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(upbeat music) - Hello and welcome to The City Club of Cleveland where we are devoted to conversations of consequence that help democracy thrive.

I'm Dan Moulthrop, chief executive here, also a proud member and today's June 11th, you're with another virtual City Club forum.

We are again live from the studios of our public media partner 90.3 WCPN Ideastream.

We're very grateful for their partnership.

Sheldon Whitehouse is the Democratic Senator from Rhode Island.

He's also chair of the Senate Judiciary Courts Subcommittee.

And he's come to be renowned for a series of Senate floor speeches he made examining what he called a decade's long effort by conservative interests to remake the federal judiciary.

These speeches followed a series of captured courts reports that he and the Democratic Policy and Communications Committee released last year, reports that detail the impact Republicans and millions of dollars of so-called "dark money" have had on the courts, citing the nearly 200 judicial nominees including three Supreme Court seats confirmed since President Trump took office in 2017.

The reports maintain that many of these appointments were not based on any judge's qualifications or expertise but rather on their ability to further the goals of the Republican party.

These are serious charges indeed.

Senator Whitehouse has spent a large portion of his Senate career spotlighting the effect of "dark money" in government.

He's the author of "Captured: The Corporate Infiltration of American Democracy," which describes how corporations use money to attempt to influence government officials and decisions.

And to be sure, Senator Whitehouse knows a bit about the courts from prior to being in the Senate.

He served as Rhode Island's US attorney and State Attorney General before being elected to the Senate in 2006.

Today, we'll talk with him about what has come to be known as "court capture" and what it means for the future of an independent judiciary, the rule of law and American democracy.

If you have questions for Senator Whitehouse, please text them to 330-541-5794.

That number again is 330-541-5794, to text your question.

If you're on Twitter, tweet them at The City Club and we will work them into the program.

Senator Sheldon Whitehouse from the great but tiny state of Rhode Island, welcome to The City Club of Cleveland.

- [Sheldon] You had to go with size, didn't you Dan?

- Size doesn't really matter, but- - [Sheldon] Yeah, yeah, you're right.

- Some people identify as an extraordinarily long coastline Senator.

Senator, what are we talking about when we use the phrase "court capture", what are you talking about?

- [Sheldon] May I just say one thing because we're just getting launched and that is that I couldn't be happier to be with The City Club Cleveland.

I know a lot about your story, the history and my friend Sharon Brown in the Senate is a huge fan and told me the story of the only time you let somebody speak without answering questions.

When Robert F. Kennedy came to speak the day after Martin Luther King's assassination and he spoke about it and left the podium in tears.

So nobody had the cruelty to drag him back to the podium.

- [Dan] That's right.

- [Sheldon] So I'm honored to be with you, so what is a "court capture"?

- We're honored to have you sir.

"court capture", what do we mean by that?

- [Sheldon] There's a well, well known doctrine called regulatory capture.

And it's prominently written about in economics, it's prominently written about in administrative law and it's basically taking an administrative regulatory agency and turning it into a tool of the regulated industry.

And "court capture" is basically taking that strategy and moving it out of executive administrative agencies and looking at courts in the same way.

And so that's what we're talking about.

We're talking about courts that are no longer interested in impartial justice so much as having an agenda for a particular set of parties.

- [Dan] So who's doing this?

- [Sheldon] Well, it's a little hard to tell, because it is heavily funded by what we call "dark money" meaning anonymous funding and big, big contributions, you know, $15 million in a single check, $17 million in a single check, but anonymous, laundered through groups that don't reveal their donors so you don't know who is behind it.

But if you look at the behavior and if you look at some leaks here and there, it's enough to draw a pretty solid picture and it's a group of big right-wing interests and foundations that seem to be behind most of it.

- When you look at that pretty solid picture who do you see though?

I mean, is this, I mean the sort of right wing bogeymen that people often talk about are the Koch Brothers, is that what we're talking about?

- [Sheldon] Yeah, The Bradley Foundation, the Koch Brothers, the Mercers, Donors Trust, which is a Coke-managed identity laundering shop that takes big donations and puts them through it so that you don't know who the actual donor is any longer.

There are pretty constant clues.

- Senator Whitehouse is any of this against the law?

- [Sheldon] Some of it technically probably is, but for a number of reasons, there has been really no enforcement.

And so it's really hard to tell because there hasn't been an investigative work done to determine what laws might or might not have been broken.

Some of the groups involved are what they call 501 (c)(4)s which under the IRS rules are in theory not supposed to get involved in politics, but the way that the IRS has been manipulated more and more they've gotten into fully politics.

I think that's in violation certainly of the spirit of the law, but we've done a lousy job of fixing that.

So whether it's a violation or a loophole, it's nasty conduct in a democracy one way or the other.

- Senator Whitehouse let me just remind our audience that we're speaking with Senator Sheldon Whitehouse of Rhode Island.

He is a member of the Committee on the Judiciary and Chair of the Subcommittee on Federal Courts.

