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Wed Oct 14, 2020, 11:58 AM

The Sheldon Whitehouse Juggernaut Day 2 -- Full Transcript

One for the books.

Thank you, Chairman, Judge Barrett. You can take a bit of a breather on your return to the committee, because what I want to do is go through with the people who are watching this now the conversation that you and I had when we spoke on the telephone. You were kind enough to hear out a presentation that I made, and I intend to ask some questions in that area, but it doesnít make sense to ask questions if I havenít laid the predicate, particularly for viewers who are watching this.

So, I guess the reason that I want to do this is because people who are watching this need to understand that this small hearing room and the little TV box that you are looking at, the little screen that you are looking at, are a little bit like the frame of a puppet theater, and if you only look at whatís going on in the puppet theater youíre not going to understand the whole story. You are not going to understand the real dynamic what is going on here, and you are certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.

So first, let me say, why do I think outside forces are here pulling strings? Well, part of it is behavior. We have colleagues here who supported you, this nominee, before there was a nominee. Thatís a little unusual.

We have the political ram job that we have already complained of driving this process through at breakneck speed in the middle of a pandemic while the Senate is closed for safety reasons and while we are doing nothing about the COVID epidemic around us. We have some very awkward 180s from colleagues. Mr. Chairman, you figure in this. Our leader said back when it was Garland versus Gorsuch, that of course, of course, the American people should have a say in the Courtís direction. Of course, of course, said Mitch McConnell. Thatís long gone.

Senator Grassley said the American people shouldnít be denied a voice. Thatís long gone. Senator Cruz said you donít do this in an election year. Thatís long gone. And our chairman made his famous hold-the-tape promise if an opening comes in the last year of President Trumpís term weíll wait until the next election. Thatís gone too.

So there is a lot of hard-to-explain hypocrisy and rush taking place right now, and my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows. Now people say well, what does all this matter? This is a political parlor game; itís no big deal. Well, there are some pretty high stakes here that we have been talking about here on our side, and I will tell you three of them right here.

Roe v. Wade, Obergefell, and the Obamacare cases. Hereís the GOP platform, the Republican platform, the platform of my colleagues on the other side of this aisle say that a Republican president will appoint judges who will reverse Roe, Obergefell, and the Obamacare cases. So if you have a family member with an interest in some autonomy over their body under Roe v. Wade, the ability to have a marriage, have friends marry, have a niece or a daughter or a son marry someone of their same-sex they have Ė youíve got a stake, and if you are one of the millions and millions of Americans who depend on the affordable care act youíve got a stake.

Itís not just the platform. Over and over again, letís start by talking about the Affordable Care Act. Here is the president talking about this litigation that we are gearing up this nominee for for November 10. In this litigation, he said we want to terminate healthcare under Obamacare.

That is the presidentís statement, so when we react to that, donít act as if we are making this stuff up. This is what President Trump said. This is what your party platform says: reverse the Obamacare cases. Senator after senator, including many in this committee, filed briefs saying that the Affordable Care Act should be thrown out by courts. Why is it surprising for us to be concerned that you want this nominee to do what you want nominees to do?

One quick stop on NFIB v. Sebelius, because a lot of this has to do with money. This is an interesting comparison. National Federation of Independent Businesses, until it filed the NFIB v. Sebelius case, had its biggest donation ever of $21,000. In the year that it went to work on the Affordable Care Act, ten wealthy donors gave $10 million. Somebody deserves a thank you.

So letís go on to Roe v. Wade.
Same thing. Same thing. The president has said that reversing Roe v. Wade will happen automatically because he is putting pro-life justices on the Court. Why would we not take him at his word? The Republican Party platform says it will reverse Roe. Why would we not comment on that and take you at your word?

Senators here, including Senator Hawley, have said I will vote only for nominees who acknowledge that Roe v. Wade is wrongly decided, and their pledge to vote for this nominee. Do the math. Thatís a really simple equation to run.

The Republican brief in June Medical said Roe should be overruled, so donít act surprised when we ask questions about whether thatís what you are up to here. And finally, out in the ad world that you have spared yourself wisely Judge Barrett, the Susan B Anthony Foundation is running advertisements right now saying that you are set, you are set to give our pro-life country a Court that it deserves.

Here is the ad with the voiceover. She said Ė she said. And then Roe, Obamacare cases and Obergefell, gay marriages. National Organization for Marriage, the big group that opposes same-sex marriage, says in this proceeding, all our issues are at stake. The Republican platform says it wants to reverse Obergefell. And the Republican brief filed in the case said same-sex relationships donít fall within any constitutional protection, so when we say the stakes are high on this, itís because you have said the stakes are high on this. You have said that is what you want to do. So how are people going about doing it? What is the scheme here?

