Transcript: Sheldon Whitehouse at Senate nomination hearing for Amy Coney Barrett for Supreme Court - 13 October '20
Judge Barrett, you can take a bit of a breather on your return to the committee, because what I want to do
... is go through with the people who are watching this now, the conversation that you and I had when we spoke on the telephone. You were kind enough to hear out a presentation that I made and I intend to ask some questions in that area. But it doesn't make sense to ask questions if I haven't laid the predicate particularly for viewers who are watching this.
So I guess the reason that I want to do this is because people who are watching this need to understand that this small hearing room and the little TV box that you're looking at, the little screen that you're looking at, are a little bit like the frame of a puppet theater and if you only look at what's going on in the puppet theater, you're not going to understand the whole story. You're not going to understand the real dynamic of what is going on here.
And you're certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.
So first let me say why do I think outside forces are here pulling strings.
Well, part of it is behavior. We have colleagues here who supported you, this nominee, before there was a nominee. That's a little unusual.
We have the political ram job that we have already complained of driving this process through at breakneck speed in the middle of a pandemic while the Senate is closed for safety reasons and while we're doing nothing about the COVID epidemic around us.
We have some very awkward 180s from colleagues. Mr Chairman, you figure in this. Our leader said back when it was Garland versus Gorsuch that "of course, of course the American people should have a say in the court's direction, of course, of course", said Mitch McConnell.
That's long gone.
Senator Grassley said, "the American people shouldn't be denied a voice."
That's long gone.
Senator Cruz said, "You don't do this in an election year."
That's long gone.
And our chairman made his famous hold the tape promise "If an opening comes in the last year of President Trump's term we'll wait till the next election."
That's gone too.
So there is a lot of hard to explain hypocrisy and rush taking place right now and my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows.
Now, people may say, what does all this matter, this is a political parlor game, it's no big deal. Well, there's some pretty high stakes here that we've been talking about here on our side and I'll tell you three of them right here: Roe versus Wade, Obergefell and the Obamacare cases.
Here's the GOP platform
, the Republican platform, the platform of my colleagues on the other side of this aisle says that "... a Republican President will appoint judges who ... will reverse
... Roe, Obergefell and the Obamacare cases."
So if you have a family member with an interest in some autonomy over their body under Roe versus Wade, the ability to have a marriage, have friends marry, have a niece or a daughter or a son marry someone of their same sex they have, you've got a stake.
And if you're one of the millions and millions of Americans who depend on the Affordable Care Act, you've got a stake.
It's not just the platform. Over and over again, let's start by talking about the Affordable Care Act. Here's the President talking about this litigation that we're gearing up this nominee for, for November 10th. In this litigation he said, "We want to terminate health care under Obamacare." That is the President's statement.
So, when we react to that, don't act as if we're making this stuff up. This is what President Trump said. This is what your party platform says - reverse the Obamacare cases.
Senator after senator, including many in this committee, filed briefs saying that the Affordable Care Act should be thrown out by courts.
Why is it surprising for us to be concerned that you want this nominee to do what you want nominees to do.
One quick stop on NFIB v. Sebelius because a lot of this has to do with money. This is an interesting comparison. National Federation of Independent Businesses, until it filed the NFIB v. Sebelius case, had its biggest donation ever of twenty one thousand dollars. In the year that it went to work on the Affordable Care Act, 10 wealthy donors gave 10 million dollars. Somebody deserves a thank you.
So, let's go on to Roe v Wade. Same thing. Same thing.
The President has said that reversing Roe v Wade will happen automatically because he's putting pro-life justices on the court. Why would we not take him at his word?
The Republican party platform says it will reverse Roe. Why would we not comment on that and take you at your word?
Senators here, including Senator
Hawley, have said, "I will vote only for nominees who acknowledge that Roe v. Wade is wrongly decided".
And their pledge to vote for this nominee. Do the math. That's a really simple equation to run.
The Republican brief in June Medical said Roe should be overruled. So, don't act surprised when we ask questions about whether that's what you're up to here.
And finally, out in the ad world that you have spared yourself, wisely, Judge Barrett, the Susan B Anthony Foundation
is running advertisements right now saying that you are set, you are set to give our pro-life country the court that it deserves there is the ad with the voice over, "she's set, she's set".