And Senator Whitehouse, much of this, I will say, this came to my attention and your interest in leadership on this topic came to my attention during the hearings for Supreme Court Justice, Amy Coney Barrett, and you delivered some very impassioned remarks.

And I wonder, we don't have the time for you to redo all of them.

But I wonder if you could summarize because there was a story and a narrative that you laid out there that some people will remember, some may have missed, but I think it's a really important kind of background for understanding all of this.

- [Sheldon] Yes, if I basically went through the stage of the capture operation, with the first stage being exerting control over who got selected for significant judge-ships, particularly Supreme Court positions and that was controlled through an organization called The Federalist Society.

And during the time that this private organization was controlling the turnstile to the federal judiciary, they were also taking enormous, anonymous contributions.

And you don't have to be a very bright law student to figure out what the conflicts of interest are possible there.

Then once you've got your selected nominee, they ran political campaigns for them in swing states with lots of TV, through another group called the Judicial Crisis Network which is the neighbor in the same office building, in the same floor as the Federalist Society and exchanges staff pretty regularly.

And they're the ones who were taking these 15 and $17 million checks to pay for the big ad campaigns.

And then once you've got your judge on the court, and confirmed, there's a flotilla of groups that file briefs in the court as what are called "friends of the court."

"Amicus Curiae" is the Latin term.

And it's a rule in appellate courts that people who are not the parties to the proceeding can have a chance to come in and have their voice just as friends of the court and file a brief.

And what we see is these groups that have no real reason for existing, other than to hide the identity of whoever is behind them, they don't make products, they don't do services, coming in in flotillas of 10 or 12 to write briefs that are very, like an echo chamber of each other.

Basically providing a chorus of instruction as to what they want the courts to do.

And they also are, all of this is anonymously funded with big contributions.

And there's every reason to believe that it's the same donors who are behind all three elements of the operation.

- There's a number of questions that I have around this and that I'm sure our listeners have as well.

And I wanna remind you, if you have a question for Senator Whitehouse, you can join us with that question when you text it to 330-541-5794 or you tweet it at The City Club and the second half of the program, of course, is always devoted to your questions.

Senator, I just want to come back to something you said about the Federalist Society and the Judicial Crisis Network.

You said they share, they are located on the same floor in the same building and they in the same hallway and they share, they frequently share staff.

I wanna just go back to the history of the Federalist Society for a second.

Their name makes them sound as if they've been around since the constitution was written but that is not the case.

- [Sheldon] No, they were started, I think at Yale Law School by conservative students who objected to what they thought was a liberal indoctrination in law schools, from faculty in the liberal leanings of their schoolmates.

And it spread from there very quickly to law schools all across the country.

And there's absolutely nothing wrong with that.

That is totally appropriate behavior.

If people wanna get together and form groups that's what we do.

And the groups got big and strong enough that then opened a DC office, and it's that DC office that is right next to Judicial Crisis Network.

And in that guise, it became a little bit like a DC think tank.

And I'm not a big fan of DC think tanks, but there are lots of them and this is not all that different than others.

So there's no real problem with them having or being a think tank.

The problem came when they inserted themselves into the process of judicial selection to the point that Trump was saying I'm outsourcing my judicial selections to this private group.

Now, if you're gonna ask a group- - Which he said, he said that during the campaign.

- [Sheldon] Yup, yup, repeatedly.

And then his legal counsel said more or less the reciprocal, which is people say that, you know, we outsourced our judicial selection to the Federalist Society.

Actually I am in the Federalist Society and I'm working in the White House.

So what we did was we insourced it.

So like, it's a bit of a joke but it shows the degree of control that the Federalist Society operation the judicial selection operation within the Federalist Society had over that process.

And if you were to go to a first-year law student and say, "Okay, here's the deal, we're going to have a private group have control over who gets selected to the United States Supreme Court, tell us what your concerns are about that."

Every student would be able to come up with some really serious concerns.

And they'd probably basically all be the same ones.

Particularly if you added that the private group was taking huge donations at the same time that they controlled the turnstile, and worse yet they were taking huge donations that were anonymous at the time they controlled the turnstile.

It's kind of an indefensible proposition.

- Would you have suspected, I mean, if Donald Trump had never said that during the campaigns, but then had these opportunities to appoint, to make the Supreme Court appointments that he did.

And many people would have assumed that this was happening with the assistance of the Federalist Society.

- [Sheldon] Yeah, and I think there would have been a good deal of research into this that would have put a tag on it, but the fact that they did it in plain view and admitted it sort of simplifies the equation.

I'd give credit to the Washington Post here.

They did a very significant expose about this, that showed the network of groups that were interlinked with this Federalist Society based judicial selection operation and the person who led it.

It was a character named Leonard Leo, and they were able to look at financial information and basically sum up that this was a $250 million operation.

Somebody was spending a quarter of a billion dollars to make this work.

So nobody spends a quarter of a billion dollars without expecting a return of some kind.

And that's what raises all these questions.

- [Dan] Who is Leonard Leo?

- [Sheldon] Leonard Leo was then the Executive Vice-president of the Federalist Society.