Let me start with this one. In all cases, thereís big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. It is managed by a guy Ė was managed by Ė a guy named Leonard Leo, and it has taken over the selection of judicial nominees. How do we know that to be the case? Because Trump has said so over and over again. His White House counsel said so. So we have an anonymously funded group controlling judicial selection run by this guy Leonard Leo.

Then in another lane, we have again anonymous funders running through something called the Judicial Crisis Network, which is run by Carrie Severino, and it is doing PR and campaign ads for Republican judicial nominees. It got $17 million Ė a single $17 million donation in the Garland-Gorsuch contest. It got another single $17 million donation to support Kavanaugh. Somebody, perhaps the same person, spent $35 million to influence the United States Supreme Court. Tell me thatís good.

And then over here you have a whole array of legal groups, also funded by dark money, which have a different role. They bring cases to the Court. They donít wind their way to the Court, your Honor, they get shoved to the Court to by these legal groups, many of which ask to lose below so they can get quickly to the Court to get their business done there. And then they turn up in a chorus, an orchestrated chorus of amici.

Now Iíve had a chance to have a look at this. And I was in a case, actually, as an amicus myself, the Consumer Financial Protection Board case. And in that case there were 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 amicus briefs filed, and every single one of them was a group funded by something called DonorsTrust.

DonorsTrust is a gigantic identity-scrubbing device for the right wing so that it says DonorsTrust is the donor without whoever the real donor is. It doesnít have a business. It doesnít have a business plan. It doesnít do anything. Itís just an identity scrubber.

And this group here, the Bradley Foundation, funded eight out of the 11 briefs. That seems weird to me when you have amicus briefs coming in little flotillas that are funded by the same groups but nominally separate in the court.

So I actually attached this to my brief as an appendix. Center for Media and Democracy saw it, and they did better work. They went on to say which foundations funded the brief writers in that CFPB case. Here is the Bradley Foundation for $5.6 million to those groups. Hereís DonorsTrust, $23 million to those brief writing groups. The grand total across all the donor groups was $68 million to the groups that were filing amicus briefs, pretending that they were different groups.

And itís not just in the Consumer Financial Protection Board case. You might say well that was just a one-off. Hereís Janus, the anti-labor case that had a long trail through the Court, through Friedrichs, and through Knox, and through other decisions.

And SourceWatch and ProPublica did some work about this. Hereís DonorsTrust and Donors Capital Fund. And hereís the Bradley Foundation. And they totaled giving $45 million to the 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 groups that filed amicus briefs, pretending to be different groups, and both of the lawyer groups in the case, funded by DonorsTrust, funded by Bradley Foundation in Janus.

This is happening over and over and over again, and it goes beyond just the briefs. It goes beyond just the amicus presentations. The Federalist Society Ė remember this group that is acting as the conduit and that Donald Trump has said is doing his judicial selection? Theyíre getting money from the same foundations, from DonorsTrust, $16.7 million and the Bradley Foundation, $1.37 million. From the same group of foundations total, $33 million.

So you can start to look at these, and you can start to tie them together. The legal groups, all the same funders over and over again, bringing the cases and providing us orchestrated, orchestrated chorus of amici. Then the same group also funds the Federalist Society over here. The Washington Post wrote a big expose about this, and that made Leonard Leo a little hot, a little bit like a burned agent. So he had to jump out. And he went off to go do anonymously-funded voter suppression work. Guess who jumped in to take over the selection process in this case for Judge Barrett? Carrie Severino made the hop. So once again, ties right in together.

So, Center for Media and Democracy did a little bit more research. Hereís a Bradley Foundation memo that theyíve published. The Bradley Foundation is reviewing a grant application asking for money for this orchestrated amicus process, and what do they say in the staff recommendation? It is important to orchestrate Ė their word, not mine Ė important to orchestrate high-caliber amicus efforts before the Court.

They also note that Bradley has done previous philanthropic investments in the actual underlying legal actions. So Bradley is funding Ė what do they call Ė philanthropically investing in, the underlying legal action and then giving money to groups to show up in the orchestrated chorus of amici. That canít be good.

And it goes on, because they also found this email. This email comes from an individual at the Bradley Foundation, and it asks our friend, Leonard Leo, who used to run the selection process, is there a 501(c)(3) nonprofit to which Bradley could direct any support of the two Supreme Court amicus projects other than DonorsTrust? I donít know why they wanted to avoid the reliable identity-scrubber DonorsTrust, but for some reason they did.

So Leonard Leo writes back on Federalist Society address Ė so donít tell me that it isnít Federal Society business Ė on Federalist Society, on his address, he writes back, yes, send it to the Judicial Education Project, which could take and allocate the money. And guess who works for the Judicial Education Project? Carrie Severino, who also helped select this nominee, running the Trump Federalist Society selection process.

