Nomination of Amy Coney Barrett

Floor Speech

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Mr. WHITEHOUSE. Supreme Court. What is the evidence of that? Well, the first thing I would suggest is the amount of anonymous dark money influencers swirling around the Court.

I have spent a good deal of my professional life around appellate courts. I have never seen--nor does the history of the Supreme Court evidence--anything like what is taking place right now with dark money influencers swirling like eels around that Court.

How do they do it? Well, they are involved in the selection process through a group called the Federalist Society, which takes large, anonymous, dark-money contributions and controls the selection of judges. How do we know it controls the selection of judges? Donald Trump has said so.

The Wall Street Journal has said this was a subcontracting operation--a subcontracting operation--and it worked. It is not a good thing when the selection of our Supreme Court is subcontracted out to a private group that then takes multimillion-dollar anonymous donations. It shouldn't be hard for Members to understand that is a dangerous set of facts.

Then you go on to the campaigns for those selected nominees, and you see more anonymous donors writing checks for as much as $17 million. I can't write a check for $17 million. I don't know anybody here who can. The number of donors who can write a check for $17 million is very small, and the number who would want to is even smaller. That is another avenue of influence.

Last, you have law groups appearing before the U.S. Supreme Court, also anonymously funded. Some have gone out to find a plaintiff of convenience to bring strategic litigation before the Court. Some appear as what they call amici curiae, friends of the Court. Some swap back and forth in the same series of cases; they exchange positions as the litigant group and a friend of the Court. But what they share is that they are funded by the same groups, and they don't disclose that to the Court in their filings. So it raises the proposition that this isn't just dark-money eels swirling around the Court, but these are, in fact, tentacles of a common operation.

It is particularly surprising that the Senator from Montana would not have concern about this because the State of Montana has been so strongly concerned about dark-money influence for so long. Indeed, it was a State of Montana case that went to the Supreme Court under, I guess, Attorney General Bullock at the time, where Senator McCain and I wrote a bipartisan brief warning of the dangers of all of this money.

So that is the first thing--dark-money influencers swirling around the Court in a way that is unprecedented, in my view, in judicial history.

The second is a pattern of decisions that has emerged out of that Court. Under Chief Justice Roberts, there have been 80 decisions that had these characteristics: One, they were decided 5 to 4--a bare majority. Courts usually strive to build stronger majorities because that strengthens the institution. Eighty cases, bare 5-to-4 majorities--by the way, bare partisan 5-to-4 majorities--and in every case, an identifiable Republican donor interest at stake that won--a pattern of 80 to 0.

Last, you have the behavior taking place politically around these nominations and how peculiar that behavior is.

Here is Senator Daines talking about the effort to appoint Judge Garland to the Supreme Court. He said, ``I don't think it's right.'' The Senator put it in terms of right and wrong. And he said, ``I don't think it's right to bring a nominee forward in an election year.'' He said, ``The American people have already begun voting . . . and their voice should be reflected in what we do going forward.''

The very next occasion, the very next election in which the same set of circumstances presented itself, he and virtually everyone on the Republican side completely reversed their position about what is right in this matter. When you see reversals of position like that, that is a signal to me that there is something more going on.

So whether it is all the dark money, whether it is the peculiar pattern of decisions, or whether it is the unexplainable behavior of Members, it sends a pretty strong signal that something is, in fact, rotten in and around that Court.

I believe that every one of us should agree that we are entitled as Americans to a court that is not a pantomime court that goes through the routine, the ritual of adjudication, while making sure that a small group of special interests actually wins the case at the end of the day. Nobody should be interested in a court that operates that way.

We don't know how bad the situation is because it is dark money, because it is still hidden, and until we figure it out, under the rule that it is premature to rule out remedies until you have a complete diagnosis, I will object.

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Mr. WHITEHOUSE. I just want to make sure that the record of the Senate is clear here. Democrats don't just decry dark money spending; Democrats have, over and over again, sought to end it. I know this because I was the floor leader on the DISCLOSE Act when we brought it right here in the Senate, and we came within one vote of getting rid of dark money. Every Democrat voted for that measure. Every Democrat voted to get rid of this scourge of dark money. Every Republican voted to protect it.