When the Washington Post expose came out, he jumped away from that and went over to something called the Judicial Education Project.

I think the, no, Honest Elections Project, Honest Elections Project, which was a newly stood up voter suppression group.

And the woman who ran the Judicial Crisis Network jumped over to take his position running the Federalist Society elections operation.

And just to make sure the knot is really tied, the Honest Elections Project is basically a renaming of another group called the Judicial Education Project which is the sibling, the corporate sibling of the Judicial Crisis Network.

So if you were to take this into court and ask the judge to pierce corporate veils, I think you'd have a pretty easy case showing that this is all just one big scheme.

- This may be a very obvious question, but it bears asking I think, anyway, the people who you allege have spent a quarter of a billion dollars on this process, you said they must want to get something out of it.

What do they want to get?

- [Sheldon] I think they want a court that will deliver decisions that are consistent with their desires and their will as to how America should operate.

And it's particularly important for them to deliver things through courts because there's some things that even Republican legislatures just won't do.

So for instance, if you had gone to Republicans in Congress and said, "We want you to pass a law that allows special interests to spend unlimited amounts in politics."

You'd have a really hard time getting that through, particularly without safeguards about the identifying who those special interests were spending unlimited amounts of money, wouldn't gonna happen.

But they went to the Supreme Court and five to four, they got the Citizens United decision that said, "Oh, guess what?

You can spend unlimited amounts of money in politics.

And oh, by the way, we're not going to enforce the transparency piece, so it can be anonymous, unlimited money in politics."

- Would you be as concerned about this if the Democrats were doing it as well?

Or actually I'm making an assumption that they aren't doing it?

- [Sheldon] Yeah, I mean, you know, I'm sure that there are once "dark money" became a thing in the wake of Citizens United, it took us a while to figure it out and catch up.

The Republicans are usually a generation ahead in political technologies, but we did catch up.

And in fact, I think in the last election, there's probably more Democrat than Republican "dark money" spent in the election, but we have nothing like the organization unity, discipline, and sophistication of the Republican "dark money" operation.

It's been at it longer, it's more coordinated and it's run like a corporation running a very significant covert operation.

There's central control, people get their different roles in it.

I think it's all carefully managed from a central node, but like any covert operation, it builds in deniability to the central node.

- So, you know, the basis for the Citizens United decision, and I'm like, I'm not a lawyer.

I don't even try to pretend that I'm one.

But my layman's understanding of Citizens United is that this kind of influence or that corporations and others may seek is a form of political speech.

We are devoted to the First Amendment, to freedom of speech.

This is a way to lobby the government.

This is a way to try to make your wishes known to the government that represents you.

Why is that so bad for democracy?

- [Sheldon] Because speech is one thing and money is something different.

You could say that gunfire is sometimes used to accomplish political results, it is therefore a form of speech, but you would never say, we're not gonna regulate gunfire any longer because it could be speech.

It could be used to try to influence political things.

And in the same way, when you say that money is speech, and therefore we're not gonna regulate it in any way, it overlooks the fact that money is also political pressure.

It's also completely undemocratic in the sense that a very few people have most of the money and a great many of people have none.

So that becomes your proxy for speech.

You've just contorted the electorate dramatically in favor of the rich and, you know, worst case, money is bullying, money is corruption, money is, you know, sweetheart deals behind the scene.

Money is a lot of stuff in politics that ought to be transparent and ought to be regulated.

It's different than writing an op-ed to the Providence Journal.

- Right, the op-ed to the Providence Journal is certainly a very like sort of, you know, any man kind of, every man sort of thing.

- [Sheldon] Everybody got the same chance to do that.

- Yes, that's true.

- [Sheldon] It's even.

- It is a level playing field with the Providence Journal or the plain dealer- - [Sheldon] And it's particularly worse when you say corporations can come in because we kind of actually, are we the people and corporations are full of people.

So you could perfectly well have CEOs talk and vote and give money and encourage their workers to vote the way that is beneficial to the employer and all that kind of stuff.

But the idea that you then stand up a corporation as an independent and separate entity that can spend its own treasury money in unlimited amounts, and then hide who they are, while they're going for what they want in politics, that does another division of the electorate.

And it takes people who have their own voice, their own wallet, their own brain, and adds to them this extra corporate layer in which they basically can drive these enormous machines around and get much, much more power by virtue of the corporate machine that they can drive around in addition to their role as citizens.

So this whole corporate citizenship thing is a real distortion, I think, of a founding fathers' view of what America was going to be.

- So, let me push back a little bit on this.

And, you know, sort of in this nation, were devoted to the rule of law.

The courts have decided Citizens United in one way.

And if we are devoted to the rule of law, then we say, okay, we're gonna follow this for as long as this is the precedent that has been set or until we change the legislation, right?

Isn't that the sort of attitude we should take towards all of this?

- [Sheldon] Not necessarily.

You know, we're a robust democracy.

The fact that the Supreme Court has decided something is certainly not an immunization from criticism.