And then, Roe, Obamacare cases and Obergefell - gay marriage. National Organization for Marriage, the big group that opposes same-sex marriage says in this proceeding, "all our issues are at stake". Republican platform says it wants to reverse Obergefell and the Republican brief filed in the case said same-sex relationships don't fall within any constitutional provision
. So when we say the stakes are high on this, it's because you've said the stakes are high on this. You have said that's what you want to do.
So how are people going about doing it? What is the scheme here? Let me start with this one.
In all cases there's big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. It's managed by a guy, was managed by a guy named Leonard Leo and it's taken over the selection of judicial nominees.
How do we know that to be the case? Because Trump has said so. Over and over again his White House counsel said so. So we have an anonymously-funded group controlling judicial selection run by this guy Leonard Leo.
Then in another lane we have again anonymous funders running through something called the Judicial Crisis Network which is run by Carrie Severino and it's doing PR and campaign ads for Republican judicial nominees. It got 17 million, single 17 million dollar donation in the Garland/Gorsuch contest. It got another single 17 million dollar donation to support Kavanaugh. Somebody - perhaps the same person - spent 35 million dollars to influence the makeup of the United States Supreme Court.
Tell me that's good.
And then over here you have a whole array of legal groups also funded by dark money which have a different role. They bring cases to the court. They don't wind their way to the court, your honor, they get shoved to the court by these legal groups, many of which ask to lose below so they can get quickly to the court to get their business done there.
And then they turn up in a chorus, an orchestrated chorus of any key. Now, I've had a chance to have a look at this and I was in a case actually as an amicus myself. The Consumer Financial Protection Board
case. And in that case there were one, two, three, four, five, six, seven, eight, nine, ten, eleven amicus briefs filed and every single one of them was a group funded by something called Donors Trust.
Donors Trust is a gigantic identity scrubbing device for the right wing so that it says Donors Trust is the donor without whoever the real donor is. It doesn't have a business, it doesn't have a business plan, it doesn't do anything, it's just an identity scrubber.
And this group here the Bradley Foundation funded eight out of the 11 briefs. That seems weird to me when you have amicus briefs coming in little flotillas that are funded by the same groups but nominally separate in the court. So actually attach this to my brief as an appendix.
Center for Media and Democracy
saw it and they did better work. They went on to say which foundations funded the brief writers in that CFPB case.
Here's the Bradley Foundation, for $5.6 million to those groups. Here's Donors Trust, 23 $million to those brief writing groups. The grand total across all the donor groups was 68 million dollars to the groups that were filing amicus briefs pretending that they were different groups.
And it's not just in the Consumer Financial Protection Board case. You might say, well, that was just the one-off. Here's Janus, the anti-labor case that had a long trail through the court.
through Friedrichs and through Knox and through other decisions. And Source Watch and Propublica did some work about this.
Here's Donors Trust and Donors Capital Fund and here's the Bradley Foundation and they totaled giving 45 million dollars to the one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen groups that filed amicus briefs pretending to be different groups. And both of the lawyer groups in the case. Funded by Donors Trust, funded by Bradley Foundation in Janus. This is happening over and over and over again.
And it goes beyond just the briefs, it goes beyond just the amicus presentations. The Federalist Society, remember this group that is acting as the conduit and that Donald Trump has said is doing his judicial selection. They're getting money from the same foundations; from Donors Trust 16.7 million dollars, from the Bradley Foundation 1.37 million dollars. From the same group of foundations, total 33 million dollars.
So you can start to look at these and you can start to tie them together. The legal groups, all the same funders over and over again, bringing the cases and providing this orchestrated chorus of amici. Then the same group also funds the Federalist Society over here.
The Washington Post wrote a big expose about this and that made Leonard Leo a little hot a little bit like a burned agent so he had to jump out and he went off to go and do anonymously funded voter suppression work. Guess who jumped in to take over the selection process in this case, for Judge Barrett? Carrie Severino made the hop. So once again ties right in together.
So Center For Media And Democracy done a little bit more research. Here's a Bradley Foundation memo that they've published. The Bradley Foundation is reviewing a grant application asking for money for this orchestrated amicus process and what do they say in the staff recommendation it is important to orchestrate - their word, not mine - important to orchestrate high caliber amicus efforts before the court.
