October 14, 2020

Sen. Whitehouse Remarks on Day 3 of Judge Barrett’s Confirmation Hearing

WHITEHOUSE: Thank you, Chairman. Judge Barrett.

BARRETT: Senator.

WHITEHOUSE: First, if I may, Chairman, let me ask unanimous consent that an essay I wrote for the Harvard Journal of Legislation called Dark Money and U.S. Courts be admitted to the record.

GRAHAM: Without objection.

WHITEHOUSE: That a report that some Democrats prepared called Captured Courts be admitted to the record, and that an article by Christopher Leonard of the New York Times called Charles Koch’s Big Bet on Barrett, describing his–activating his political network to support Judge Barrett’s nomination, also be entered into the record.

GRAHAM: Without objection.

WHITEHOUSE: Thank you. Judge Barrett, on the Seventh Circuit you are subject to a code of ethics, are you not?


WHITEHOUSE: And I presume you are okay with that?

BARRETT: Of course.

WHITEHOUSE: In fact, I would submit you probably think that’s a good thing?


WHITEHOUSE: And, indeed, it is true of all the circuit courts that they are subject to pretty much the same code of ethics, correct?


WHITEHOUSE: It gets different at the Supreme Court. The Supreme Court is not subject to a code of ethics, is it?

BARRETT: The canons of judicial conduct that apply to lower court judges do not apply to the Supreme Court, although I do believe it is the practice of the Supreme Court to follow them.

WHITEHOUSE: Yeah, they do not apply. We agree. And, indeed, going to the Supreme Court can interrupt an ethics investigation, as we saw with the Justice Kavanaugh, who had an ongoing ethics investigation in his circuit that was interrupted by his elevation to the Supreme Court without having concluded. Let me first ask you, there’s no such thing with you, correct? We have no Seventh Circuit ethics investigation going on that would be interrupted by your elevation to the Supreme Court?

BARRETT: I’m not aware of any ethics investigations.

WHITEHOUSE: I suspect you would be, so good, we can put that behind us. With respect to reporting of gifts, of travel, of hospitality, of what the constitution might call emoluments, all of the circuits have a pretty solid rule about reporting those, and you comply with that rule on the Seventh Circuit, do you not?

BARRETT: I do. It might even be by statute that we have to do that, but I do.

WHITEHOUSE: Yes, and the rule–I don’t know how familiar you are with this, so I’ll offer this as a proposition–the rule that you follow and the way in which circuit judges follow it aligns quite well with the reporting requirements that, in the executive branch, members of the cabinet have to do when they get gifts, travel, hospitality and other emoluments, and it aligns quite well with the reporting that members of Congress have to do when they get, when we get, gifts of travel or hospitality or other such emoluments.

The discrepancy here is with the Supreme Court, which has a much lower standard of transparency and disclosure about those very same things. So it’s a bit of a mystery when I see the situation, that when you go up to the court you will be not subject to the code of ethics that you’re subject to now or any other, and you will have lower reporting requirements than you do now, or that any of us do. And I flag that for you because I think it’s anomalous that the highest court should have the lowest standards, and I don’t know if you want to say something about that. At a minimum, I hope you will keep an open mind about trying to fix that when you’re on the court. If you have a defense of why the highest court should have a lower standard, have at it now.

BARRETT: I didn’t know–I know that the justices file financial disclosure reports. I’ve never looked at one. I didn’t know that they were different or that it was a lower standard from the ones that the rest of us file.

WHITEHOUSE: Okay, well take a look at that when you get up there. This is a matter, I think, that the court handles administratively.

GRAHAM: I’ve never interrupted anybody, but can I just ask one question?

WHITEHOUSE: Of course.

GRAHAM: Now that you know that, how do you feel about it?

BARRETT: That the Supreme Court–

WHITEHOUSE: Does that stop my time while you’re answering the chairman’s question?

GRAHAM: Stop time, but I think it’s a good question. Now that you know, how do you feel about it?