The Supreme Court also decided the Dred Scott Case, it also decided Plessy versus Ferguson.

It also decided Lochner.

It's decided a lot of decisions that over the years we've learned were not only wrong but disgraceful.

And we have to keep that history in mind when we're evaluating current work of the Supreme Court.

And it becomes particularly acute when you've got the regulatory capture apparatus swirling around the Supreme Court and then perhaps not coincidentally so often getting its way in five to four decisions that are driven by the five Republican justices who they helped get on the court.

- Have you seen this happening at the level of the federal judiciary below the Supreme Court?

- [Sheldon] They work very hard to get to the Circuit Courts of Appeal as well, both as a training ground and auditioning platform for future Supreme Court nominees.

And because Circuit Courts of Appeal make important policy decisions as well.

It's less of a big deal at the district court trial court level.

- And when you're looking at the appointments to the Supreme Court of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, you believe that this is exactly how they were placed on the list how they made it through, how the friends of the court briefs were filed.

- [Sheldon] They come exactly through that machinery.

There are some interesting questions about Kavanaugh because he used that machinery to get around the Trump list.

He was not on the original Federal Society-approved Trump list, but Leonard Leo escorted him around the list and he became the favorite candidate.

All three of them had very, very significant Senate problems, Gorsuch because the Senate had done something unprecedented and denied president Obama the chance to put Judge Garland on the court, Judge Kavanaugh, because of all the nightmarish stuff that came out during his confirmation, which they just rolled over on.

I mean, it was a complete stampede that didn't get an honest look, and then along came Justice Amy Coney Barrett where the Republicans totally reversed themselves on the rule of late in the president's term appointments and shoved her on the court with much less time remaining than they had used to justify blocking Garland in the Obama term.

So every single one of those had a very peculiar stain on it in the way that it was done.

And every single one was marked by that same judicial selection process.

And every single one had the Judicial Crisis Network millions spent on behalf of the candidates.

And they've been ruling exactly as predicted.

- Senator Whitehouse, when you raise these issues with your colleagues across the aisle on the committee what did they say?

- [Sheldon] Mostly, they don't wanna hear about it.

This has been a really really important political issue for Republicans.

There's a reason that Mitch McConnell dedicated essentially the entire Trump administration in the Senate to shoving justices and judges onto courts and breaking pretty much any Senate norm rule or tradition that stood in his way.

So this is a very, very big deal to them.

I will say that I've gotten a little bit of traction recently on the question of the justices declaring where they get travel hospitality and gifts, because they don't report the way circuit court judges do.

They don't report the way members of Congress do, they don't report the way cabinet members do, they give themselves a really big break on what they report and Senator Graham, Lindsay Graham joined me in a letter to the chief justice saying could you please explain to us what's going on?

I think we wrote that in February and I've had no answer.

So then Senator Kennedy, who's the ranking member in my subcommittee and I, wrote a letter to the Marshall service which provides travel escort to justices when they travel out of Washington to ask them about the travel.

So we can compare what was reported to what the travel actually was.

So those two things have been bipartisan because it's really hard to defend why a Supreme Court justice should have lower standards of ethics disclosure than anybody else at a, you know, serious senior level in government.

- We're talking with Senator Sheldon Whitehouse, he's on the committee on the judiciary.

He's very well known over this last year for a series of floor speeches he gave about the concept of "court capture" and the role of "dark money" in influencing the selection of Supreme Court justices, as well as influencing decisions at lower level bench, the lower level courts as well.

If you have a question for Senator Whitehouse, not just about "court capture", but also about anything else we have any, he is, it is open season as- - [Sheldon] We take on all comers.

- He's a Senator, and he well knows that you may have questions about other areas that he works on.

He's very interested in climate and environment and public works as well as finance and he serves on the committee on the budget as well.

So, that covers just about everything.

Senator Sheldon Whitehouse is our guest, as I said, if you have a question, text it to 330-541-5794.

That's 330-541-5794.

And you can tweet your question at The City Club and we will attempt to work them in.

Senator, one of the first questions that came in, actually prior to our program today, can you name one or more liberal or left leaning activist groups or money sources of concern or is it only the conservative groups that concern you?

- [Sheldon] The conservative groups have developed this into a much more robust operation and it has actually led to the appointment of three members of the United States Supreme Court and a considerable number of Circuit Court of Appeals judges.

And those appointments have been accompanied by a lot of the mischief and peculiarity that I have described.

So there is not an equivalent track record on the Democratic side.

There are groups on the Democratic side that would like to influence traditional selection and that do take "dark money".

But the solution that I propose to this, I'm not drawing attention to it just for the sake of drawing attention to it, I wanna solve this problem.

And the solutions that I propose would apply to all groups doesn't matter their orientation.

I don't think there should be "dark money" circling the Supreme Court.

I don't think that when you're running ads for Supreme Court justices, you should be able to hide who you are.

I don't think private groups should control judicial selection.

