversary this week--
Rhode Islanders attacked and destroyed a British navy ship
off the coast near Providence, furious with what they saw as
the crown's overreach.
The burning of the HMS Gaspee on June 10, 1772, was the
first major armed act of rebellion by the American colonists,
Rhode Island historians and officials maintain. And the
resulting fallout--with King George III demanding that the
perpetrators be held accountable in a showdown between the
colonial legal system and the British courts--helped unify
the colonies for the war to come.
``[T]his is a Matter in which the whole American Continent
is deeply concernd and a Submission of the Colony of Rhode
Island to this enormous Claim of power would be made a
Precedent for all the rest,'' founding father Samuel Adams
wrote to Rhode Island's deputy governor in January 1773.
But the Gaspee affair, which shook the colonies and rattled
the crown, has been largely forgotten outside of Rhode
Island. It's been overlooked in U.S. history classes and
remains little studied by historians of the American
Revolution. The Washington Post reviewed six high school and
college U.S. history textbooks and found no mention of the
burning of the Gaspee, even as multiple pages were devoted to
later--and, in the minds of many Rhode Islanders, lesser--
events such as the Boston Tea Party.
``Nobody knows that well before anybody pushed a tea bag
off a civilian ship in the Boston Harbor, Rhode Islanders
blew up a military vessel,'' Sen. Sheldon Whitehouse (D-R.I.)
said in a recent interview in his office--sitting in front of
a painting that depicts the burning of the Gaspee.
The senator from Rhode Island has repeatedly given speeches
that celebrate the Gaspee raiders, and he's denounced the
attention paid to Massachusetts, saying that leaders of his
neighboring state have spent centuries spinning their own
history.
``They got drunk, painted themselves like Indians and
pushed tea bags into the Boston Harbor, which we in Rhode
Island think is pretty weak tea compared to blowing up the
goddamn boat and shooting its captain,'' Whitehouse told The
Post. ``But you know, all those Massachusetts people went on
to become president and run Harvard . . . so they told their
story, and their story, and their story.''
Rhode Island-based historians agreed that the Gaspee affair
is a case study in how important chapters in history become,
well, history. The state's own firsts--Rhode Island, for
example, was the first colony to declare independence from
Britain on May 4, 1776, two months before the other 12
colonies--tend to get relegated to footnotes in national
stories about the revolution.
``So much focus is put into Massachusetts history, and
Rhode Island gets overlooked,'' said Kathy Abbass, the
principal investigator of the Rhode Island Marine Archaeology
Project, which is working to locate the wreckage of the
Gaspee off the shore of Warwick, R.I. ``Partly that's because
the early histories were written by professors at Harvard and
Yale, which set the tone for all the histories that came
later.''
The attack on the Gaspee
There's little dispute over the events leading up to the
burning of the Gaspee--only how historically significant they
were.
In Rhode Island, as across the colonies, residents were
bristling at the taxes, fees and other burdens imposed by a
British parliament an ocean away. That parliament, meanwhile,
grew frustrated by what leaders saw as Americans' efforts to
evade the responsibilities of being part of the British
Empire.
``The British were trying to raise money by capturing
vessels that were sneaking stuff in and not paying duty,''
Abbass said. ``And yes, of course we were smugglers [in Rhode
Island]--there's no doubt about that.''
Commanded by Lieutenant William Dudingston, a Scottish
naval officer, the Gaspee sailed into Narragansett Bay in
early 1772, seeking to enforce trade laws that the American
colonists were increasingly flouting. The British ship began
to abruptly board colonial vessels off the coast of Rhode
Island and seize their cargo, such as barrels of smuggled
rum. Accusations soon proliferated that the Gaspee's crew was
stealing sheep and hogs from local farmers, and cutting down
their fruit trees for firewood.
Rhode Islanders compared Dudingston to a pirate, sued him
in a local court (which found against him) and even sought
his arrest. But the British warned that anyone who attempted
to interfere in the Gaspee's work would be executed.
``Let them be cautious what they do; for as sure as they
attempt it, and any of them are taken, I will hang them as
pirates,'' British Adm. John Montagu wrote to Rhode Island's
governor in April 1772.
Then came June 9.
A small ship called the Hannah, reportedly owned by Rhode
Island entrepreneur John Brown, was headed toward Providence.
It refused the Gaspee's exhortations to stop--probably
because the Hannah carried illegal cargo--and the British
gave chase. But the Hannah's captain, a local man named
Benjamin Lindsey, knew the area better than Dudingston, and
he led the Gaspee into waters that had receded because of the
daily tides. The British ship ended up stuck on a sandbar,
waiting for the tides to change again hours later.
The Hannah successfully slipped away to Providence, where
Lindsey quickly recounted his tale to Brown, one of the
city's leading merchants, who was a member of the loose
resistance movement known as the Sons of Liberty and part of
the family that helped found Brown University, the Ivy League
university that would later bear its name.
[[Page S3924]]
Brown was also a smuggler--one of Rhode Island's most
notorious, Abbass said--and had been nursing a grudge against
Dudingston and his ship.
Learning that the Gaspee was temporarily marooned, ``Mr.
Brown immediately resolved on her destruction,'' Ephraim
Bowen, a local man who was among the several dozen men who
joined Brown, would recount decades later.
As many as 60 men gathered in the Providence harbor that
evening, launching boats and muffling their oars to quietly
row out to the Gaspee under cover of darkness. As they
approached the ship, a confrontation began--with one of the
Gaspee raiders asserting that Dudingston was a criminal who
had evaded the local law, Bowen recounted--that led to
Dudingston being shot in the groin and arm and all of the
ship's crew being taken from the vessel.
The Rhode Islanders burned the Gaspee to the water line
early on the morning of June 10. Then the gunpowder on board
exploded, sending pieces of the ship flying.
