October 02, 2020

Sheldon Whitehouse

Senate Judiciary Committee member Sheldon Whitehouse (D-RI) discusses the battle over the Supreme Court and the role of anonymous “dark money” in the federal judiciary. He says the first presidential debate hurts America’s standing in the world.

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He’s a senator in the middle of the debate over the Supreme Court — this week on ‘Firing Line.’

I think we need to reboot our nominations process into such a way that our hearings actually mean something again.

One of the most influential Democrats on the Senate Judiciary Committee, Rhode Island Senator Sheldon Whitehouse strongly disagreed when Republicans blocked President Obama’s nominee to the Supreme Court.
He now thinks Republicans should follow their own rule and wait until after the election to fill the court’s vacancy.

Here we are weeks before an election and, suddenly — whoop — 180.

He also is focused on the influence of anonymous dark money on the federal judiciary.

The biggest donors behind the Republican Party want to control the court.

In a week when politics has reached a new low…
The question —
The radical left —
Will you shut up, man?

…the battle for the Supreme Court is the center of bitter debate.

We won the election and we have the right to do it.

We should wait and see what the outcome of this election is.

What does Senator Sheldon Whitehouse say now?

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Senator Sheldon Whitehouse, welcome to ‘Firing Line.’

Thank you.
It’s so good to be with you.

Look, this week’s presidential debate is already being called the worst presidential debate in history.
What does it say about the state of civil discourse in this country, Senator?

Well, it was pretty embarrassing.
I think you may see a lot more of those ‘any functioning adult’ yard signs or bumper stickers in the wake of this.
And as the — what? — son, grandson, and nephew of foreign-service officers, it was particularly horrifying to read the reviews from overseas newspapers.
You know, we’re supposed to be the city on a hill.
The world looks to us for leadership.
It was pretty much of a unanimous cascade of shock and horror and disappointment.

There is a view that perhaps these debates shouldn’t continue if they’re going to descend to this level of discourse.
What is your view?

Well, I don’t know.
Part of me would like it to continue because I thought that the president made a terrible impression and I thought Joe Biden made a good impression.
That’s the political side of me.
But, frankly, just as a citizen, I just do not see a thing like that happen again.

You’re a member of the Judiciary Committee, and there is talk that you soon might even assume a leadership role on that committee.
I’d like to take a look at the president’s nomination of Amy Coney Barrett to fill Justice Ruth Bader Ginsburg’s seat just before the election.
Take a look at this clip.

We won the election.
Elections have consequences.
We have the Senate, we have The White House, and we have a phenomenal nominee.

The American people have a right to have a say in who the Supreme Court nominee is, and that say occurs when they vote for United States senators and when they vote for the President of the United States.

Now, I know you agree, Senator, with Joe Biden, but does President Trump at least have the constitutional right to nominate Amy Coney Barrett?

Yeah, he absolutely does.
The problem here is mostly with our Senate colleagues, because in the very similar circumstance, they said the exact opposite thing to block President Obama’s appointment of Merrick Garland.
And I don’t think my colleagues in the Senate enjoy these kind of tire-burning 180s that they’ve had to pull to make this happen.
So that makes you start to look at, what outside forces might there be that are driving this peculiar political behavior?
And that, I think, is the unasked question of this whole sorry saga.

65 pages of her questionnaire were submitted to your committee.
Barrett doesn’t explicitly say that she would recuse herself from any election-related cases if they go to the high court.
Should she recuse herself?
And would that help your support of her nomination?

Yeah, I think she should recuse herself.
There’s an awful lot of talk and speculation that the whole reason this is being rushed is to get her on the court so that they can pack the court with pro-Trump votes so that in any dispute, you get a replay of Bush v. Gore.

Yeah, that’s exactly why I asked that question, of course, because many people, including President Trump, believe the election will end up at the Supreme Court or could end up in the courts, given all the questions about paper ballots, mail-in ballots, and the counting of the mail-in ballots.
So, there are some of your colleagues on the Senate Judiciary Committee who say that they will not meet with her at all.
The traditional courtesy call, where senators have a chance to ask questions of the nominee.
Are you planning to meet with Amy Coney Barrett?
And will you talk to her?

Actually I’m still thinking about it.
I think that the decision not to meet with her is, I think, consistent with a sense of the illegitimacy of this mad rush to try to get her into office, ‘A,’ before the election so she can vote on election disputes and, ‘B,’ before the November 10th argument on the Affordable Care Act so that she can help knock down the Affordable Care Act, which is something that she has loudly signaled she would like to do.