So the connections abound. In the Washington Post article, they point out that the Judicial Crisis Networkís office is on the same hallway in the same building as the Federalist Society, and when they sent their reporter to talk to somebody at the Judicial Crisis Network, somebody from the Federalist Society came down to let them up.

This more and more looks like itís not three schemes, but itís one scheme with the same funders selecting judges, funding campaigns for the judges, and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do.

On the Judicial Crisis Network, youíve got the Leonard Leo connection, obviously. She hopped in to take over for him with the Federalist Society. Youíve got the campaigns that Iíve talked about, where they take $17 million contributions. Thatís a big check to write, $17 million, to campaign for Supreme Court nominees. No idea who that is or what they got for it. Youíve got briefs that she wrote. The Republican senators filed briefs in that NFIB case signed by Ms. Severino.

The woman who helped choose this nominee has written briefs for Republican senators attacking the ACA. Donít say the ACA is not an issue here. And by the way, the Judicial Crisis Network funds the Republican attorneys general. It funds RAGA, the Republican Attorneys General Association, and it funds individual Republican attorneys general. And guess who the plaintiffs are in the Affordable Care Act case? Republican attorneys general.

Trump joined them because he didnít want to defend, so heís in with the Republican attorneys general. But hereís the Judicial Crisis Network campaigning for Supreme Court nominees, writing briefs for senators against the Affordable Care Act, supporting the Republicans who are bringing this case, and leading the selection process for this nominee.

Here is the page off the brief. Here is where they are. Mitch McConnell, and on through the list, Senator Collins, Senator Cornyn, Senator Hoeven, Senator ó whoís still here? Marco Rubio. Itís a huge assortment of Republican senators who Carrie Severino wrote a brief for against the Affordable Care Act. So this is a, to me, pretty big deal. Iíve never seen this around any court that Iíve ever been involved with, where thereís this much dark money and this much influence being used.

Hereís how the Washington Post summed it up. This is ďa conservative activist behind-the-scenes campaign to remake the nationís courts,Ē and itís a $250 million dark money operation. $250 million is a lot of money to spend if youíre not getting anything for it. So that raises the question, what are they getting for it?

Well, I showed the slide earlier on the Affordable Care Act. And on Obergefell and on Roe v. Wade, thatís where they lost. But with another judge, that could change. Thatís where the contest is. Thatís where The Republican Party platform tells us to look at how they want judges to rule, to reverse Roe, to reverse the Obamacare cases, and to reverse Obergefell and take away gay marriage. That is their stated objective and plan. Why not take them at their word?

But there is another piece of it, and that is not whatís ahead of us, but whatís behind us. Whatís behind us is now 80 cases, Mr. Chairman, 80 cases under Chief Justice Roberts that have these characteristics. One, they were decided five to four by a bare majority. Two, the five-to-four majority was partisan in the sense that not one Democratic appointee joined the five. I refer to that group as the ďRoberts Five.Ē

It changes a little bit asĖwith Justice Scaliaís death, for instance Ė but thereís been a steady ďRoberts FiveĒ that has delivered now 80 of these decisions. And the last characteristic of them is that there is an identifiable Republican donor interest in those cases, and in every single case, that donor interest won. It was an 80 to zero, 5 to 4 partisan rout, ransacking.

And itís important to look at where those cases went, because theyíre not about big, public issues like getting rid of the Affordable Care Act, undoing Roe v. Wade, and undoing same sex marriage. Theyíre about power. And if you look at those 80 decisions, they fall into four categories over and over and over again. One, unlimited and dark money and politics. Citizens United is the famous one, but itís continued since with McCutcheon and weíve got one coming up now. Always the five for unlimited money in politics. Never protecting against money dark money in politics, despite the fact that they said it was going to be transparent.

And who wins when you allow unlimited dark money in politics? A very small group. The ones who have unlimited money to spend and a motive to spend it in politics. They win. Everybody else loses. And if youíre looking at who might be behind this, letís talk about people with unlimited money to spend and a motive to do it. Weíll see how that goes.

Next, knock the civil jury down. Whittle it down to a nub. The civil jury was in the Constitution, in the Bill of Rights, in our darn Declaration of Independence, but itís annoying to big corporate powers because you can swagger your way as a big corporate power through Congress. You can go and tell the president you put money into to elect what to do. He will put your stooges at the EPA. Itís all great until you get to the civil jury, because they have an obligation, as you know, Judge Barrett, they have an obligation under the law to be fair to both parties irrespective of their size.

You canít bribe them. Youíre not allowed to. Itís a crime to tamper with the jury. Itís standard practice to tamper with Congress. And they make decisions based on the law. If youíre used to being the boss and swaggering your way around the political side, you donít want to be answerable before a jury. And so one after another, these 80 5-to-4 decisions have knocked down, whittled away at, the civil jury, a great American institution.