As news of the attack made its way to London, British
leaders seethed. In a royal proclamation, King George III
offered a reward of up to 1,000 pounds sterling--more than
$150,000 in today's currency--to anyone who could help
identify and convict the ``outrageous and heinous Offenders''
behind the ship's burning. He also established a commission
to conduct a formal inquiry, and the British vowed to
transport any colonists indicted in the attack to England for
trial and, almost certainly, execution.
But no arrests were ever made. Rhode Islanders refused to
volunteer information about the Gaspee raiders, and local
officials found ways to slow or stymie the British
investigation. Colonial leaders further argued that anyone
involved in the Gaspee's burning should face a jury of their
peers in America. A Rhode Island sheriff even arrested
Dudingston as he recovered from his wounds, charging him for
the Gaspee's previous seizures of cargo.
Meanwhile, the nation's founding fathers exchanged fervent
messages about the Gaspee's burning and the British response,
setting up the committees of correspondence that helped them
coordinate strategies in the years to come.
Adams, particularly, warned that Britain's determination to
pursue the Gaspee affair, and the discussion of the
deployment of troops, could lead to a cascade of events that
might spark ``a most violent political Earthquake through the
whole British Empire if not its total Destruction,'' he wrote
in January 1773 to Rhode Island's deputy governor, Darius
Sessions.
``I have long feard that this unhappy Contest between
Britain & America will end in Rivers of Blood,'' Adams wrote.
An `uncelebrated burning' is forgotten
Most of the Rhode Islanders involved in the burning of the
Gaspee successfully concealed their identities from the
British and even other colonials, helping confound the
crown's probe. In some ways, their effort to hide was too
successful: Even today, about half the men who burned the
Gaspee are unknown.
But as the American Revolution began to slip out of living
memory, Rhode Islanders tried to lay a claim to the first
shot fired.
``The first blood that was shed in the revolutionary
contest, by that very act begun, stained her deck, and it was
drawn by a Rhode Island hand,'' William Hunter, a former U.S
senator from Rhode Island, said in an address on July 4,
1826--50 years after the signing of the Declaration of
Independence. ``Yes, the blood of Lieutenant Duddington was
the first blood drawn in the American cause.''
Those efforts to highlight the Gaspee affair had limited
success. In the fight over the American legacy, Rhode Island
would end up largely nudged to the side--a casualty of a
battle between larger states, chiefly Massachusetts and
Virginia, that were disproportionately home to some of the
era's most influential figures.
``There was a very busy group of Boston-based intellectuals
who were eager to frame Boston as the driver of the
revolution and Bostonians as the inheritors of the legacy of
the revolution,'' said Nat Sheidley, a historian who runs
Revolutionary Spaces, a Boston-based organization that runs
public programs about colonial America--including this week's
anniversary of the tea party. He added that America's elite
leaders initially downplayed a number of revolutionary
events, such as the destruction of tea in Boston's harbor,
fearing that it would undermine the sense of order in the
young nation.
``But by the 1830s, it felt a little bit safer to go
there,'' Sheidley said. ``And so that's the moment where . .
. the name `Tea Party' is invented, and it becomes
popularized as a story of what led us to the revolution.''
A century later, a 1922 New York Times article detailed
``the uncelebrated burning'' of the Gaspee and asked why the
Boston Tea Party had developed a ``much stronger hold'' upon
Americans.
``[A]s an exhibition of daring the tea party was literally
a tea party and nothing more compared with the Gaspee
incident,'' Jonathan A. Rawson Jr. wrote in the Times.
The Gaspee affair's place in history
Even today, some historians are largely unfamiliar with the
Gaspee or suggest that its burning was a regional matter, The
Post found. But in Rhode Island, lore about the Gaspee is
thriving. For 57 years, local volunteers have held an annual
celebration--known as Gaspee Days--featuring a parade to
celebrate the burning of the ship, which is increasingly
joined by government officials, reenactors and thousands of
residents.
``Declare your independence from bank fees!'' reads one ad
from a local credit union in last year's 250th anniversary
booklet.
Other efforts abound. Rhode Island's secretary of state
offers free Gaspee posters on demand A Brown University
instructor created a virtual reality app that allows users to
be immersed in a reenactment of the story. A license plate
depicting the burning of the Gaspee became available to state
drivers this fall--and it looks ``wicked cool,'' said John
Concannon, a retired pediatrician who is Gaspee Days'
historian.
It's all part of a larger state goal: to ensure that the
burning of the Gaspee is never forgotten again. Historians
who have studied the event said that it merits more mention,
particularly in textbooks.
``The thing about the Gaspee that is important was that the
king took notice,'' said Abbass, who has written about other
colonial attacks on British vessels that preceded the burning
of the Gaspee but provoked negligible reaction from the
crown.
The king's intervention also led to a British attempt to
circumvent the colonial courts, causing alarm and ultimately
backfiring on the crown, Concannon said. He argued that
several articles in the Declaration of Independence,
including the right to a jury of one's peers, stem from the
Gaspee affair--a more significant contribution to that
document than made by the Boston Tea Party, he said.
That's one reason this weekend's latest celebration of the
events in Massachusetts continues to vex Rhode Islanders.
When it comes to the founding of America, Concannon said, the
burning of the Gaspee is ``just as important.''
Philip Bump, Azi Paybarah and Dan Lamothe contributed to
this report.
CORRECTION
Because of a transcription error, an earlier version of
this story initially misquoted Sen. Sheldon Whitehouse (D-
R.I.) as saying the Boston Tea Party participants ``painted
themselves like idiots.'' In fact, he said they ``painted
themselves like Indians.'' This version has been corrected.
Mr. WHITEHOUSE. And with that, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Butler). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CASSIDY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.