Supreme Court nominee Amy Coney Barrett isn’t going to answer any of the big questions truthfully, and Sen. Sheldon Whitehouse knew that. So instead of inviting Barrett to be dishonest, Whitehouse explained the forces that put her in that Senate hearing room with the specific agenda—killing the Affordable Care Act, ending marriage equality, overturning Roe v. Wade—she is on the record as having (but is currently pretending not to have).
Whitehouse described the Senate hearing room as being like a puppet theater, with “forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.” Highlighting the hypocrisy from Senate Republicans who claimed in 2016 that they would oppose filling a Supreme Court seat in 2020 only to push to do exactly that after the death of Justice Ruth Bader Ginsburg, Whitehouse said “When you find hypocrisy in the daylight, look for power in the shadows.” He then spent his time shining a light on the power in the shadows—the right-wing dark money behind the Republican takeover of the courts and the use of the courts to move U.S. policy ever to the right.
You really have to find the time to watch the whole thing, because it is an education in how right-wing dark money has corrupted the courts—and in how the end result is a corrupt Supreme Court. Whitehouse identified the groups like the National Federation of Independent Business, the Federalist Society, and the Judicial Crisis Network, into which secret donors have poured tens of millions of dollars. These groups select Republican judicial nominees, promote and lobby for those nominees, submit giant piles of amicus briefs in cases before the courts, all in a well-funded scheme to change U.S. law through the courts. Huge amounts of money, Whitehouse noted, come through an organization called Donors Trust, a “gigantic identity-scrubbing device for the right wing” that exists to funnel anonymous money into the campaign to control the courts.
Adding it all up, the right wing has spent $250 million for control of the courts. “$250 million is a lot of money to spend if you’re not getting anything for it,” Whitehouse said. “So that raises the question, what are they getting for it? Well, I showed the slide earlier on the Affordable Care Act, and on Obergefell, and on Roe v. Wade. That’s where they lost. But with another judge, that could change. That’s where the contest is.”
And while Republicans have lost on those three big issues Whitehouse identified, they’ve won on a lot. He counted 80 cases decided by what he called “the Roberts Five” on the Supreme Court, without a single vote from a justice appointed by a Democratic president. “And t’s important to look at where those cases went, because they’re not about big, public issues like getting rid of the Affordable Care Act, undoing Roe v. Wade, and undoing same-sex marriage. They’re about power,” Whitehouse said. Power as in “there is an identifiable Republican donor interest in those cases, and in every single case that donor interest won.”
Whitehouse identified four areas around which these judgments center: “unlimited and dark money in politics,” curtailing the power of the civil jury, weakening regulatory agencies, and limiting voting rights. On the civil jury, he said, “You can’t bribe them, you’re not allowed to. It’s a crime to tamper with a jury. It’s standard practice to tamper with Congress.”
It’s a stunning, detailed indictment of how Republicans have bought the supposedly nonpartisan courts. Watch the whole thing if you can.