And I think if you're gonna show up in court as an Amicus, you should be candid about disclosing who you're really there for, and that would apply across the board, whether you're the (indistinct) union or whether you're the Koch Brothers, Americans for Prosperity.

- Senator, I'm gonna ask you to take your hand away from your face because it interferes with the microphone.

- [Sheldon] Oh, sorry.

- No, that's quite all right.

So have you spoken to liberal groups as well and major concerns about "dark money" on that side known as well?

- [Sheldon] Yep, yep.

And what we have is I think pretty much unanimous support from the vast majority of the Democratic side for cleaning up "dark money", not only cleaning up in politics where it has such a corrosive effect in our elections, but making sure that the same rules for "dark money" in politics apply to "dark money" used to campaign for judicial appointees.

That's a bill that I have in Congress right now.

And I think it, it has really brought Democratic support and really inconsequential.

There's no Democratic opposition that I can think of.

It applies across the board to everyone.

- Oh, I see.

- [Sheldon] That's another telltale here, you know.

Democrats take "dark money" because that's the rule of the game right now, thanks to Citizens United.

But at the end of the day, when it comes to a vote to fix it, the last time I took my bill to the floor every single Democrat, 59, it was then voted for it.

Every single Republican who was voting, voted against it it died one short of breaking the filibuster and we've had all this "dark money" menace in between, so- - [Dan] You couldn't get one Republican?

- [Sheldon] Not one.

I'll give Senator Murkowski credit.

She came to the floor and expressed her concern about "dark money" and said that she wanted to look into it more.

And that this was not a happy vote for her because she was really concerned, but she did vote with the rest of her colleagues.

- How much of the info?

This is another question from our audience.

How much of the information that you cite comes from the leaks that you mentioned?

And do you think, depending on leaks is a bit of a slippery slope.

- [Sheldon] Most of this isn't really leaks.

A lot of this comes from financial reporting that comes later in the process or through different avenues.

There's not a whole lot that's leaks.

The one thing that we got that was interesting that came out of a leak was somebody hacked into some groups and then posted all their stuff online.

And there was a lot of conversation about that and the groups didn't contest that what they had been, what had been hacked was real and was theirs.

And it was out of some of those emails that we were able to find groups, what they called orchestrating Amicus briefs together in the US Supreme Court and not disclosing who was really behind the briefs.

And it was kind of behind the scenes watching who was sending the money to the front group so that they could come in and file as Amicus Curiae.

- It strikes me Senator that in all of this coordination and there must be some documentation or emails or some communication directly with the White House over these, over the, during the previous administration.

And is there no way to subpoena that in those communications, that information?

- [Sheldon] They took the position in the Kavanaugh hearing that we couldn't see anything that related back to his work there in the Bush days when he was working on getting judges appointed to the courts and that this is executive privilege and deliberative process and all that kind of stuff.

So we have not had good luck digging into that.

And frankly, we really haven't needed to very much, because the point there is that the president of United States had given a private organization say so over the significant judicial appointments.

And he concedes the point publicly.

So, if we could find emails I'm sure there'd be details that could come out.

And that would be kind of interesting and a little bit, you know, educational, but the fundamental principle or the fundamental fact that the Federalist Society, this operation within the Federalist Society was running judicial selection for the Trump White House is not contested even by the Trump White House.

That's really public record.

- As I've mentioned, we're talking with Senator Sheldon Whitehouse of Rhode Island about the concept of "court capture".

You're also welcome to ask questions about other areas of his work as a US Senator.

If you have a question you can text it to 330-541-5794, or tweet it at The City Club.

We will work it into the program.

This is your City Club Friday forum, and I'm Dan Moulthrop.

Another question for you, sir, is "court capture" really happening or is what we're seeing just the tradition of the party in power driving the upper chamber's agenda.

The Republicans appointed many judges under Trump and perhaps now we'll see the same action with President Biden.

Does this kind of language calling it "court capture" actually undermine public trust in vital democratic institutions?

- [Sheldon] There is a long history of the party in power appointing judges whose views are consistent with the party in power, that's happened for pretty much, as long as there have been judges.

What's a little bit different and strange here is that by handing off the selection process to a private organization that was taking multimillion dollar anonymous donations, you allow private groups the chance to have, I think, undue and private influence in who gets selected.

It's not just a question of they've worked for us, you know, we like them, they lean liberal, they lean conservative and you get a process where one circuit court judge said to me in some real dismay, you know, I'm watching colleagues on circuit courts who are auditioning for the Supreme Court and the way they write their decisions.

They know they have an audience that is making the decisions about who's gonna be elevated to the Supreme Court.

They know pretty much what they want.

A lot of it has to do with preserving "dark money" and you know, closing labor unions and stopping voter protections and things like that.

And they are auditioning themselves and the way they write their Circuit Court of Appeals decisions to appeal to this group.

And I think that gets a little bit toxic, particularly if the groups funding the selection are the same groups that are funding the confirmation millions and are the same groups that are then showing up behind front groups as Amicus Curiae.

And, you know, we'll look more into travel gifts and hospitality but who knows, they could be providing an awful lot of hospitality at the same time.