Prominent Democrats have said that if Democrats retake the Senate, they should increase the number of justices.
Representative Jerrold Nadler, the Democratic chair of the House Judiciary Committee, tweeted… Senator Ed Markey tweeted… And Senator Chuck Schumer, who would be the majority leader if Democrats take back the Senate, said… Now, at the Cleveland debate, Vice President Joe Biden refused to answer that question about packing the court and whether it should be considered.
And I know you, Senator, have also refused to answer that question.

Yeah.

Privately, however, do you tell your Democratic colleagues to tone it down and avoid that question?
How do you handle that behind the scenes?

I think it’s premature at this point to discuss it.
What I have said is that the Republicans should be careful in their decision-making now, because if they continue to violate every possible norm, rule, practice, or precedent of the Senate in this mad dash to ram judges into office, they should expect that they will have lost all their credibility, that they will have forfeited their credibility to challenge us if we undertake similar measures ourselves.
If you want a Senate that plays by the rules, you have to play by the rules yourself.
You can’t say, ‘The rules don’t apply when we’re in charge, but once the Democrats are in charge, now we’re going to be scrupulous custodians of the rules.’
You will have no credibility, and I think they’re losing their credibility on that subject very rapidly.

Are Republicans delegitimizing the process?

Very much.

Does that risk making the court illegitimate in the eyes of Democrats?

I think it does.
I think that the rush to push these judges through and to violate all these norms and precedents, again, it raises some very, very awkward and difficult questions.
And I think the court, as an institution, is harmed for the benefit of whoever the winner is in all of this.
But the winner in all of this for sure is not the court as an institution.

Will you consider the Supreme Court illegitimate if Judge Barrett is confirmed?

I will say my piece on it.
I’m not sure that that’s the word that I would use.
What I have said is that I think that there’s a lot of undue influence in the court process, that there are a lot of string-pulling being done, and that we need to do a lot of investigating to find out, what is actually going on?

You know, this program, ‘Firing Line,’ was originally hosted by William F. Buckley Jr., and in 1972, a year before Roe v. Wade was decided, William F. Buckley Jr.
hosted a conversation about the legality of abortion with two lawyers — one in favor of its legalization and the other against it.
They were discussing an important abortion case that was possibly headed to the Supreme Court, the so-called Byrn case, and the subject of religion came up.
Let’s take a listen.
Amy Coney Barrett is Catholic.
Is it fair to ask whether a person’s religious beliefs might affect their judicial rulings?

The rule that I have described several times in the Judiciary Committee is what I call the Robing Room Rule.
As a general matter, I think somebody’s religion is not a grounds for voting to confirm or not confirm them as a judge.
It’s just kind of not fair play.
And with our history of religious persecution, particularly of Catholics, it’s particularly important, I think, that we honor that.
But things change when the judge puts on their robe in the robing room and steps up onto the bench.
Then they are an agent of the law, and every American who comes before them has the right to have decisions made in their case based on the law and not based on any personal predilections or preferences of the judge, whether religious or not.

Senator, with that said, I’d like you to take a look at a moment from Amy Coney Barrett’s confirmation hearing in 2017.
Take a look at what one of your colleagues said at the time.

Whatever a religion is, it has its own dogma.
The law is totally different.
And I think, in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.

Senator, do you agree with your colleague there that her religion is a dogma that live loudly within her?

That was our ranking member, Senator Feinstein of California.
And if she was talking about what my standard is, which is the Robing Room Rule, then I agree with that, because I think there is a point at which you have to leave your personal predilections behind when you step up onto the bench.
If she’s saying something else, then it’s different.
But I think everybody in the room actually agrees that the Robing Room Rule is the right standard.

Your philosophy is that a justice needs to leave their religion in the robing room.
So do you have confidence that she’ll be able to do that?
And why not meet with her to find out?

As I said, I do not know and I have not yet decided upon meeting with her.

What will that be based on?

I’m still thinking it through.
So, you know, part of me wants to reject this process that our Republican colleagues have gone through with a complete 180 and this really rapid rush.
Part of me wants to give her a chance to at least understand my point of view about what role she has in all of this.
And I’m still dwelling on it, let’s just say.

