As a subscriber to Charlie Pierce at Esquire, I get an email every weekend with his take on some particular subject. The latest one is a must-read: Sheldon Whitehouse: “It Sure Looks Rank and Rancid” The headlines have been all about striking down the Affordable Care Act, stealing the election for Trump, overturning Roe v. Wade and same sex marriage, destroying the voting rights act — but it goes much deeper.
Whitehouse took time while Democrats were boycotting the committee vote on Barrett’s nomination to do an interview with Pierce. For those who can’t get past the paywall, I’ll summarize the highlights.
Pierce recapped the presentation Whitehouse gave during the hearings on Barrett’s nomination. It’s worth reading just for that part alone.
…The most memorable of these episodes was the one produced by Senator Sheldon Whitehouse, Democrat of Rhode Island. He spent his allotted time in a detailed description of the long march of the conservative movement to capture the federal judiciary, which will become virtually complete when Barrett takes her seat at the end of October. There will be a decades-long conservative majority on the Supreme Court. The lower federal courts are salted thickly with larval Scalias produced by the well-funded apparatus of the conservative movement, the money laundered through groups like the Federalist Society and the Judicial Crisis Network.
Whitehouse brought all the receipts and, with detailed charts, showed how this smooth-running machine operated in real life in order to produce the likes of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. (Posterity is going to choke eternally on the fact that this particular president* got to appoint three members of the Supreme Court.) He further showed these same operations have cherry-picked cases and plaintiffs to attack previous precedents with which they disagree. The “captive courts” have been one of Whitehouse’s areas of interest for quite some time. He raised his first ruckus on the issue by pointing out that, in 72 cases involving corporate power and influence, the then-5-4 conservative majority on the Supreme Court had ruled for the money power in every one of those cases. Often, the disputes over judicial nominations rise or fall on social issues. Whitehouse’s warning takes in those cases, but also concentrates fully on how we seem to be sliding back into a Gilded Age federal judiciary.
Whitehouse and Pierce discuss this in more detail, both of them decrying that Democrats have been oblivious to the decades-long effort by the GOP to capture the judiciary — “the long march”. The Lochner era gets a shout-out. What goes around comes around.
One of the things Whitehouse touches on is, who wrote the checks that funded the long march? Who is behind the Federalist Society, Judicial Crisis Network, and such? Did the FBI really have a substantial tip line on Kavanaugh’s history? There are lots of things that could stand some sunlight.
(Digby touches on this with a short piece on Leonard Leo, one of the key players in this coup from the shadows.)
One of the really chilling aspects of this interview is the system that has been developed to use the courts to funnel cases up to the Supreme Court for rulings desired by dark money and astro turf groups. There are entities that will orchestrate a challenge by finding a case that looks promising, funding it, and fast-tracking it up through the courts for the final ruling by the Supremes that locks down what they want. . They pick judges who can be counted on to pass it through.
But since Citizens United in the decade, we’ve picked up Gorsuch, we’ve picked up Kavanaugh, we’re now picking up Barrett. We’re now at four potentially for dark money. And who knows where Alito and Roberts might go, with four who are ready to proceed. What I have asked groups, like specifically the US Chamber of Commerce, and Marathon Petroleum—two of the worst climate-denier, climate-obstructor people in America—what I have asked them to disclose something relating to dark money, like who they funded or who they got money from. They have done what I call “plead the First.” They have respectfully declined to answer my questions on grounds that they have a First Amendment right under the Constitution and association clauses to decline to disclose who’s funding them.
So clearly the dark money operation is now starting to put a stake in the ground to say our dark money is constitutionally protected. And they wouldn’t be saying that if they weren’t trying to work that new constitutional right into the court that they’re trying to manipulate. And just imagine if dark money could use the court, which then said that dark money was constitutionally protected.
The system has gotten so blatant, conservative judges in the lower courts are now auditioning for elevation to higher levels. Barrett was only in her previous job for three years; here’s how it works:
CP: I mean how long was Barrett in her previous job?
SW: Three years maybe?
CP: I was going to say, not five years I don’t think.
SW: Yeah. Kavanaugh wasn’t there very long either. I’ll tell you another story. I was speaking to a circuit judge a few weeks back and talking about the state of the judiciary, the circuit judge lamented what he saw in his colleagues on circuit courts around the country, that he described as auditioning. That they weren’t just looking at the case in front of them, trying to render justice to the parties and make sure that the law was coherent and properly followed. They were auditioning to whom? Well obviously, to the big-money groups who were behind the judicial selection process, and nobody was a better auditioner than Brett Kavanaugh.
CP: Is that true?
SW: He went to like 50 Federalist Society events as a speaker, and he kept dropping in footnotes and concurrences of defense on the key issues that matter to these people, like dark money and unlimited money and so forth.
Whitehouse argues — not without reason — that we really need to do our homework on this and drag it out into the light for everyone to see. IF Joe Biden’s commission is going to be more than a ‘bipartisan’ charade, that would be the one really big thing it should do.
It’s really worth signing up for Pierce. This interview ought to be front-page material across the country.
Here’s my take on some of what we have to look forward to for years to come if we don’t reverse the GOP’s and dark money’s long march to make the judiciary their tool.
- A steady stream of cases decided in a way that will deregulate businesses and further diminish the power of labor.
- Decisions that will make it harder to reverse the election-rigging, gerrymandering, and voter suppression by the GOP to preserve their minority power.
- A roll-back of legislation and legal decisions on social justice issues, in order to appeal to the Christianist-Nationalist-Racist core of the GOP.
- A Supreme Court that will be used to overturn or weaken any legislation by a Democratic Congress and President with rulings that find it “unconstitutional”.
- The de facto rule of ‘justice’ for the deepest pockets.
There’s been discussion about expanding the Supreme Court to rebalance it away from its extreme lurch rightward, and maybe limiting terms for the court to 18 years so that turnover becomes less a matter of chance or a magnet for political maneuvering. (It still will be, but at least we’ll see it coming.)
There’s also a strong case for expanding the Federal Judiciary. For some time the case load on the courts has been growing leading to delays. Justice delayed is justice denied — and expanding the courts with appointees who aren’t hand-picked tools of the Federalist Society would be one way to counter the activist conservative hacks now rigging the courts.
Republicans will of course scream bloody murder about any attempts to pry the courts out of their hands. The proper response is to laugh in their faces. Their corruption and dysfunction in Washington is something we can use as a rationale for judicial reform — one more element in a larger series of reforms.
Remember that big structural change we were talking about way back when? They’ve been trying to make it into a giant boogeyman. Let’s make it their personal nightmare. It’s time to substitute Disaster Progressivism for Disaster Capitalism — because Big Money is actually killing us, between the pandemic and the climate crisis.
Between the pandemic, the economy, and climate change, we can make a strong case that same-old politics and moderation isn’t going to cut it. Incrementalism isn’t going to do it. It’s not enough to take back the White House. We have to take back — and hold Congress. But we also need to reclaim the judiciary and go on the offensive. Chance favors the bold.
Republicans have been framing the issues and setting the narratives for too long. They’ve taken us to the brink. It’s time to push them over the edge and turn things around. Nothing less will do, and we had better be ready to embark on our own long march.
Never give up, never surrender. Forward momentum.
Update: What Digby sez. Read it.