It's, there's a difference here that I read somebody who's been in court a long, long time.

And I think the behavior of the court confirms that they're up to 80 decisions now in which the Republican majority five to four has rendered a verdict favorable to a big Republican donor interest.

And if you look at the five to four cases, that's almost all of them.

And it's just an absolute slew of victories for right-wing donor interests.

And you don't have to be a very sophisticated political person to understand what they wanted and how they got it.

So, it, there's always, yes, there is always some politics around judicial nominations.

The question is, is it still healthy or has it gone toxic?

And my concern is that it has gone toxic.

- Another question that kind of picks up where you just left off, selection is the first step, but ultimately the Senate approves or not the judicial candidate.

By digging deep into where the nominations may have begun, are you implying that candidates are not qualified but they've been approved regardless?

- [Sheldon] Well, we sure had plenty of candidates who were not qualified come through during the Trump years.

I think he set the modern record.

In fact, I think he set the all-time record for the most judicial nominees deemed unanimously unqualified by the American Bar Association.

He had one beauty who blew up in front of Justice Kennedy because he didn't know what emotional liberty was and didn't know what the Daubert rules were.

So if you're a lawyer, that's pretty elementary stuff.

So yeah, that is a problem.

I think once you get to the Supreme Court level, you're not sending dopes up to the Supreme Court.

The problem, there is more this question of auditioning and whether they've spent their careers sending semaphore to the donor interest who control the Republican process to tell them that when your matter comes before the court, you can trust that I'll be with you 'cause I've already shown you this right here, in this other decision down in the DC circuit or the eighth circuit, and that, you know, was an obvious concern.

- So, are you saying, I just wanna be clear about what I think I hear you saying, which is that in over the course of your career you've read thousands of decisions.

And they used to seem like they were devoted to rule of law, to impartiality, to doing what's in the best interest of the American people.

And that the trend that you're seeing, particularly among those who have been appointed by Republican in as Republican judges or appointed in through a kind of Republican process Republican Party-led process.

You're saying that those folks are writing their decisions and making their decisions, issuing decisions, and then kind of adding coded language or including coded language in them to signal- - [Sheldon] At the circuit court level.

- In the circuit court level.

- [Sheldon] Mostly, at the Supreme Court level, sometimes the signal is, this is what we wanna do.

Come back to us with the right case.

So the anti-union Friedrichs case that became Janice was signaled by one of the Supreme Court justices.

If you bring me a case like this, you know, you'll get the desire, you get the decision that you want and that caused some of these front groups to go rushing out to court as quickly as they could and went into court and said, "Your honor we wanna lose, quick, make us lose as quick as you can."

I've been a lawyer a lot of years.

I've never seen that happen, never heard of that happen.

- Because they wanna be able to appeal all the way up to the Supreme Court.

- [Sheldon] Then they rushed up to the Circuit Court of Appeals and said, "Your honor, we wanna lose, let us lose as quickly as we can."

And it was just hop, hop, and then up to the Supreme Court, which had invited this question.

And of course, as predicted the labor unions lost.

But I think often of what the lawyers for the labor side in the Friedrichs and the Janice Case must have thought as they walked into the Supreme Court and knew that the fix was already in on this case, that outcome was preordained.

And pretty much everybody knew it.

It's not the way courts are supposed to work.

- So there's two levels of coded language happening from the bench, one to lawyers saying, you know we wanna, we need this specific kind of case so that we can issue the ruling that we've all quietly and agreed that we're going to issue.

And then the second is, "Hi, I'm a really ambitious jurist and I'd really love to serve on the Supreme Court and I'll do your bidding."

- [Sheldon] Yeah, and I got exactly what you want me to do.

So look here, I'll tell you, I'll show you my wares.

- Those are really like serious charges, Senator.

- [Sheldon] Yeah, yeah.

This is an incredibly serious matter.

And it just keeps popping up.

You know, it's not just the funding, it's not just the 80 cases.

It just keeps popping up.

It's the cases in which they overrule or disregard what would seem to be the conservative judicial doctrine, in order to get to the outcome.

And the real, the biggest red flag for me is fact finding.

If you've been around appellate courts for awhile, you know that appellate courts aren't supposed to find facts, district courts do that.

And certainly not the Supreme Court for Pete's sake.

And the Supreme Court has gone on surreal bouts of fact finding in areas where if you know the law, you know that that fact was absolutely essential to the case.

You pull the fact back out and the whole case falls down.

And the fact that they have found not only were questionable but were actually wrong.

And in the case of Citizens United with provably wrong based on the way things played out after the case, indisputably not, this is not a question of opinion.

This is a question of a fact.

And so why would they, why would they do that?

They're not supposed to do fact finding at all.

Why would you do wrong fact finding?

And once you did wrong fact finding and the behavior of the world proved that that had been wrong fact finding, why wouldn't you want to go back and clean it up?

So, you know, all of it implies what we've seen in regulatory agencies in the past, which is that they get their minds aligned with a particular interest and the way they do their decisions tends to advantage the interest.