Third Ė first was unlimited dark money, second was demean and diminish the civil jury Ė third is weaken regulatory agencies. A lot of this money, Iím convinced, is polluter money. The Koch Industries is a polluter, the fossil fuel industry is a polluter. Who else would be putting buckets of money into this and wanting to hide who they are behind DonorsTrust or other schemes?

And what are Ė if youíre a big polluter Ė what do you want? You want weak regulatory agencies. You want ones that you can box up and run over to Congress and get your friends to fix things for you in Congress. Over and over and over again, these decisions are targeted at regulatory agencies to weaken their independence and weaken their strength. And if youíre a big polluter, a weak regulatory agency is your idea of a good day.

And the last thing is in politics. In voting. Why on earth the Court made the decision, a factual decision Ė not something appellate courts are ordinarily supposed to make, as I understand it Judge Barrett Ė the factual decision that nobody needed to worry about minority voters in preclearance states being discriminated against, or that legislators would try to knock back their ability to vote. These five made that finding in Shelby County against bipartisan legislation from both houses of Congress, hugely passed, on no factual record.

They just decided that that was a problem that was over, on no record with no basis, because it got them to the result that we then saw. What followed? State after state after state passed voter suppression laws. One so badly targeting African Americans that two courts said it was surgically, surgically tailored to get after minority voters.

And gerrymandering, the other great control. Bulk gerrymandering where you go into a state, like the Red Map project did in Ohio and Pennsylvania, and you pack Democrats so tightly into a few districts that all the others become Republican majority districts. And in those states, you send a delegation to Congress that has a huge majority of Republican members, like 13 to 5, as I recall, in a state where the five, the party of the five actually won the popular vote.

Youíve sent a delegation to Congress that is out of step with the popular vote of that state and court after court figured out how to solve that, and the Supreme Court said nope. 5 to 4 again. Nope. Weíre not going to take an interest in that question. In all these areas where itís about political power for big special interests, and people who want to fund campaigns, and people who want to get their way through politics without actually showing up, doing it behind DonorsTrust and other groups, doing it through these schemes over and over and over again, you see the same thing.

80 decisions, Judge Barrett. 80 decisions. An 80-to-0 sweep. I donít think youíve tried cases, but some cases, the issue is bias and discrimination. And if youíre making a bias case as a trial lawyer Ė Lindsey Graham is a hell of a good trial lawyer. If he wanted to make a bias case Ė Dick Durbin is a hell of a good trial lawyer. If they wanted to make a bias case and they could show an 80-to-0 pattern, A, thatís admissible, and B, Iíd love to make that argument to the jury. Iíd be really hard pressed to be the lawyer saying no, 80-to-0 is just a bunch of flukes.

All five-four. all partisan, all this way. So something is not right around the Court. And dark money has a lot to do with it. Special interests have a lot to do with it. DonorsTrust and whoever is hiding behind DonorsTrust has a lot to do with it, and the Bradley Foundation orchestrating its amici over at the Court has a lot to do with it.

So I thank you, Judge Barrett, for listening to me now a second time and I think this gives you a chance for you and I to tee up an interesting conversation tomorrow. And I thank my colleagues for hearing me out

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Reply The Sheldon Whitehouse Juggernaut Day 2 -- Full Transcript (Original post)
ancianita Oct 14 OP
BigOleDummy Oct 14 #1
Moral Compass Oct 14 #2
ancianita Oct 14 #3
onecaliberal Oct 14 #4
Drum Oct 14 #5
dem4decades Oct 14 #6
ancianita Oct 14 #7

Response to ancianita (Original post)

Wed Oct 14, 2020, 12:41 PM

1. Damn!

Now that was powerful.

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Response to ancianita (Original post)

Wed Oct 14, 2020, 12:49 PM

2. If you read nothing else today read this.

Senator Whitehouse just did a masterful explanation of the utter and complete corruption of the judicial branch. The Roberts court is profoundly and completely corrupt. All predictions that were made about the result of the Citizens United decision have come abundantly true.

The question is now what do we, the citizens, do about it?

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Response to Moral Compass (Reply #2)

Wed Oct 14, 2020, 12:57 PM

3. Memory is deeper, command of facts deeper when one reads while listening.

The answer for the next 29 days to that and every question like it is VOTE.

Win first. Unf**k the corporate capture of this govt later.

You might take a look at something I proposed a few weeks ago. I sent it to Biden, Harris and Pelosi, just on the slim chance that someone on their teams might notice it.


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Response to ancianita (Original post)

Wed Oct 14, 2020, 12:59 PM

4. Thanks for this!

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Response to ancianita (Original post)

Wed Oct 14, 2020, 01:20 PM


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Response to ancianita (Original post)

Wed Oct 14, 2020, 02:16 PM

6. Bookmarked thanks.

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Response to dem4decades (Reply #6)

Wed Oct 14, 2020, 02:30 PM

7. Thanks for the reminder.

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