10.29.21

The Scheme 8: Tu Quoque (You Too)

Mr. WHITEHOUSE. Mr. President, I rise today to discuss again the scheme by rightwing donor interests to capture and control our Supreme Court, just like big industries have captured and controlled regulatory agencies through history.

In these speeches, I have covered the origins, motivations, and central players in the scheme; and, today, I am here to respond to a little bit of counterprogramming from the scheme.

So, obviously, Job 1, if you have captured an agency, is to pretend it is not captured; it is still legit.

Well, on Thursday, the minority leader, Senator MCCONNELL, one of the principal operatives of the court capture scheme, traveled to The Heritage Foundation, one of the central dark money groups in the court capture scheme, to toast Justice Clarence Thomas, one of the most ardent justices in pursuing the scheme’s donors’ goals and purposes.

Senator MCCONNELL opened by lauding Justice Thomas for his campaign to overturn decades of precedent protecting women’s constitutional right to abortion. That is an important point to note because the court is set to take up not one but two cases offering the new 6–3 Republican majority a chance to tear down Roe v. Wade.

But his other mission was to defend the court capture scheme, and that is an important mission right now because the court just hit an all-time low on Gallup’s national approval survey. According to a poll out this month by one of the most respected pollsters in the country, about two-thirds of Americans think politics guides the Supreme Court’s decisions. And that is not a partisan opinion. Republicans and Democrats share that view in equal proportion.

And Americans aren’t wrong. When big Republican donor interests come before the Court, they win—it looks like every time. I have shown the pattern. I have published an article on it. It is currently at 80 to 0. Lawyers would love to take evidence like that— an 80-to-0 record—into court as pattern evidence of bias.

So when the evidence is bad, what do you do? You blow smoke. There is an old, old propaganda technique of accusing your adversary of the exact wrong you are committing. It is such an old propaganda technique that it even has a Latin name: the ‘‘tu quoque fallacy,’’ from the Latin for ‘‘you too.’’ The Oxford English Dictionary defines it as ‘‘retorting a charge upon one’s accuser.’’ It is a rhetorical trick.

At Heritage, Senator MCCONNELL used this rhetorical trick, retorting a charge that critics like me of what has happened to the Court were trying to politicize the Court. Now, that is a particularly tricky version of this rhetorical trick because it is an accusation of something that we did not do, coming from people who actually did that.

We have all seen in plain view the mischief done by Senate Republicans to capture the Court for big special interests. They weren’t even subtle. So the ‘‘tu quoque’’ rhetorical trick says to accuse us of what they did.

The Republican leader’s rhetorical charge stood on a Supreme Court brief that I wrote, along with a number of my colleagues. And in that brief, we quoted a Quinnipiac poll. That Quinnipiac poll showed that a majority of American voters believe the Court is—and I quote the poll here—‘‘motivated mainly by politics’’—‘‘motivated mainly by politics’’ and the poll continued that those voters believed the Supreme Court should be—and, here, I am quoting the poll—‘‘restructured in order to reduce the influence of politics.’’ That is the language from the poll question. And in our brief, we quoted it precisely.

In his telling, Senator MCCONNELL leaves out the quotation marks and turns what was essentially an uncontested observation of fact of what that poll said, using the language of that poll, into what the rightwing has constantly replayed and cooked up as a threat to the Court. He also suggested that I had called for expansion of the Court, which I have actually not done. But never let the facts get in the way of a good story, huh?

In his telling, the majority leader’s telling, it is Democrats who are up to no good at the Court. Let’s look at what that telling leaves out because it masks a lot.

First, it masks the Court’s partisan record, the record I have described: Justice Thomas and his fellow Republican appointees in the 5-to-4 and now 6-to-3 majority on the Robert’s Court has handed down over 80 partisan 5-to-4 decisions benefiting easily identified Republican donor interests. Like I said, by my reckoning, it is an 80-to-0 record for the big donors. His telling masks all of that.

It also masks the entire Republican Court-packing operation that yielded three donor-selected Justices and hundreds of lower court judges during the Trump Presidency.

It masks the big donors’ nominations turnstile at the Federalist Society, where they decided who would and would not become a Justice. It was insourced to the White House for it to vet and select Trump nominees.

It masks the dark money political attack groups, which used massive anonymous donations to apply political pressure on behalf of the donors’ nominees.

And it masks Leonard Leo and the shady $250 million web of dark money groups outed by the Washington Post for packing and influencing the Court.

What else does it mask? It masks the influence operation built to steer those Justices’ attention to rightwing donor priorities.

It masks the armada of amici curiae—so-called friends of the court—appearing before the Court by the orchestrated dozen, funded by dark money.

It masks the dark money front groups that comb the country for cases that can catapult selected controversies before the Court to help the Justices change precedent; it masks the special interest fast lane those front groups have established to get cases quickly before the Court, a fast lane the Court indulges; and it masks the hot house dark money so-called think tanks, like the Heritage Foundation where Senator MCCONNELL spoke, where legal theories benefiting Big Donor interests are planted and watered and fertilized and propagated for the Court to adopt.

And, last, it masks what Republicans did, shredding norms and rules that the Senate had long relied on to manage judicial nominations, the scrapping of the Supreme Court filibuster; the scrapping of the circuit court blue slip; the acceptance of preposterous assertions of executive privilege to hide nominees’ records; the refusal to grant Merrick Garland so much as courtesy visits, let alone a hearing; the invention of the so-called Garland rule about not confirming Justices near an election; the mad rush to confirm Brett Kavanaugh under the cloud of barely examined sexual assault allegations; and then the hypocritical full 180 reversing that so-called Garland rule to jam a rightwing Justice onto the Court 8 days before an election.

This was all done in plain view. This was not subtle. You have got to be gaslighting really hard to not pay attention to all that evidence.

I will tell you what, we weren’t the only ones watching. The American people are watching, and they are fed up with all of this. They trust their noses, and they know this reeks.

Senator MCCONNELL and I do agree on one thing. There are, as he said, ‘‘storm clouds’’ swirling around the Court.

I also agree with him when he said this; he said:

"One of our country’s two major political movements has decided they’re fed up with trying to win the contest of ideas within the institutions the framers left us and would rather take aim at the institutions themselves."

That statement is exactly true. It is just that Senator MCCONNELL got exactly wrong which party is the guilty one. Against that litany of interference and influence and dark money all around the Court that I just described, one misquote from a brief—it is not even a contest.

Here is a final quotation to set next to Senator MCCONNELL’s. It comes from Lewis Powell a few months before he took his seat on the U.S. Supreme Court. In a memo he wrote to one of the most significant forces in Republican politics, the U.S. Chamber of Commerce—a memo, by the way, that was never disclosed to the Senate during his confirmation proceedings. Here is what he wrote:

"Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change."

Powell branded the courts a major element of what he called ‘‘The Neglected Political Arena’’ that Big Business and rightwing ideologues should move in and exploit. Exploiting that is exactly what the rightwing donor scheme is. It enmired the Court in dark money influence. It packed the judiciary with judges selected to rule in the big donors’ favor. It won an 80-to-0 rout of partisan decisions benefiting Big Donor interests. And it is steering the Court to protect the dark money that was the prime vehicle for capturing the Court in the first place.

Oh, yes, indeed, the Court has been politicized, but look at the evidence. We weren’t the ones who did it, and no amount of smoke can obscure the evidence of how this Court became the Court that dark money built.

I yield the floor.