Whitehouse Offers Resolution Condemning Dark Money Effort to Pack Supreme Court
Sweeping special interest campaign to influence the federal judiciary underlies Republican hypocrisy in rushed SCOTUS push; GOP presses forward with SCOTUS packing while seeking to block COVID relief
Washington, DC – Senator Sheldon Whitehouse (D-RI), a senior member of the Senate Judiciary Committee, just offered a resolution on the Senate floor expressing a sense of the Senate that unlimited anonymous spending to influence our judiciary undermines the integrity of our judicial system and damages Americans’ confidence that all people receive equal justice under law. Whitehouse offered the resolution as an alternative to a Republican measure seeking to limit Congress’s longstanding authority over the federal judiciary. The GOP measure comes as Republicans go to extraordinary lengths to pack the courts, including seeking to jam through a Supreme Court nominee within days of a presidential election.
Republicans’ rush to fill the vacancy left by the death of Justice Ruth Bader Ginsburg culminates an unprecedented, norm-smashing effort to pack the Supreme Court. Republican Leader Mitch McConnell refused to move forward with Judge Merrick Garland’s nomination in March 2016 citing proximity to an election – even with that election eight months away. Numerous Republicans joined McConnell in arguing against considering a Supreme Court nominee during a primary election season. McConnell later fabricated a new standard to justify moving forward on a Supreme Court nominee, and, in late September, the Republican leaders signaled his party would take up a replacement for Ginsburg.
Now, with over 50 million votes already cast in the general election, Republicans are pushing to jam through their extreme, partisan nominee to a lifetime appointment on the Court.
To illustrate the cause of Republicans’ strange, hypocritical behavior, Whitehouse’s resolution lays out the troubling pattern of anonymous dark money spending to boost President Trump’s Supreme Court and other judicial nominees. Private organizations, funded by what a Washington Post investigation found to be over $250 million in dark money, play a dominant role in every phase of judicial selection. Dark money groups also engage in an intricate influence campaign to lobby sitting judges to rule in special interests’ favor once installed on the bench.
New details of this court-capture scheme come to light regularly. Today, Citizens for Responsibility and Ethics in Washington released new findings concerning an $80 million dark money group that has been at the center of Supreme Court nomination battles in recent years.
Republicans’ rush to fill the Supreme Court vacancy comes as the Trump White House and Senate Republicans fail to reach agreement on legislation to counter the devastating effects of COVID-19. Reporting shows Senate Republicans are actively pushing back against any deal between the White House and House Speaker Nancy Pelosi before the election to provide vital assistance for the American people.
Senate Democrats have released a series of reports on the right-wing special interest campaign to capture the courts. Those reports are available here.
Full text of Whitehouse’s resolution is below.
Title: Expressing the sense of the Senate that dark money undermines the integrity of the judicial system and damages the perception that all people receive equal justice under law.
Whereas dark money organizations, funded by anonymous donors, have played an outsized role in the selection of judges and justices of the Supreme Court of the United States (referred to in this preamble as the “Supreme Court”) under President Trump and spent millions of anonymous dollars on advertising campaigns supporting those selections;
Whereas the people of the United States have no idea who is funding these campaigns and what business the funders might have before the courts;
Whereas, under President Trump, the Federalist Society for Law and Public Policy Studies (referred to in this preamble as the “Federalist Society”) has played a central role in the selection of President Trump’s judicial nominees, including his 3 nominees to the Supreme Court, for example—
(1) in 2016, then-candidate Trump said that all of his judicial selections would “be hand-picked by the Federalist Society”;
(2) in 2017, then-White House Counsel Don McGahn boasted that the judicial selection process had been “in-sourced” to the Federalist Society;
(3) Leonard Leo, the Co-Chairman of the Federalist Society, twice took a leave of absence from the Federalist Society to work in the White House and advise President Trump on his Supreme Court nominations;
(4) approximately 86 percent of President Trump’s Supreme Court and appellate court nominees have been members of the Federalist Society; and
(5) Judge Amy Coney Barret has spoken at 26 Federalist Society events since 2014 and, at the time of his confirmation in 2018, Justice Brett Kavanaugh had spoken at over 50 Federalist Society events;
Whereas the Washington Post reported that Leonard Leo has helped raise $250,000,000 from mostly anonymous donors to promote conservative legal causes and judges;
Whereas groups engaged in these activities do not disclose their funders, meaning the people of the United States have no idea who is behind this sophisticated operation to influence the selection of judges and justices;
Whereas dark money groups like the Judicial Crisis Network (referred to in the preamble as “JCN”) have helped shape the composition of the Supreme Court by spending tens of millions of anonymous dollars on advertising campaigns opposing or supporting Supreme Court nominees, specifically—
(1) JCN spent $7,000,000 to block President Obama’s nomination of Judge Merrick Garland to be an Associate Justice of the Supreme Court in 2016;
(2) JCN pledged to spend $10,000,000 to support President Trump’s nomination of then-Judge Neil Gorsuch to be an Associate Justice of the Supreme Court in 2017;
(3) JCN also spent $10,000,000 to support President Trump’s nomination of then-Judge Brett Kavanaugh to be an Associate Justice of the Supreme Court in 2018; and
(4) JCN has pledged to spend $10,000,000 to support President Trump’s nomination of Judge Amy Coney Barrett to be an Associate Justice of the Supreme Court;
Whereas JCN is a dark money organization and does not disclose its funders to the people of the United States;
Whereas JCN has received multiple massive contributions from the anonymous donors, specifically—
(1) a $15,881,000 anonymous contribution in tax year 2018;
(2) a $17,100,000 anonymous contribution in tax year 2017;
(3) a $21,464,995 anonymous contribution in tax year 2016; and
(4) a $17,920,000 anonymous contribution in tax year 2015; and
Whereas the American people have no idea who made these massive contributions and what business the contributors might have before the courts: Now, therefore, be it Resolved, That it is the sense of the Senate that—
(1) fair and impartial courts are a bedrock of American democracy and crucial to maintaining the faith of the people of the United States in the justice system;
(2) this massive dark money operation to influence the selection and confirmation of judges and justices creates significant conflict of interest concerns for the judiciary and undermines the integrity of the courts and the justice system; and
(3) the people of the United States deserve to know who is behind this massive dark money campaign to capture the courts.
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