BARRETT: I guess, as I just said to Senator Whitehouse, I’m surprised because I did think it was by a statute that applied to everyone, so I’m surprised. I’ve always complied with filling out my financial disclosure reports, and as I’m sure it may have been for you all, you know, it’s a little uncomfortable the first time to make your finances available. Anybody can request it. But I’ve always complied.

WHITEHOUSE: For the record, it’s a question of interpretation and practice, and Senator Graham and I have actually had public conversations about trying to remedy this with a legislative fix, so you’ve got that potentially coming your way, so I flag that for you. The second thing, another topic I’d like to raise with you, is you’ve repeatedly mentioned during this hearing the phrase about litigation winding its way up through the courts and ultimately to the Supreme Court. And, you’ve described that process of winding its way as an important restraint on judicial activism, that you’ve got to wait until a case gets to you in the ordinary courts, correct?

BARRETT: Correct.

WHITEHOUSE: That’s a fair description of where you’ve been?

BARRETT: Correct.

WHITEHOUSE: Yeah, and ordinarily–I don’t know if you’ve ever done a case, but ordinarily when you do a case, it begins with a person, right?

BARRETT: Correct.

WHITEHOUSE: And, that person feels an injury.


WHITEHOUSE: And, then that person goes to a lawyer.


WHITEHOUSE: And, then that lawyer goes on their behalf to court.

BARRETT: And, files a complaint.

WHITEHOUSE: And, files a complaint. And, then in court, they try to win and vindicate their injury. That’s kind of the basic standard way in which this works.


WHITEHOUSE: So, it gets a little weird sometimes and that’s a circumstance I’d like to bring up to you because it touches on some of the stuff that I addressed yesterday. One–it’s not even a case. You know Janus.


WHITEHOUSE: Okay. Let’s describe this as the Janus saga because it’s more than really one case and it’s really about a completely different case called Abood. You’re familiar with the Abood decision?


WHITEHOUSE: So, the Abood decision was precedent for what, 40 years?

BARRETT: I can’t remember when Abood was decided, but it was precedent before Janus.

WHITEHOUSE: Yeah, and roughly 40 years, I’ll tell you, and had repeatedly been reaffirmed.

BARRETT: It was a longstanding precedent.

WHITEHOUSE: Yeah, on which there was considerable reliance.

BARRETT: Let’s see. So, Janus did overrule that precedent, and so Janus did go through the application of the stare decisis factors in deciding whether to overrule it–


BARRETT: –whether that conclusion was right or wrong–

WHITEHOUSE: –And, there was in fact reliance in the 40 years that it had been the law of the land on the question of the union question that had resolved.

BARRETT: Well, I don’t want to second guess or criticize or praise the majority in Janus’s calculation–

WHITEHOUSE: –I’m not asking you to. I’m asking you, as a matter of fact, had 20 plus states relied on it?

BARRETT: Well, Senator, I think reliance and the degree of reliance on Abood is a legal question.

WHITEHOUSE: Okay, we’ll just leave that then. So, the–the Janus saga begins actually with a case called Knox in which Justice Alito took a shot at Abood. He criticized it as substantially impinging upon First Amendment rights of union members. Just for people who are watching, the Abood case was about the right of a labor union to get compensated, not dues, but just compensation from non-members when in their representation of their members, they get added benefits for the people who are not members. So, not the most exciting part of the law, but settled this question of when labor unions could get compensated for work they do for non-members.

But, Justice Alito did not like it. He took a shot at it in Knox v. SEIU and the concurrence in that case said, whoa, wait a minute, “The majority’s choice to reach an issue not presented by the parties briefed or argued disregards our rules.” But, Justice Alito didn’t like something about Abood and so he took that shot.

Then we went on to a later decision called Harris v. Quinn. Alito took another shot at Abood in that case, describing Abood as having analysis that is questionable. He undertook an extended critique of the decision describing it as having questionable foundations.

