Whitehouse Votes ‘No’ on Gorsuch, Urges Consensus Supreme Court Nominee
‘Nothing prevents a President from announcing a consensus nominee for the Supreme Court with both Senate leaders standing beside him’
Washington, DC – Today in the Senate Judiciary Committee, Senator Sheldon Whitehouse (D-RI) voted against reporting to the full Senate the nomination of Judge Neil Gorsuch to the Supreme Court and called on the President and Senate Republicans to find a nominee who can win broad, bipartisan support. The Committee voted 11-9, along party lines, to advance Gorsuch’s nomination. Whitehouse also implored the Majority to avoid changing long-standing Senate rules to confirm such a controversial nomination.
“There is actually another way to do this. Nothing prevents a President from announcing a consensus nominee for the Supreme Court with both Senate leaders standing beside him,” said Whitehouse. “This President chose to go a different way, choosing a candidate off lists put together by what I consider to be front groups for big special interests and there’s a significant backdrop to that concern.”
Whitehouse also discussed Gorsuch’s failure to take a stand against the anonymous political spending—or “dark money”—that has proliferated since the 2010 Citizens United decision and that has financed a campaign to advance Gorsuch’s nomination. Last Thursday, Whitehouse and Senate colleagues requested that Gorsuch call on those donors to reveal themselves prior to today’s vote so that the American people could see who has been seeking to influence the nomination process.
“For this nominee to be unable to say, for instance, that dark money is a plague on our democracy is to me disqualifying,” Whitehouse said. “That silence is particularly pungent while the beneficiary of a dark-money campaign for his confirmation. This nominee’s candidacy was born on a list prepared by right-wing, pro-corporate front groups, was announced to this nominee by the leader of one of those groups, and is supported by millions of dollars in dark-money spending. Against that backdrop, his silence on dark money is telling. And the political leader of the Republican Party is preparing to break the rules of the Senate to guide him onto the Court. Please don’t tell me that he is making that effort in the interest of some high judicial philosophy. This is about making sure that people win at the Court who are of a certain type, like CEOs and billionaires.”
Senate Republicans have indicated that they may break Senate precedent to end debate on Gorsuch’s nomination with a simple 51-vote majority, rather than the 60 votes required by Senate rules. With the exception of Justice Clarence Thomas, every nominee confirmed to the Court since the Eisenhower Administration has received unanimous support or received more than 60 votes in the Senate.
Full text of Whitehouse’s remarks is below. Video is available here.
Let me join my colleagues in expressing my appreciation to you and to the staff for the wholesome and collegial way in which you have conducted this hearing. And let me say there is actually another way to do this. Nothing prevents a President from announcing a consensus nominee for the Supreme Court with both Senate leaders standing beside him. Nothing prevents that. This President chose to go a different way, choosing a candidate off lists put together by what I consider to be front groups for big special interests and there’s a significant backdrop to that concern.
Let’s go back to 1954 for starters when in his first year on the bench, Chief Justice Earl Warren was faced with a monumental case, Brown vs. the Board of Education of Topeka, Kansas. Earl Warren knew that the Court had to finally answer Justice Harlan’s call in Plessy and finally strike down school segregation across the country. Drawing on his experience in politics, Chief Justice Warren also knew that such a far-reaching decision needed unanimity among the justices on the court. The Chief Justice worked through draft after draft of the opinion until he had forged that essential consensus.
This example of consensus building appears to be lost. Starting under Chief Justice Rehnquist, but increasing under Chief Justice Roberts, the conservatives on the Court consistently deliver for the Republican Party and big business in a recurring and disturbing array of 5-4 decisions. Those decisions when you look at the analysis have been anything but conservative in the judicial sense, they overturn precedent, they toss out statutes passed by wide bipartisan margins in Congress, they ignore original meaning, and they stretch to reach Constitutional issues.
Rather than calling “balls and strikes,” or working to develop narrow rulings that do in fact build consensus, when there are five Republican appointees on the Court, in recent years they have consistently delivered 5-4 results giving a bigger strike zone to Republicans and big business.
In elections, a 5-4 decision in Vieth v. Jubelirer, the Court held political gerrymander claims were not reviewable, paving the way for the REDMAP statewide gerrymandering project that gave Republicans control of the House against the majority vote of the country in 2012.
In Shelby County and Bartlett v. Strickland, again both 5-4, the conservatives knocked down protections of the Voting Rights Act, allowing Republican legislatures to target minority voters with what the Fourth Circuit later called “surgical precision.”