Let’s get to dark money.
You have co-written a report about dark money on the judicial system, and even just last week, you testified before the House Judiciary Subcommittee about the issue.
Explain to our audience who are new to this idea, what is dark money?

So, dark money is big donations whose donor remains anonymous, who is hidden behind the the screen of anonymity.
It was originally a term used to refer to big political spending that is out to influence elections, but it has obviously transferred to big political spending that is out to influence judicial nominations and selections.

Help us understand what most concerns you about dark money in the political battles around judicial nominations.

What most concerns me is this.
At the moment, everybody from President Trump to his White House counsel to innumerable others have said that a private group called the Federalist Society is doing much of the selecting of nominees and has a very important, vital, perhaps the dominant role in judicial selection.
Once you have your candidate, another group called the Judicial Crisis Network spends tens of millions of dollars in political advertisements.
Once a judge is on the court, other groups that take a lot of dark money to fund their activities bring carefully selected cases before the court, and when the case is before the court, a flotilla of still more dark-money-funded groups shows up to basically provide a chorus of almost ritual support for the outcome that they want.
So each one of those steps is a little bit weird, but when you put them all together, until it can be shown otherwise, I think the cautious and prudent concern is to worry about whether it’s the same anonymous funders behind the entire operation that are funding the selection of judges, that gatekeeper function, so they get the judges they want, that are funding the political campaigns for those judges, that are funding the anonymous legal groups that are bringing the cases, and that are funding the flotilla of amici curiae.
If, in fact, it’s the same group behind all of that, I think that is a very dangerous proposition for judicial integrity and for American democracy.
At a minimum, that ought to be being done in the plain light of day, and, actually, it should not be done at all.

So, just to to unpack that, because you’ve said a lot there first, I mean, viewers should know that — and you know this — that the Federalist Society is an association in which lawyers and judges and law students across the country, thousands of them, choose, voluntarily, to affiliate because they subscribe to a similar world view of jurisprudence and legal review.

Yeah, it has multiple roles, and its role on law campuses around the country is totally benign.
And while I disagree with their political views and a lot of their jurisprudential views, I have exactly zero problem with what they’re doing.
They also are a big Washington think tank that gives big dinners and brings fancy people together to talk about legal issues.
That’s not the problem.
The problem is with having moved into the area of judicial selection and being unable to explain how they keep that separate from the interests of their big dark-money donors.

And so you are concerned that the donors are somehow selecting justices or judges who end up in positions to decide things in favor of their donors, to decide cases of the very same donors.

That’s exactly the problem.

Okay, so that is what you speculate is the problem, but do you have any reason to believe that justices are making decisions based on their support from right-leaning groups as opposed to their own judicial philosophy and the experiences they bring to the bench?
It feels conspiratorial.
Why are you persuaded?

When you are in the position I’m in, I don’t have access to the internal thoughts or the private conversations of justices.
And so I started looking into patterns of behavior.
And we are now, under Chief Justice Roberts, at 80 cases in which the decision was only 5-4.
It was the narrowest possible of majorities, and the outcome was an 80-0 blowout for the Republican-donor interests.
So that’s a pattern that I think is compelling enough to merit further inquiry.

And what’s an example of one where you feel like if there’s smoke, there’s fire, there is a Conservative interest that’s being served?

Citizens United, which is not originalist and broke precedent.
So it’s not, you know, traditional stare decisis.
So it broke traditional conservative judicial principles, but it did allow special interest to spend unlimited amounts of money in politics, which is obviously a great thing for them.
And I wouldn’t be surprised if some of those special interests are part of the people who are funding the operation to influence the courts.

Tell me something.
Look, isn’t the idea of having a lifetime appointment that justices are then above politics?

Absolutely.

And why is it, then, that it would be in the interest of a justice with a lifetime appointment to serve quotidian political special interests?

That’s a terrific question.
I don’t have an answer to it.
All I can do is observe what I consider the norm breaking and observe the pattern and observe the massive flows of dark money.
And when you put those things together, it’s just not normal.
We’ve never seen anything like this before around the court.
It’s very, very peculiar.

