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Sheldon Whitehouse

U.S. Senator (D-RI) and Judiciary Committee Member

Sheldon Whitehouse, a Democrat, is a United States senator from Rhode Island. He is a member of the Senate Judiciary Committee and voted to reject the Supreme Court nomination of Brett Kavanaugh.

This is a transcript of an interview with FRONTLINE’s Jim Gilmore conducted on February 6, 2019. It has been edited in parts for clarity and length.

This interview appears in:

Supreme Revenge

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The Death of Justice Scalia and Mitch McConnell’s Gamble

So [Antonin] Scalia’s death, [Mitch] McConnell’s statement, your thoughts.

My first thought is, I would love to know how that got organized.It’s hard to know whether that’s something that Leader McConnell came up with just in the minutes after the news, or if the interests that seek to capture our courts had basically done a pre-drill just in case something should happen.I don’t know what the back story is, but I bet it’s a good one.The effect of it, of course, was to take away the president’s authority under the Constitution to make an appointment to the court and to postpone it into a next presidency, where even though it wasn’t a strong chance, there was at least some chance of a Republican president.

And I think it’s an indication, particularly when you consider how remote the chance then was of there being a Republican president, that this is a really, really important issue for some very, very big interests, and it’s an issue for which the Republican Party is willing to take an enormous amount of pain and criticism through that whole period, just on the off chance that a Republican president gets elected and that they can make that appointment.

And for McConnell, who has been looking at judiciary for decades and sort of being very intent about the importance of it, what does it mean for him?Why does he do it?And how important is this for the Republicans?

I see Leader McConnell as the intermediary between the small constellation of very big Republican donor interests and his Republican caucus.So for him, because this issue was so important to those big-donor interests, this is important to him.This is the reason for supporting Republicans in the Senate.This was the reason for supporting his leadership.This is the reason for being engaged.They are desperate to have a court that they can control.

Mitch McConnell’s Long Game on the Courts

Talk to us a little bit about McConnell during the Obama years, the tactics that he used, the changing of the norms, the changing of the laws, basically, of how the Senate operates for pushing nominations, for preventing nominations, for delaying, delaying, delaying, for everything that he did.What was going on during those years?By the time that Trump comes in, there's like dozens and dozens and dozens of open spots.

Well, Leader McConnell is a very crafty planner.And he saw right away, after President Obama was elected, that President Obama’s popularity and his appeal to bipartisanship could be turned into weapons against him in the sense that, if your opponent is much more popular than you, and Obama was about 80 percent compared to Republicans in Congress, and you can basically burn down both houses, you will have done a lot more damage to your opponent than you will have sustained yourself.

So that was a very clever, clever strategy.And to realize that a complete strategy of non-cooperation made the bipartisan pledge an obstacle, a problem for President Obama, because if he pushed back against the absolutely rigid partisanship of the Republicans, he could be accused of partisanship, so they used his bipartisan pledge in that sense against him.And for a very long period, the Obama administration was quite disabled by that.It took a long time until they realized, “Look, this is hopeless; we really have to fight back against this,” and engaged in a different and more confrontational way.

And then some progress began to be made.But Mitch made two very strong, clever calculations: one, use Obama’s popularity against him; and two, use Obama’s bipartisanship pledges against him.

And the effects on this long term, on the courts, is what?

Well, what the Republicans would like to do, and what the big-donor interests behind the Republicans would like to see, is that when there is a Democratic president, the judicial nomination process gets slowed down as much as possible and as few judges as possible get through, particularly in the more policy-making circuit courts, and then, when a Republican president comes in, they can open the spigots and drive as many judges through as they possibly can, to fill as many seats, including ones that were preserved by Republican obstruction for years, in some cases, through the Obama years.

It’s also an understanding of the importance of having majorities, of having conservative judges for decades in place on these courts.I mean, it’s a pretty smart, savvy kind of politics that he’s playing.

