Special: Supreme Court Confirmation Hearings & Mitch McConnell

Oct. 16, 2020 AT 9:41 p.m. EDT

This week, the Senate held confirmation hearings for Supreme Court nominee Amy Coney Barrett. On our Extra, guest Jane Mayer of The New Yorker discussed how the hearings are part of a years-long effort spearheaded by Senate Majority Leader Mitch McConnell and donors to conservative causes to reshape the federal judiciary.

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Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

ROBERT COSTA: Welcome to the Washington Week Extra. I’m Robert Costa.

Tonight we shine our spotlight on that critical issue, dark money in American politics, and on Senate Majority Leader Mitch McConnell, perhaps the GOP’s most influential voice on campaign finance. And joining us is the expert on all of it: Jane Mayer, chief Washington correspondent for The New Yorker and author of the 2016 book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right. Jane, welcome.

JANE MAYER: Thanks. So great to be with you.

MR. COSTA: Jane, I’d like to start with an article you wrote just a few weeks ago after the death of Justice Ruth Bader Ginsburg about McConnell and his push to fill the Supreme Court vacancy. You describe him as balancing his desire to appoint conservative judges with his goal of keeping the Senate majority. Weeks later – and we talked a little bit about this in the show – how do you think that balancing act is going for the senator?

MS. MAYER: I think that he may very well lose his majority from the reporting that I’ve done. It’s even this close to the election hard to predict, and we’re not in the predictive business really, but a number of experts seem to think that the Democrats may come out with a majority of anywhere from 51 to 54 seats. Right now the Republicans have a majority of 53 to 47. So he may actually lose it, and I think more importantly in some ways – well, it’s not more important, but equally importantly he may be faced, if he is in the minority, with a lot of Democrats who are going to try to play just as dirty and hard as they feel they have been played with, and they may make some changes in the Senate that are going to be, you know, important. They’re talking about getting rid of the filibuster, for instance. They really want some payback against the Republicans for how they see this Amy Coney Barrett nomination having been shoved through.

MR. COSTA: That’s such a key point, Jane. I was talking to some Democrats this week, and one Democratic senator told me privately – they said, Bob, if they’re arguing on the Republican side we can do this because we can, wait till 2021, and they referenced ending the filibuster; they also referenced expanding the Supreme Court. Do you believe the appetite will be there if Vice President Biden becomes president to allow Democrats to have some payback, or do you think Biden would maybe try to say, hey, I understand your frustration but we have to focus on other things?

MS. MAYER: Well, I mean, as you know, Biden’s been very cagey about this and not very transparent about what he’s really thinking about it, but basically most recently he has said he doesn’t want to expand the Supreme Court but he will do it if he feels that he has to. Now, what does that actually mean? I think that he’s trying to use it as leverage, maybe, right now to try to see if they could, you know, do anything to fight back with Amy Coney Barrett. It looks like the Democrats are going to lose that one and she’s likely to be confirmed. I think he may find it hard to not do this. The Democratic progressive wing is increasingly powerful and it’s calling – they’re not talking about court packing, they’re talking about rebalancing the court – that’s the language they’re using. They see it as having been stolen from them and illegitimately. And they’re not just talking about the Supreme Court; they’re talking also about expanding the justices in the federal judiciary all over the country to try to rebalance, again, what they see as having been an illegitimate process and as kind of a steal, really.

MR. COSTA: Another thing, Jane, you noted in your article is that behind closed doors McConnell had been promising conservative donors that he would fill a vacancy no matter what, and the issue of money received more attention this week at the hearings. Let’s take a look.

SENATOR SHELDON WHITEHOUSE (D-RI): (From video.) My experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows.

SENATOR TED CRUZ (R-TX): (From video.) The Democratic dark-money efforts dwarf the Republican dark-money efforts, which is why, without a twinge of hypocrisy, Democratic members make this charge repeatedly.

MR. COSTA: Jane, when I heard Senator Whitehouse of Rhode Island make those comments this week, I said, boy, I’m glad we have Jane on the show because the story about the court is not just about McConnell, it’s not just about Judge Barrett; it’s about this whole galaxy of interest groups that want to be involved in the court fight. We hear about the Federalist Society to be sure, but what else should we be paying attention to in the money world when it comes to the court?