Justice Kagan spotted that and in her dissent, she said, “Today’s majority cannot resist taking potshots at Abood” and described its critique of Abood’s foundations as gratuitous dicta. But, the message went out from Judge Alito that he wanted to do something about Abood. There was something about Abood that he did not like.

And, with that, we went to–that’s the prequel. Then we went to the two cases that followed. The first one was Friedrichs, which was supposed to be the case that got rid of Abood and it had an interesting travel because the lawyer in the case was one of these groups from Janus. It was the Center for Individual Rights right here who was counsel. In Janus, the National Right to Work Legal Defense Foundation was counsel. So, they switched, right?

In Friedrichs, Center for Individual Rights was counsel and National Right to Work was an amicus. When it went on to Janus, they switched. National Right to Work Legal Defense Foundation was counsel and Center for Individual Rights was an amicus.

And, from everything that I see, it looked like they actually went out and found the plaintiff. So, back to our earlier discussion, it wasn’t the injured person that went and hired a lawyer. It was the legal group that went and found a plaintiff.

And, then they went to court, which everybody does, but it got interesting there because there, the lawyers asked to lose. I don’t know if you’ve ever been in a case in which the lawyers asked to lose before. I never have been. I’ve never litigate–litigated against anybody who asked to lose. Have you ever been in a case in which a party asked to lose?

BARRETT: No, I don’t think I’ve ever experienced that.

WHITEHOUSE: Yeah, I can–I can imagine not. So, these groups with all this money behind them from donor’s trust and Bradley Foundation and all come into court and they say, “Please dismiss my case” in the district court. And, then they go up to the 9th Circuit and they specifically ask the 9th Circuit to get rid of their case, to uphold the decision, dismissing their case, “as quickly as practicable–as practicable and without argument.”

Have you ever seen a case in your circuit where somebody came in and said, “I’d like to lose and I’d like to lose as quickly as practicable and I’d like to lose without making an argument on behalf of my client”?

BARRETT: With–but, Abood was controlling law at that point, right?

WHITEHOUSE: My question was have you ever seen that happen in your circuit.

BARRETT: I have not seen that happen in my circuit.

WHITEHOUSE: Yeah. Okay, so then the case went on to decision and as predicted or signaled by Justice Alito, it looked like it was going to be a five to four decision, knocking out Abood after 40 years. Sadly and unfortunately, Justice Scalia died before that decision could be rendered, so it actually turned out to be a four-four decision and as you know, a four-four decision, the tie goes to the decision below and the 9th Circuit prevailed and so that was it for Friedrichs.

But, it didn’t take long for this same group–so, this is back to my Janus exhibit. These are all the commonly funded amici and lawyers who showed up in Janus. Eleven of them had showed up in Friedrichs. So, Janus was a reunion of the team, everybody piling back in together to get what they–and there was no big rush this time because this time, they had to wait for the vacancy on the court to be filled. They didn’t want a four-four decision. They had to wait for Justice Gorsuch.

So, there wasn’t the same rush. The case came through more ordinary travel and then boom, in they went to argue it and down came the decision.

And, I ask you to think that through because I’ve done some appellate argument and I’ve done some trial work and I have run an awful lot of litigation, and one of the things that has been a constant for me has been the belief that even if I was kind of taking a longshot case, I’d get a fair hearing, I’d get a fair decision, and I had a shot.

I’ve got a feeling that the lawyers going into the United States Supreme Court in that Janus case looking at this array of commonly funded anti-union front groups assembled against them as amici, having seen what Friedrichs portended, having been signaled by Alito in those earlier cases that they wanted to get rid of Abood, that they were on the hunt for Abood, that’s a feeling that no lawyer should have in America.

And, all I want to do is leave with you the thought that when you’re on the court, I hope you will conduct yourself and see in whatever way you can that the court conducts itself in such a way that no lawyer goes into an argument in the United States Supreme Court feeling the case is set against them, and there is nothing to be done other than go in and take your medicine.