Well, there are two things about controlling the courts that are significant.The first, obviously, is that they're there for a long, long time.You're not having to deal with a House that turns over every two years.So you're buying a much, much longer period of control.The second thing is that, because a court is not responsive to popular opinion, big special interests can get things done through courts that the legislature won't do, even when Republicans control it.So a court under a special-interest control is not only a long-term prize, it’s also a means for accomplishing things that the public doesn’t want, that a legislature simply can't do, even when they control it.

The Nomination of Brett Kavanaugh

Let’s talk about the [Brett] Kavanaugh hearings and the nomination.So it’s the [Anthony] Kennedy seat that comes up when Kennedy retires.This will make it basically a conservative court.How is this sort of, to some extent, the dream McConnell has had for quite a while, that now this court will be controlled by conservatives?

Well, I would say that every nomination that preserves 5-4 Republican control of the court is absolutely critical to the interests that are behind Mitch McConnell, and the fact that, for some of them, some of the positions that Kennedy had taken on gay marriage and so forth were potentially going to be different under a Judge Kavanaugh, that they’d have a more conservative, traditionalist streak, added extra benefit.But the core of this was less, I think, the fact that Kennedy could be a swing vote on a few issues than it was the fact that you absolutely had to protect the five so-called conservative justices.

And Kavanaugh—where does Kavanaugh fit in this?Why Kavanaugh?Your concerns in the very beginning [are] because of his record, because of the change of balance of power, because of the fear that he would vote in a partisan fashion?Kavanaugh comes along.What are you thinking?

Well, Kavanaugh has quite good judicial chops.He’s been on the D.C. Circuit for a while.He has tried to ingratiate himself with a number of political communities.He’s been very, very active with the Federalist Society.He’s clearly ambitious for more.So he meets the quality requirement of experience as an appellate judge and being a decent human being.And at the same time there's this other persona, which is the very, very right-wing signaling that he’s been doing from the D.C. Circuit in his decisions in his attention to the Federalist Society and the way in which he’s gone about really auditioning for a role on the Supreme Court.

So the quality piece gets him through the risk that this all blows up because he’s a defective, underqualified nominee, and the big interests can take a look at what he has signaled as to how he’s going to come down on what matters to them.And he’s sending all the right political signals.So in some respects he was the ideal candidate, met the quality test.More importantly, met the partisanship and predictability tests.So when he began to blow up because of the previous history he had, there was real panic.

Donald Trump’s Nominee List

And we’ll get there in two seconds.But your view on the fact that he ends up on the list, the list done by the Federalist Society, what's the danger there?Is the problem with transparency?How do you view the idea that this president has been handed a list that he has been using to pick off of, it was very important to him in getting elected, but now is something that he’s depending upon and is from a special-interest group like the Federalist Society?

Well, there are two problems.The first is the problem that there is a list at all, and a list that is run by a special-interest group whose funding is, by and large, pretty dark.I mean, you know some things about the Federalist Society funding, but you don’t know much.And when you allow big special interests to financially control an entity that is then given the responsibility of maintaining a list of who might become a judge, you have effectively ceded control over that process to those special interests behind that organization.So that’s a problem.

The second problem, which is specific to Kavanaugh, is how did he get on that list?He was not on the list originally.Something had to happen so that he could campaign his way up to the top of that list.There's no record of that.He wouldn’t answer questions about that.The whole area is just shrouded in darkness.But you have a very ambitious, very partisan judge, who has experience of the judicial nomination’s process from having run it in a Republican White House, and you’ve got his friend Leonard Leo running the list.And suddenly a judge who’s not even on the list goes to the top of the list and becomes the nominee?Who knows what conversations took place, what commitments were made, what winking or signals were sent to make that move?

So bad enough that there's a list.Much worse that an individual judicial candidate is working his connections to get to the top of that list.

The Initial Kavanaugh Hearings

The first day of the hearings, it was pretty extraordinary in the havoc of the day and of the debate that was going on, and the demonstrators.How does it sort of help define just how partisan things had become, how these hearings have a really difficult task at hand, and it’s almost an impossible task?Take us to that first day and how you viewed it.