Three more 5-4 cases, Citizens United, Bullock, and McCutcheon, gave unprecedented political power to big Republican donors as the Republicans on the Court unleashed what has been described properly as a tsunami of slime on our American elections, throwing our political system into chaos and very predictably advantaging powerful Republican political interests.
Six 5-4 decisions affecting the political balance of American elections, 6-0 is the score for Republicans.
Onto big corporations. Corporations hate being hauled in front of juries. Juries are the one institution designed by the Founders to be most immune to power. The institution of the jury was a particular favorite, a cause even of the Founding Fathers, but in five decisions—Iqbal, Wal-Mart v Dukes, Comcast, Concepcion, and Italian Colors, all 5-4—this Court insulated corporations from being held accountable by American juries. And, by the way, those decisions made no mention of the 7th Amendment.
Their decisions helped insulate investment bankers from fraud claims Janus Capital Group, Inc., 5-4.
They protected employers, at the expense of employees bringing discrimination cases. Ledbetter, Gross, Vance, and Nassar. Four decisions. All 5-4, all holding for the corporate employers.
They hobbled unions in cases like Harris v. Quinn, 5-4. And I don’t think it takes a crystal ball to guess the outcome of the Friedrichs question, when it comes back up to the Court with a fifth Republican justice.
Then come the bonus decisions: Hobby Lobby, asserting that corporations have religious rights that supersede health care rights of their employees, 5-4; Heller and McDonald, reviving for the gun lobby and firearms manufacturers a theory a former Supreme Court Chief Justice once called a “fraud,” 5-4, all Republicans.
Add back in those three pro-corporate political spending cases, and the score on this count is corporations 18, humans zero. At some point, a pattern becomes evident.
It is against this evidentiary backdrop that I reviewed Judge Gorsuch’s nomination. He had to prove to me that he would not join a new right-wing “gang of five” upon joining the Court, and go on another similar corporate shopping spree. I am sorry to say he did not meet that bar.
I know my friends on the other side of the aisle will accuse Democrats of being unreasonable and politicizing this process – indeed, they already have. This is a bit rich to us coming from the party that not only denied Judge Garland, perhaps the most qualified judge ever nominated, so much as a hearing, but from the party that has been the flagrant beneficiary of all these partisan decisions. I feel like I’m watching Casablanca where the inspector says that he is “Shocked, shocked!” to find that gambling is going on here, as he is handed his winnings.
I believe we are nearing a break point for the Court and for the country. Since Citizens United, faith in government has dwindled and cynicism toward government has skyrocketed, exactly as certain forces would like. In a 2015 poll, 75 percent of U.S. adults perceived corruption as “widespread” in the country’s government. 75 percent. And 82 percent of Americans think money has too much influence in politics. By the way, they’re right. Even the Supreme Court is not spared from public disillusion. By a margin on 9 to 1, Americans think a regular person won’t get a fair shake against a corporation in our Supreme Court, compared to vice versa. And the three major popular writers on the Supreme Court all express similar concerns. Something is wrong at the Court.
As a child of the Foreign Service, I grew up a firm believer in American Exceptionalism. I saw firsthand what happens when dictators or oligarchs can manipulate a government for their own gain. The incessant danger to popular democracy at the hands of concentrated economic power was warned of long ago by none less then Thomas Jefferson, who warned of what he called a “trial of strength”—a trial of strength between popular democracy and moneyed corporations.
Americans need a justice who understands these stakes. Americans need a justice who can help the Court find its way back to robust protection of popular democracy, and not so relentlessly take the sides of moneyed corporations in that Jeffersonian “trial of strength” with popular government.
For this nominee to be unable to say for instance that dark money is a plague on our democracy is to me disqualifying. That silence is particularly pungent while the beneficiary of a dark money campaign for his confirmation. This nominee’s candidacy was born on a list prepared by right-wing, pro-corporate front groups, was announced to this nominee by the leader of one of those groups, and is supported by millions of dollars in dark money spending. Against that backdrop his silence on dark money is telling. And the political leader of the Republican Party is preparing to break the rules of the Senate to guide him onto the Court. Please don’t tell me that he is making that effort in the interest of some high judicial philosophy. This is about making sure that people win at the Court who are of a certain type like CEOs and billionaires.
I’m sorry, but there is just too much evidence of where this leads for me to trust this nominee. I yield back.
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