BARRETT: Senator Whitehouse, I will approach every case with an open mind.

WHITEHOUSE: So I have a little bit of time left, so I’m going to get onto a third–by the way, I’m not the only one who sees this as a saga. The dissent in Janus said here ends the quote, “Six-year campaign to undo Abood by the majority of five.” Pretty safe to say that you don’t think courts should be campaigning to reach decisions.

BARRETT: Without commenting on–


BARRETT: –Janus or what happened there–


BARRETT: Yes, I think that judges shouldn’t have campaigns.

WHITEHOUSE: Or projects?

BARRETT: I think judges should not have projects, and they should not have campaigns. They should decide cases.

WHITEHOUSE: Thank you. So let’s talk about because we have had all of these, I think odiferous amici fluttering around the court without disclosing who is really behind them, let’s talk about amici for a minute. First of all, on the seventh circuit, do you have ex parte meetings with litigants?


WHITEHOUSE: Because why?

BARRETT: Well, there would be–make–

WHITEHOUSE: It is wrong?

BARRETT: Yeah, sure, I mean there are constraints against doing so.

WHITEHOUSE: And how about with amici, if you have a case in which there is an amicus in a case that is before you, would you meet privately with amici while their case–the case in which they have written a brief is pending?

BARRETT: You mean meet privately, allow the amici to have access to the judges privately–


BARRETT: –to try to make the case? I would not do that.

WHITEHOUSE: No, and why would you not do that?

BARRETT: That would be inappropriate.

WHITEHOUSE: Yeah. And in fact, is it possible that you could not even know who was really behind the amicus if they haven’t told you?

BARRETT: You mean how the amicus was funded?


BARRETT: To my knowledge, I’m thinking through what the disclosures are in friends and briefs. I mean, to my knowledge, that information is not part of what groups disclose–


BARRETT: –when they file amicus briefs.

WHITEHOUSE: Correct. There’s actually a bit of a tradition that has developed that amici in their disclosure only describe who paid for the actual physical preparation and filing of the brief, so if you had a big interest, let’s say that went and gave a group $1 million, maybe even stood up a pop-up group out of no place and said here’s $1 million I want you to go out and do great things, oh and by the way we would sure appreciate it if you filed an amicus brief in this matter just don’t mention us, and we would love to give you some advice about what you should say in the amicus brief, and it would be nice if you would let us read it before you file it so we can make sure we don’t need to give you any more advice.

That doesn’t meet the standard of 37.6. The court and the parties would never know, and in fact, this happened in the Oracle case, in Oracle v. Google.

It turns out that Oracle had given up to $99,000 according to their disclosure to something called the Internet Accountability Project, which filed a brief and didn’t disclose that Oracle, a party in the case, had given it $99,000 and Internet Accountability Project was basically a pop-up, somebody established it, it took the money, it wrote the brief. There is a group that has more credit that’s been around longer called the American Conservative Union, which was given up to $500,000 by Oracle and filed a brief in the Oracle case and didn’t disclose that it had been given that kind of money by Oracle. Isn’t that the kind of stuff that parties ought to know that the public ought to know and that the court ought to know?

BARRETT: I didn’t know that until you just shared that information with me.

WHITEHOUSE: Well, think about it because I think it’s something that the public and the parties in the court ought to know because if what you have is amicus groups that are coming in flying false flags, not revealing whose interests they are really there to support and potentially teeing up arguments and ideas that will benefit the secret funders, that will maybe tee up for a case they know is coming, but isn’t this case, but if they can tilt the law a little bit, it can have an effect later on. Other parties should know that. So I urge you to consider that and I’m–I’m 13 seconds out so I will leave it with that.

Please think about these things. There is something that is not right about the way this is happening, and I urge you, and I urge anybody from the court who is listening to try to sincerely try to clean this mess up because it is not good for the court. Thank you.

BARRETT: Thank you, Senator Whitehouse.