The first day of the first Senate hearings?

The hearings for Kavanaugh, right, first hearings.And then we’ll go into the [Christine] Blasey Ford in a little bit.

Well, the nomination hearings have become extremely scripted and virtually useless.They're a vehicle for bringing forth information that you can get from a judge’s previous record.But in this case, huge tranches of this nominee’s record had been carved out so that we could never see it.So we were disabled in the function of using the hearings as a means for bringing up the record of a nominee.

In terms of direct questioning, you used to be able to have senators go on with a nominee for half an hour, 45 minutes, as long as they want.Now we get locked into these short, scripted time limits, and the candidates are trained how to burn that time as much as possible with long-winded answers.And, you know, we in prosecution land would have called [it] the “God Bless America” speech.So they're trained how to make us as ineffective as possible in the use of our time.

And ultimately, it’s really hard to get anything very significant accomplished in these hearings as a result.So there's a fair amount of frustration, I think, about all of that.And then, unfortunately behind that came kind of a circus atmosphere that I think was actually advantageous to the nominee, in that the circus atmosphere signaled to Republicans, “This is tribal; this is part of your tribe; you’ve got to stick with this guy,” as opposed to looking more at the qualifications and the liabilities of the candidate.

Fascinating.A lot of people have said these nominations have become almost political campaigns in that there's murder boards, and there's ads, and there's money coming in, black money coming in.And what does it say about the situation where we are right now, that this is how we are finding nominees to eventually be brought onto these unbelievably important roles in our courts?

Right now we are in a very dangerous situation in which the process by which nominees are selected is funded by unknown interests.The process by which their confirmation is fought for in the public, media is funded by unknown interests.The senators who are voting on this are often funded by those same interests.And then, once the individual gets onto the court, they are presented with amicus briefs that are also funded by those same interests.

So there's a sweep in which the same special interests could very well be behind the selection, the confirmation argument, the confirmation vote, and later on, the amicus briefs that are presented to those judges.And unfortunately, what we’ve seen at the Supreme Court is then a whole array of decisions that have been enormously rewarding for those big special interests.So it’s become a loop.Pick the judge, confirm the judge, tell the judge what to do through the amicus brief, and then take the reward of a decision that has gone your way.

Allegations by Christine Blasey Ford

…When Dr. Blasey Ford comes forward, what is your sort of view when this happens?When do you hear?And how does that complicate an already complicated nomination process?

Well, we found out quite late that this situation had emerged.And unfortunately, that meant that it wasn’t presented to the FBI team that was doing the background at a timely moment.So that did create considerable problems later on in the hearing process, because it became the counterargument that this was a nefarious Democratic trick rather than a problem of the nominee’s.And that was difficult.It made for a very short notice, and it did create that liability.

And her testimony, how was it perceived by the senators?How did it affect sort of the process?

Yeah, no.Her testimony was fabulous.She was very credible.She was very polite and just looked dead honest.The way in which she testified synced very clearly with the way that victims of these kind of offenses remember things and talk about them, so it was really tough by the end of her testimony.And I think our Republican colleagues realized, at that point, that trying to deal with her in the way that they had hoped, which is through this intermediary prosecutor, really wasn’t going to work, and what they had to do was revert to a basically primitive call to tribalism and fury on our side for having had the temerity to do this, and a gathering of the clan and a waving of the bloody shirt, and “We’re all going to carry this through together, damn the consequences.”So the mood shifted very rapidly when, I think, our colleagues saw that that was their way to hang onto this prize, so important to their big-donor interests.

Brett Kavanaugh Responds to the Allegations

And the Kavanaugh testimony?

That was one of the provokers of the turn to tribalism.The insulting of the Democrats on the committee, the imaginary Clinton conspiracy that was cooked up, the tone of voice, all of it was conducive to creating an emotional tribalism.Sen. [Lindsey] Graham (R-S.C.) did an excellent job of then amplifying that.And from then on it was, you know, shirts and skins, and nobody was paying much attention to him any longer.The focus wasn’t “What did you do?What did you know?Why aren’t we hearing from other witnesses?”It was tribalism.