They also note that Bradley has done previous philanthropic investments in the actual underlying legal actions so Bradley is funding, what do they call it - philanthropically investing in - the underlying legal action and then giving money to groups to show up in the orchestrated chorus of amici. That can't be good.
And it goes on, because they also found this email. This email comes from an individual at the Bradley Foundation and it asks our friend Leonard Leo, who used to run the selection process, is there a 501(c)(3) non-profit to which Bradley could direct any support of the two Supreme Court amicus projects other than Donors Trust I don't know why they wanted to avoid the reliable identity scrubber Donors Trust but for some reason they did. So Leonard Leo writes back on Federalist Society address, so don't tell me that isn't Federal Society business, on Federalist Society on his address he writes back, "Yes, send it to the Judicial Education Project which could take and allocate the money. And guess who works for the Judicial Education Project? Carrie Severino who also helped select this nominee running the Trump / Federalist Society selection process.
So the connections abound. In the Washington Post article they point out that the Judicial Crisis Network's office is on the same hallway in the same building as the Federalist Society and when they sent their reporter to talk to somebody at the Judicial Crisis Network, somebody from the Federalist Society came down to let them up. This more and more looks like it's not three schemes but it's one scheme with the same funders selecting judges, funding campaigns for the judges, and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do.
On the Judicial Crisis Network you've got the Leonard Leo connection obviously. She hopped in to take over for him with the Federalist Society. You've got the campaigns that I've talked about where they take 17 million dollar contributions - that's a big check to write, 17 million dollars - to campaign for supreme court nominees. No idea who that is or what they got for it. You've got briefs that she wrote. The Republican senators filed briefs in that NFIB case signed by Ms. Severino. The woman who helped choose this nominee has written briefs for Republican senators attacking the ACA. Don't say the ACA's not an issue here.
And by the way, the Judicial Crisis Network funds the Republican attorneys general. It funds RAGA the Republican Attorneys General Association and it funds individual Republican attorneys general and guess who the plaintiffs are in the Affordable Care Act case? Republican attorneys general. Trump joined them because he didn't want to defend. So he's in with the Republican attorneys general.
But here's the Judicial Crisis Network campaigning for Supreme Court nominees, writing briefs for senators against the Affordable Care Act, supporting the Republicans who are bringing this case and leading this election process for this nominee.
Here's the page off the brief. Here's where they are.
Mitch McConnell and on through the list. Senator Collins, Senator Cornyn, Senator Hoeven, Senator
Marco Rubio it's a huge assortment of Republican senators who Carrie Severino wrote a brief for against, against, against the Affordable Care Act.
So this is a, to me, pretty big deal. I've never seen this around any court that I've ever been involved with where there's this much dark money and this much influence being used. Here's how the Washington Post summed it up. This is a conservative activist behind the scenes campaign to remake the nation's courts and it's a 250 million dollar dark money operation. 250 million dollars is a lot of money to spend if you're not getting anything for it. So that raises the question what are they getting for it?
Well, I showed the slide earlier on the Affordable Care Act and on Obergefell and on Roe versus Wade. That's where they lost but with another judge that could change. That's where the contest is. That's where the Republican party platform tells us to look, at how they want judges to rule to reverse Roe, to reverse the Obamacare cases and to reverse Obergefell and take away gay marriage. That is their stated objective and plan. Why not take them at their word?
But there's another piece of it and that is not what's ahead of us but what's behind us. What's behind us is now 80 cases, Mr. Chairman. 80 cases under Chief Justice Roberts that have these characteristics:
- one: they were decided five to four, by a bare majority
- two: the five to four majority was partisan in the sense that not one democratic appointee joined the five. I refer to that group as the Roberts Five. It changes a little bit, as with Justice Scalia's death, for instance, but there's been a steady Roberts Five that has delivered now 80 of these decisions.
- and the last characteristic of them is that there is an identifiable Republican donor interest in those cases. And in every single case that donor interest won. It was an 80 to zero, five to four, partisan route, ransacking.
And it's important to look at where those cases went, because they're not about big public issues like getting rid of the Affordable Care Act, undoing Roe versus Wade and undoing same-sex marriage. They're about power. And if you look at those 80 decisions, they fall into four categories over and over and over again.
- one: unlimited and dark money in politics. Citizens United is the famous one but it's continued sense with McCutcheon. And we've got one coming up now.