So, yes, do Democrats use dark money? We are playing by your rules. We are playing by Republican rules. We could have brought up the DISCLOSE Act again because it was the first order of business the House passed in H.R. 1, but the Senate majority leader didn't want that bill to get a vote.

So it is a little bit rich to hear a litany of woes about dark money from the party that is responsible for dark money happening. We could have gotten rid of it if we had passed my DISCLOSE Act. We could have gotten rid of it if we had passed H.R. 1. We did none of the above.

So if I may, I would like to ask that a resolution be passed. Unanimous Consent Request--S. Res. Res. 59, submitted earlier today; further, that the resolution be agreed to, the preamble be agreed to, and the motions to reconsider be considered made and laid upon the table with no intervening action or debate.

If I may, just briefly, before the Presiding Officer calls for objections, just describe the resolution, which expresses 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; that dark money organizations funded by anonymous donors are now playing an outsized role in the selection of judges and Justices of the Supreme Court of the United States and have spent millions of anonymous dollars on advertising campaigns supporting those selections; that the people of the United States have no idea who is funding these campaigns and what business those funders might have before the Court; that the Federalist Society and the Judicial Crisis Network and other groups have been a part of this and they are heavily dark money funded in this role; that then-Candidate Trump said of his judicial selections that they would ``be hand-picked by the Federalist Society''; that his White House counsel boasted that the Federalist Society had been ``in- sourced''; that the Washington Post reported that Leonard Leo, then of the Federalist Society, helped raise $250 million from mostly anonymous donors into this effort--and I will leave the rest of the details to interested readers who want to pursue it.

But I would say to Senator Daines' umbrage about dark money in Montana campaigns, if there is anything worse than dark money in political campaigns, it is dark money around courts, and that is the problem we face right now, and that is what requires looking into

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Mr. WHITEHOUSE. Mr. President, I would just add, that was not what Senator Daines or anybody else on the Republican side said at the time. I was here at the time, and what was said at the time, particularly by Senator Daines is ``I don't think it's right to bring a nominee forward in an election year''--not when the party's control is split in one way or another. ``I don't think it's right to bring a nominee forward in an election year'' because the American people should have their voice ``reflected.''

That has not changed. This new emphasis on the party difference is fundamentally the rule of ``because we can.'' If that is going to be the rule, if that is the rule that Republicans are prepared to adopt here--that what matters around here isn't precedent, isn't principle, isn't what is right, but is just because we can--then please don't feign surprise in the months and years ahead if we on the Democratic side follow that same rule that you are saying is the way to proceed today.

In the same way that it is at least ironic for Republicans to stand here complaining about dark money when it was the Republican Party that protected dark money here on the Senate floor, it will be equally ironic if the party should turn around later on and Democrats seek to use the measure of ``because we can,'' and you raise objections. You are basically here on the Senate floor forfeiting your right to make those objections in the way you are behaving on this nomination.

With that, I will yield the floor to Senator Scott.

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Mr. WHITEHOUSE. Mr. President, given the time, I will reserve the other unanimous consents I have. I understand that we are going to close, and we are close to that time. So I appreciate Senator Scott's coming to the floor to respond to those, but I yield back.

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Mr. WHITEHOUSE. Mr. President, I will shortly ask to have a quorum call by noting the absence of a quorum, but before I do that, I wanted to point out just one issue of vocabulary, if you will, which is that the definition of ``court packing'' has actually two operative definitions on the Senate floor: One is to expand the number of judges; the other is to take advantage of existing vacancies and try to use them to change the balance of the courts and to put in judges who are predisposed to certain rulings.

That is, in fact, the meaning that Senator McConnell gave to that term when he said that President Obama was seeking ``to pack the D.C. Circuit with appointees'' when he was filling vacancies; that Senator Cornyn used when he said President Obama wanted to ``pack the D.C. Circuit''; what Senator Grassley used when he announced President Obama's ``efforts to pack'' the D.C. Circuit; and when Senator Lee of Utah accused President Obama of trying to ``pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda.''

So when we describe all that has taken place across the last three nominations--all the procedural abnormalities, all the peculiarities of funding, all the odd political behavior on the other side, the 180- degree, tire-squealing reversals, all of that, we are actually following the vocabulary that you all used about the D.C. Circuit, just to be clear on that point.

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