MS. MAYER: Well, if you don’t mind a little history, I mean, the back history here is that what we’re looking at in this court fight this week is – has a 50-year history, really. It goes back to 1971, where the conservative businessmen of America kind of became appalled at what they through was an anti-business atmosphere in the country. They were particularly angry about the consumer movement and Ralph Nader, and they got organized, and among the targets that they had in mind – and there’s a paper about it that was written in 1971 – is taking back the courts. They felt the courts were too lenient, and they wanted to make them more pro-business. And so they built up a number of organizations – the big conservative sort of business donors – going back 50 years. And those organizations include the Federalist Society, which has been funded by a lot of corporate money.

So if you take a look at – it’s basically a conservative legal group, a kind of a professional association, kind of a club. And you take a look at its clout today, in the Trump administration 86 percent of the judges – the federal judges who President Trump has appointed have been members of the Federalist Society. It’s really become a very powerful organization. And it works hand-in-hand with a couple other organizations that almost create kind of, like, an assembly line to take over the courts. So when you looked at Sheldon Whitehouse talking about this, he’s actually – I would recommend anybody go take a look at a report he wrote called Capturing the Courts. And it really peels back the layers of the onion so you can follow the money.

And there’s a ton of dark money in this – by which I mean, money from a handful of huge donors, millions and millions of dollars, that is – where you – it’s anonymously given. So it’s very hard to see who’s trying to buy the courts. But the money’s been going to the Federalist Society and to some allied groups, like the Judicial Crisis Network, and to the Kochs’ groups, which are also fighting to try to confirm Amy Coney Barrett. And we’re talking about many, many, many millions of dollars.

MR. COSTA: Do the Democrats have anything on their side that rivals what’s going on on the right?

MS. MAYER: They’re certainly trying to do the same thing. And it’s become an arms race in some ways. And so you’ve now got a group on the Democratic side called Demand Justice, I think, that’s trying to be something like the Judicial Crisis Network. They too are taking dark money.

And so in some ways you could say that they’re being hypocritical. But in other ways I think the argument that – certainly that Senator Whitehouse made, was that Democrats have consistently tried to reform campaign finances and get rid of these dark money groups and have more transparency, whereas Republicans have fought to try to keep all this money in the dark. And no Republican have fought that battle better or more ferociously than Mitch McConnell, the majority leader in the U.S. Senate at this point. So this is really – we’re looking at the world that McConnell helped create.

MR. COSTA: And, Jane, finally, I just have one quick question before we go. You covered the Koch brothers, and the tea party movement, and how money really worked behind the scenes in 2009-2010. If Vice President Biden wins the White House and you have a Democratic president in 2021, what does that wing of the Republican Party do? Is there another tea party movement, or has the party transformed so much under President Trump with its nationalism and its populism that maybe that wing that you’ve covered so well doesn’t have the same influence it did a decade ago?

MS. MAYER: Well, you know, the Kochs were not fans of President Trump in the beginning. But by the time that his administration was really set up what was interesting was they – the head of their own organization, Americans for Prosperity, said there was no daylight between them and President Trump to speak of. I mean, they differ on a couple issues, but they were pretty happy with Trump’s tax positions and with his environmental positions. So they’re still quite powerful.

They still wield a lot of clout, that is the Koch organizations. There’s only one Koch brother of the two that were very involved in politics who’s still alive. That’s Charles Koch. And other donors are coming along. So right now, you know, one of the ones who’s been very important is Bernard Marcus, one of the founders of Home Depot. He’s been putting a lot of money into sort of Trumpism kind of politics. And there are plenty of others as well.

MR. COSTA: That’s a great point. A White House official once told me that when Bernie Marcus calls or visits, President Trump pays attention. And he doesn’t pay attention to everybody that comes by, that’s for sure.

Jane, really appreciate you coming to this Washington Week Extra and for this conversation.

MS. MAYER: Thanks so much for having me. It was my pleasure.

MR. COSTA: And we’ll have you back soon on Washington Week as this campaign comes to a close. But many thanks to all of you for joining us. Make sure to sign up for our newsletter on our website. We give you insight every week into what’s happening in the political world. You’ll also get a weekly note from me. Really appreciate it if you sign up for that. But for now appreciate you joining us for this. I’m Robert Costa. And we’ll see you next time.

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