And Graham’s accusations toward the Democrats that this was all a political move, and you were destroying both Kavanaugh as well as Blasey Ford—I mean, how did the Democratic senators take that?

There was obviously no truth to that.She had come forward in the ordinary course, based on her actual experience, corroborated by multiple prior consistent statements, and subjected to professional cross-examination by the Republicans came through with flying colors as a very, very credible, convincing, truthful witness.So she did her job, and she did it well.She was, I think, a convincing real victim.I believed her.Still believe her.So they had to change the narrative.And basically, by raising the tone of their voice and raising the emotional pitch, they moved the narrative away from her and into this whole question of, you know, Democrats up to no good.

Public Perception of the Courts

The overall—how is judicial impartiality—how are the courts seen?Justice [John] Roberts came out afterward saying he was worried that the public is starting to view the Supreme Court as just one more political institution in Washington.How do you view what all this—

The Supreme Court is one more political institution in Washington, and Chief Justice Roberts has made it so.So it’s a little bit rich for him to be complaining about that.Now, what the Republicans on the court would like to do is to make it a political institution in Washington while avoiding have the public catch on that it’s a political institution in Washington, because once people understand that it’s a political institution, there will be new levels of accountability.And at the moment, I think they're in kind of a happy situation, where most people haven't caught on to what they're up to, and they're getting away with murder for the big Republican donor interests.

So just talk about sort of what the Supreme Court is supposed to be, what the courts are supposed to represent, the impartiality, the nonpartisanship.Where are we now, and what are we losing from your expectations, or your thoughts on it?

The basic expectations of the founders, when they set up our courts and our jury system, was that the courts and the jury would be the last redoubt of freedom when big interests controlled the executive branch and the legislative branch.These were very experienced politicians who set up our country.They knew full well what mischief the executive branch and the legislative branch were capable of when in the hands of very, very powerful interests, commercial or otherwise.And they specifically designed courts to be the escape hatch, if you will, from that.

So what are courts supposed to do?First thing they're supposed to do is no fear or favor.People are equal before the law.Second, no ulterior motive.Just decide the case before you.And third, no political overlay.No long-term goal you're trying to achieve.This is not part of a political targeting.And I think at this point, the court is failing at all of those goals.And this record that we have seen of 5-4 decisions with Roberts leading all five Republicans to violate what were considered traditional judicial doctrines, conservative traditional doctrines, and deliver wins for, instead, conservative special interests, I think is a story that is not sufficiently told.But it’s the state of the court right now, I'm sorry to say.

Mike?

Just one question. What was it like to be on the Judiciary Committee during the Trump years, and how different was it than the Obama years as far as the speed of nominees at all levels in the judiciary? What did you see? How different was it?

The pace of confirmation of judges, particularly circuit judges, picked up a lot from the Obama years to the Trump years.They were determined to move people through.And some of the traditional barriers, like complete background investigations or the blue-slip process that allows the senators from the state to whom that seat belongs to have a say in who the nominee is, all that traditional infrastructure got broken down so that they could speed up the pace and move people through.

We also saw people who would not ordinarily be suited for judicial office brought forward as nominees, people who were intemperate, people who were extreme, people who were unprepared.So it was not a great crop of judges that were put through as the pace was picked up.

It seems to be an understanding by the Republicans of the importance of the judiciary in a way that maybe the Democrats didn’t quite understand, or Obama didn’t quite understand?

The history here is a long one.Back through Brown v. Board of Education, Roe v. Wade, Miranda v. Arizona, the court has made decisions that offended very conservative people, and so it became an article of faith on the conservative side to push back against activist judges.Big-donor interests realized that that was a very good thing to pick up on and stepped in behind that, and used that popular energy on the conservative side.So now you had both the conservative base and the big funders both putting judges as a real priority, and Democrats kind of slept-walked through that.

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