- I suspect that a number of people listening and I'm gonna, I suspect I'm gonna get an email saying I can't believe you let Sheldon Whitehouse say all of these horrible things about the Republican Party.

And I want to invite our listeners if you believe that this isn't true, if you believe that that there's another side to all of this that you want to hear the other side, please do send us suggestions of speakers, people who can talk about the rightness of this process.

This is a sort of a bigger question that we've received from one of our listeners that kind of pulls back a little bit on the broader stakes here.

How can the state department admonish bad actors around the world on subjects of corruption and non-transparency when our Supreme Court apparently supports the same in our own government?

- [Sheldon] Yeah, we have that problem.

One of the prices that we pay for allowing these enormous rivers of anonymous "dark money" to flow into our politics to have immense effect in our politics.

I mean, we went from being bipartisan on climate change to having this be a partisan issue you couldn't touch, in a month, after Citizens United was decided and the fossil fuel industry genned up its new weaponry.

So it's really visible to the world what has happened.

And we were long, the beacon, we were the city on a hill.

We were gonna lead the world to new and better governance by the power of our example.

And now we've got this wretched example of a Congress that is just driven with special interest influence and anonymous money in the tens of millions of dollars.

And yeah, there's a real price for that in terms of the American brand overseas.

And in terms of our ability to defend rule of law around the world, as my friend, Ed Markey is often saying about different issues.

You can't preach temperance from a bar stool and we're now on a "dark money" bar stool and we need to clean it up.

- You know, there's another question here in Ohio there's legislation pending which would add partisan designation to judicial races.

As you know, we elect judges and our Supreme Court justices in the state of Ohio.

While the federal appointments are appointed versus elected the issue is opened up, open the issue of whether judges are impartial while running in partisan primaries and/or if they view legal cases through partisan or ideological lenses.

Because of the growing influence of partisan in organizations, what do you think about the future of our public trust in the rule of law in this country at all levels?

- [Sheldon] Well, I think we've got a public trust problem.

The public doesn't have confidence in its government any longer.

And if you look at academic studies that look at Congress's responsiveness to the public, we're not responsive to the public.

They can prove it statistically, we're responsive to big interests.

It's the most powerful feeling in the American electorate right now.

And so we really have to clean it up and we're gonna try to clean it up in Congress, but, you know, once the "dark money" interests get a good enough foothold they're gonna fight back really hard.

So it's not a walk in the park to fix it.

The Supreme Court could fix itself on its own.

And I hope that part of the troublemaking that I've caused will cause them to rethink a little bit what their behavior means for the reputation of the court that they serve and presumably dedicate their lives to and care so much about.

I don't just say this from the tree tops, I filed like 15 briefs in the Supreme Court telling them right to their faces what my concerns are.

So I think we have a collective responsibility in the United States of America to try to go back to a more honest, orderly, and transparent way of conducting ourselves in government and in courts.

- There's a couple of questions here about potential remedies.

Is there any possibility that Citizens United will be overturned or that the legislature could address the challenges presented there?

How would that occur exactly?

- [Sheldon] Well, the obvious thing that the court could have done in one of several cases that have come to it after Citizens United was to say, "Hey, look, in Citizens United, we let the anonymous, the unlimited money into elections, because we said it would not be anonymous.

That there'd be accountability.

That was an eight to one part of the decision.

So now a case comes up that says, hey, we have trouble here.

The money is not only unlimited, it's also anonymous, help us fix it.

And the Supreme Court has now declined to hear the case, not interested.

So they could fix it on their own by imposing the transparency requirement that they themselves actually said was essential to their holding in Citizens United.

It's not reversing citizens United, it's honoring its own terms.

And then also we in the Congress could do it by passing disclosure bills.

And I'm the lead on the big Disclose Act that is before Congress right now.

The problem is that if you're in the "dark money" influenced business, your number one priority is to make sure that you protect your "dark money" influence.

That's the weapon that allows you to influence everything else.

So that is the keys to the kingdom for you.

And that means that they will fight like Panthers desperately to protect their ability to spend "dark money".

And that is why the Disclose Act has always failed and been filibustered.

- Another question on a similar line, trade associations who file Amicus briefs can only do so if leave is granted by the court, why not require an appellate rule that requires financial disclosures and sources of funding in order to be permitted to file a brief?

- [Sheldon] Yep, we are.

There's actually a rule, a Supreme Court rule 37, 6 that says you have to disclose anyone who helped to fund the, I think the word is publication of your brief.

And the way the Supreme Court has read that it basically or I shouldn't say that the way the Supreme Court has allowed parties to read that is that all they have to do is disclose who paid for the printing, the publication, and the service of their brief.

So if you're a front group sitting around whose job is to be a front group and take money from people to do things in their name, and somebody comes along and gives you a million dollars and says, go file that brief, they file the brief in their own name, and they say, "We paid for the printing.

We paid for the publication.

We paid for the service on the other parties.

We have nothing to disclose."