Always the five for unlimited money in politics, never protecting against dark money in politics despite the fact that they said it was going to be transparent and who wins when you allow unlimited dark money in politics? A very small group, the ones who have unlimited money to spend and a motive to spend it in politics. They win, everybody else loses and if you're looking at who might be behind this, let's talk about people with unlimited money to spend and a motive to do it we'll see how that goes.
- next: knock the civil jury down. Whittle it down to a nub. The civil jury was in the Constitution, in the Bill of Rights, in our darn Declaration of Independence. But it's annoying to big corporate powers because you can swagger your way as a big corporate power through Congress, you can go and tell the President you put money into to elect what to do. He'll put your stooges at the EPA, it's all great until you get to the civil jury because they have an obligation, as you know, Judge Barrett. They have an obligation under the law to be fair to both parties irrespective of their size. You can't bribe them, you're not allowed to, it's a crime to tamper with the jury. It's standard practice to tamper with Congress. And they make decisions based on the law.
If you're used to being the boss and swaggering your way around the political side you don't want to be answerable before a jury and so one after another these eighty 5 to 4 decisions have knocked down, whittled away at, the civil jury, a great American institution.
- third: first was unlimited dark money, second was demean and diminish the civil jury, third is weaken regulatory agencies. A lot of this money, I'm convinced, is polluter money. The Koch Industries is a polluter, the fossil fuel industry is a polluter, who else would be putting buckets of money into this and wanting to hide who they are behind Donors Trust or other schemes?
And what if, if you're a big polluter, what do you want? You want weak regulatory agencies, you want ones that you can box up and run over to Congress and get your friends to fix things for you in Congress. Over and over and over again these decisions are targeted at regulatory agencies to weaken their independence and weaken their strength. And if you're a big polluter a weak regulatory agency is your idea of a good day.
- and the last thing is in politics, in voting, why on earth the court made the decision, a factual decision, not something appellate courts ordinarily are supposed to make as I understand it, Judge Barrett the factual decision that nobody needed to worry about minority voters in pre-clearance states being discriminated against or that legislators would try to knock back their ability to vote.
These five made that finding in Shelby County against bipartisan legislation from both houses of Congress, hugely passed, on no factual record. They just decided that that was a problem that was over. On no record, with no basis, because it got them to the result that we then saw. What followed state after state after state passed voter suppression laws. On so badly targeting African-Americans that two courts said it was surgically, surgically tailored to get after minority voters.
And gerrymandering, the other great control. Bulk gerrymandering where you go into a state like the REDMAP project did in Ohio and Pennsylvania and you pack Democrats so tightly into a few districts that all the others become Republican majority districts. And in those states you send a delegation to Congress that has a huge majority of Republican members like 13 to 5 as I recall in a state where the five, the party of the five, actually won the popular vote. You've sent a delegation to Congress that is out of step with the popular vote of that state and court after court figured out how to solve that and the Supreme Court said 'nope'. Five to four again, nope we're not going to take an interest in that question.
In all these areas where it's about political power for big special interests and people who want to fund campaigns and people who want to get their way through politics without actually showing up, doing it behind Donors Trust and other groups, doing it through these schemes. Over and over and over again you see the same thing.
Eighty decisions, Judge Barrett, 80 decisions. An 80 to zero sweep. I don't, I don't think you've tried cases, but some cases the issue is bias and discrimination and if you're making a bias case as a trial lawyer, Lindsey Graham is a hell of a good trial lawyer. If he wanted to make a bias case, Dick Durbin is a hell of a good trial lawyer. If they wanted to make a bias case and they could show an 80-0 pattern, (a) that's admissible and (b) I'd love to make that argument to the jury. I'd be really hard pressed to be the lawyer saying no, eighty to zero it's just a bunch of flukes.
All five-four, all partisan, all this way. So something is not right. Around the court and dark money has a lot to do with it, special interests have a lot to do with it, Donors Trust and whoever's hiding behind Donors Trust has a lot to do with it and the Bradley Foundation orchestrating its amici over at the court has a lot to do with it.
So, I thank you Judge Barrett for listening to me now a second time and uh I think this gives you a chance for you and I to tee up an interesting conversation tomorrow. And I thank my colleagues for hearing me out.
Transcribed by Sue Nethercott.