Well, it could also be explained — I mean, one other alternative explanation is that the justices, you know, re-read their opinions and they have an earnest and sincere, while you may disagree with it, view that has led them to these conclusions that are very methodical and have nothing to do with special interests or dark money or or nefarious interests.
But I want to ask you about something else, because I read your testimony with great interest in the House Judiciary Subcommittee this week — last week, rather.
And I heard you talk about the Federalist Society.
But one of the things I noticed you left out was any mention of dark-money groups on the left.
You mentioned Leonard Leo, the Federalist Society a couple times.
But, as you know, the group Demand Justice has pledged to spend $10 million against an Amy Coney Barrett’s nomination.
Furthermore, there is a group, Arabella Advisors, that has subsidiary organizations, the Sixteen Thirty group and the New Venture Fund and other affiliated dark-money groups who, in the last cycle, 2017 and 2018, raised almost a billion dollars.
Why didn’t you bother mentioning these left-wing dark-money groups in your testimony, if you’re truly interested in eradicating dark money in politics and, frankly, in the judiciary?

For starters, I am truly interested in eliminating dark money.
And the legislation that I have filed to eliminate dark money, both in political and judicial spending applies to everybody.
There is no exemption of any kind.
I focus more on the Federalist Society because, right now, we are seeing judges appointed who the president himself claims were pre-selected by the Federalist Society.
Nobody claims that of any other organization in the planet.

editorial board has written some 19 editorials critical of you over the past year.
Why do they love you so much?

I don’t know.
Bizarre infatuation.
I’m actually not that, you know, infatuation-worthy.
So I do suspect that they’ve got a long history of representing the interests, on the editorial page, of companies that are big polluters.
They have said that climate change is a hoax.
It’s virtually impossible to find a pollutant that they haven’t tried to find an excuse for or a polluter who they haven’t tried to defend.
And when you look at a lot of the focus of where I’ve put my effort, it’s to try to figure out who’s the dark money behind the climate-denial operation and who’s the dark money behind the effort to weaken regulation of, say, polluters in the courts?
So I strongly suspect that there is some cross-reference to what I’m getting at rather than just them being taken by my charm.

Let me ask you a question.
ActBlue raised about $100 million in the weekend immediately following the passing of Ruth Bader Ginsburg on a Friday night.
And they plan to spend much of that money fighting the nomination of Amy Coney Barrett.
Do you oppose, if you had your druthers, all political spending against judicial nominees, especially on that scale?

I think that, at a minimum, it should be transparent.
I view ActBlue as an intermediary, that when you go to ActBlue, you can find out who gave it.
If I’m wrong about that, then, boom, they should be in the exact same position as anybody else who is — Like, the equivalent would be DonorsTrust.
DonorsTrust is a mechanism that has no purpose except to launder the identity of a donor away from a donation so that the recipient can say, ‘This came to me from DonorsTrust,’ rather than from whoever the real donor was.
I don’t see ActBlue as playing in that exact same way at all.

You mentioned DonorsTrust, which is a pass-through entity on the right.
Of course, there’s the Tides Foundation that does the exact same thing on the left.

Then that should stop, too.

Okay. because all your examples seem to be from the right, I just want to mention.

You know, they got way ahead of us on this.
And what I see working out on the court is all effect from the right.
You know, there’s nobody else like the Federalist Society, who the president says, ‘Is giving the lists of who I can appoint, and I’m appointing off their lists.’

To be fair, Senator, that also may be the president himself doesn’t have a judicial philosophy, and so he’s outsourced it to a group that he sees as convenient.

All the more reason to look at who’s funding that group to make sure that they are not quietly, sub rosa, in a clandestine fashion, having a voice over who is on our highest courts.

My final question for you, Senator, is, what is your prediction for November?

I think the Senate is a toss-up.
I think it’s going to be very close.
I think the presidential race is a toss-up, as well.
So I think it’s really important that people who care about this election get out and vote.
And to the extent they can vote in person, get out there now and vote in person as soon as you legally can so that your vote is counted by Election Day and we don’t end up with a situation in which the president is trying to block or discount mail ballots while they’re being counted and rushing to the court, where he has built a 6-3 majority to throw out Americans’ votes and reinstall him as president against the will of the people.
That would be a nightmare scenario.

And, so, I heard you say in there that — Buried in there is that you also suspect that Amy Coney Barrett will be confirmed to the Supreme Court
At this point, they have the votes, they have the motivation, and unless something should change, that appears to be the direction.

Alright.
Senator Whitehouse, many thanks for joining me on ‘Firing Line.’

Thank you so much for having me on ‘Firing Line.’
Good to be with you.

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