So there actually is a rule, but it's honored only in the breach by this ridiculous reading of it that the Supreme Court has allowed to persist.

- What about move to amend?

- [Sheldon] How so?

- Well, this question just asked, would you comment on the move to amend grassroots initiative to end corporate personhood and money as free speech?

- [Sheldon] If you wanna go back at those kind of constitutional elements, with the Supreme Court said were constitutional elements of the Citizens United decision, unfortunately, you've got to amend the constitution now and that is an arduous, arduous process and a long one and one that very rarely succeeds.

So I think we're better off focusing on the world of the possible, which is trying to convince the Supreme Court that it's in its own interest to clean up the mess it made with Citizens United and to work legislatively to do what we can within Citizens United to get transparency.

And my view is that some of these groups are so mischievous and so up to no good, and they've created this, what one writer called a tsunami of slime in our politics, that if they had to identify themselves, a lot of them would just go way, because what they're doing is so awful that it would really hurt their brand if they couldn't hide.

So I think that the disclosure piece not only cleans up the anonymity problem, but it cleans up a good deal of the unlimited money problem by forcing everybody out into the open to take responsibility in a democracy for their own political acts.

- Senator, another one of our audience members is asking if you could share your takeaways from the Amy Coney Barrett questioning.

- [Sheldon] I've lived through a lot of these now, and we get more time with the Supreme Court justices than we do with circuit court and district court judges.

But at the end of the day, it's really not much of an opportunity because you do have limited time.

The nominee knows you have limited time.

They go through really rigorous vetting and mock hearings and they learn all sorts of devices for stalling and delaying and what the easy out answers are.

So it's much more of a fixed set piece exchange than a real sincere conversation most of the time.

And particularly if there's nothing in somebody's background to, you know, draw out that wasn't apparent beforehand, and there usually isn't.

It's a very frustrating and unrewarding process.

And so, it being frustrating, I think is a large part of it, but there are things that you can draw out.

I focused on a phrase that Judge Barrett used a lot, which is cases winding their way up to the court and checked with her I said, by that, this is significant to you.

This is part of the separation of powers process, that filters cases and it's, this isn't just like delay for delay's sake.

And she said, "Yeah, no, this is part of what, you know, helps us be a good Supreme Court.

And so in recent briefs, I've contrasted what has been happening with this hopscotch, "Quick I wanna lose as fast as I can, your honor, quick I wanna lose as fast as I can your honor."

Now, I'm in the Supreme Court.

Give me the answer, I want your honor.

That process which I think is really degrading to the system of justice and really degrading to the Supreme Court.

And because she had said that before, you know, it gave me an additional platform for argument.

- So there are, to your mind, as frustrating as it is, great, useful things that come out of it?

- [Sheldon] There can be very useful things that come out of it.

- Senator Sheldon Whitehouse is a Senator from, a Democratic Senator from the state of Rhode Island.

And he serves on the committee on the judiciary and a number of other committees as well.

Senator we're just about out of time.

I thank you very much for taking time to be with us.

And perhaps we can have you back to talk about climate change at some point.

I know that's another issue very important to the state of Rhode Island.

- [Sheldon] I would be glad to, thank you for allowing me to be part of your storied history at The City Club of Cleveland.

- Well, next time we hope we'll have you back in Cleveland itself.

Senator Sheldon Whitehouse, ladies and gentlemen.

Thank you so much, sir.

- [Sheldon] Thank you, Dan, much appreciated.

- And thank you for joining us for our Friday forum.

It is the Annual Craig Spangenberg Memorial forum, created to celebrate Mr. Spangenberg's commitment to the First Amendment rights of all citizens.

He was nationally known as a trial lawyer and he founded and served as the first president of the International Society of Barristers.

He was also past president of The City Club of Cleveland and he remained a member for more than 50 years.

We're grateful to the law firm of Spangenberg, Shibley & Liber for their partnership.

Thanks also to members, donors, sponsors and others who support our mission to create conversations of consequence that help democracy thrive.

We have a few of those coming up next week on Tuesday.

We'll talk with local and national experts about how the 2020 census results and recently passed legislation will affect Ohio's redistricting, and Thursday, we'll present a Pride Month forum about LGBTQ+ representation in arts, culture, literature, and the media.

Before we go, we need to say a very big and important goodbye.

Our colleague, Stephanie Jansky, director of programming is leaving The City Club.

Today's her last day.

And I have to say at The City Club, the work you see and hear happens because of people working very hard behind the scenes.

And Stephanie is one of those people.

Over the last seven years, we've presented more than 850 forums together.

And if you've enjoyed any of them or felt like they helped you understand the community a little better or made your community a little bit stronger, a little bit better informed, that is because Stephanie Jansky worked so hard on it.

Stephanie, you have been an amazing colleague and I thank you for sharing your talents with us in this work we do for the community and for democracy.

I'm Dan Moulthrop, our forum is now adjourned.

Have a great weekend.

(gong rings) - [Announcer] For information on upcoming speakers or for podcasts of The City Club, go to cityclub.org.

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