whitehouse1_Greg Nash - PoolGetty Images_whitehouse barrett hearing

America’s Captured Courts

Nov 25, 2020 Sheldon Whitehouse

Decades ago, a group of powerful US corporate interests recognized that the unpopular policies they sought faced steady headwinds in the elected branches of government. But courts, stocked with amenable judges and presented with the right cases, could reliably deliver political wins without answering to voters.

WASHINGTON, DC – Any objective observer of the American political system must wonder why, when the United States confronts the world’s highest COVID-19 death toll and a ravaged economy, US Senate Majority Leader Mitch McConnell will do nothing but confirm outgoing President Donald Trump’s appointees to the federal judiciary. It’s strange behavior.

The explanation is a special-interest lobby operating largely out of public view – a political creature that has stalked America’s judiciary for generations and is determined to capture as much control as it can, while it can.

In fairness, McConnell is not the only one acting strangely. In the fall of 2016, Republicans invented the convenient “principle” that the Senate shouldn’t confirm Supreme Court nominees in an election year, and blocked President Barack Obama’s nominee, the well-respected Merrick Garland. Senator Lindsey Graham was unequivocal about the precedent: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.”

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0 Comments on this paragraph, 22 in all 22 Comments on this article

Cary Fraser Dec 27, 2020

The Republican party's long-term agenda of transforming the Court into a branch of the Republican party has been fully exposed in the McConnell-Trump era.
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mtcmom222a Loppy Dec 1, 2020

Nice Try...but you got it backwards..the Democrats have been trying to manipulate the Courts to be the Legislative part of government for 50 years...because the majority of Americans don't want crazy Democrat's policies...now having failed at even monopolizing the Court System...they have no where to go.
The Democrats have become the party of Billionaires and Crazy Rich White Liberals..while the Republicans are the party of low income, middle income employees and small business....just look at the democrats biggest donors :Ultra Rich Technology People, the Fraudulent Green Energy Industry ( if green energy was lower cost & better than fossil fuels..private investors..not the taxpayers would be financing it), Rich Environmental Nazis, Corporate Media, et al. The evidence is hiding in plain sight...
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Henry Miller Nov 30, 2020

Oh the self-righteousness! Like the Democrats would have acted any differently with respect to a conservative vacancy on the Court had the situation been reversed!

All's fair in love and war, even political war, especially when the stakes are the survival of what America was intended to be versus the incessant efforts of the Democrats to replace individual freedom with government dominance and self-reliance with supine dependency.

The Bill of Rights is what's protects American's from their own government. The Democrats, of course, in their self-righteous self-regard, not only reject the necessity of those protections but scheme mightily to gut and ignore them. They've recently proven their contempt for religion, they've been determined for years to disarm Americans, they've abused the power of government to spy on political opponents, and they scheme incessantly to grow the leviathan of the federal government insanely beyond the limits the Founders intended.

And as the Bill of Rights protect us, the Courts are charged with protecting those rights, and that's why the Democrats are so outraged. They don't care about "norms," they care only about eliminating our defences against the perversions they would wreak on America.
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Lothar Baier Nov 30, 2020

This comment was removed by a moderator. Replies to this comment may also be deleted. Please note that we moderate comments to ensure the conversation remains topically relevant. We appreciate well-informed comments and welcome your criticism and insight. Please be civil and avoid name-calling and ad hominem remarks.
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Lothar Baier Nov 30, 2020

and of course the left is all innocent and unbiased in their selection of judicial nominees , try out as a comedian sheldon ! trial judges have a fairly simple task , they preside over a trial and once the jury renders a verdict decide on a sentence that fits the crime , their place is not to figure out whether or not the defendant is guilty nor do they have to be concerned about the impact a sentence imposed has on the convict or his family .
On the supreme court things become even easier, the judges sole responsibility as outlined in the constitution is to check whether a law that is litigated meets constitutional muster - thats it , period over and out ! it is NOT the place of a judge to worry about the motivations behind a law nor how the law may affect somebody !
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Ted Peters Nov 30, 2020

This comment was removed by a moderator. Replies to this comment may also be deleted. Please note that we moderate comments to ensure the conversation remains topically relevant. We appreciate well-informed comments and welcome your criticism and insight. Please be civil and avoid name-calling and ad hominem remarks.
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Eric Friel Nov 30, 2020

This is not "strange" behavior and it has not been so since the closing months of 2014. Later November and December is when Harry Reid, the former majority leader, rammed through a number of Obama's appointees. This came right after he scrapped the filibuster for lower judicial positions.

But hey, since we tend to have the memories of scaled fish, I see no reason why we cannot pretend that this behavior is somehow to and unprecedented.
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Judd Kahn Nov 29, 2020

Bravo, Senator Whitehouse. Great during the Coney Bryant hearing. Great now. And for anyone who wants more detail and more history, read Kurt Anderson's Evil Geniuses. He has many threads to this story, beautifully tied together.
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Peter Schaeffer Nov 29, 2020

What this really comes down to is that the left wants the courts to do its dirty work for it. They (the left) know that the public won't vote the policies of the extreme left. So the courts (when the left controls them) can be used to subvert and attack democracy.

Some history will help here. The Federal courts imposed School Busing for Racial Quotas for decades. The public bitterly opposed Racial School Busing (which the left worshiped) and of course Racial School Busing was a complete failure. However, by getting the courts to do its dirty work, the left got away with trashing democracy.

Now of course, its 'global warming'. Once again, the left can't get the public to supports its policies. So once again, the left wants to use the courts to trash democracy.

Some things don't change.
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David Lentz Nov 29, 2020

I find the idea of a people’s court such as existed in Athens at Socrates time interesting. 555 jurors who are citizens
It’s always condemned as it put Socrates to death
But for example it could put on trial the Supreme Court justices who approved Citizens United. That decision was obviously idiotic to any person with any capacity for reason. Since the Supreme Court itself is created by human thought it is a person with limited liability according to the courts logic
So a corporation has no liability for murder?
So the 555 member jury could try the Supreme Court and determine their punishment
Lifetime appointments would take on a new dimension
America is a farce
It can only end in tyranny or revolution
Hilarious
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j. von Hettlingen Nov 28, 2020

Senator Sheldon Whitehouse rails against interest groups in the US that capture the courts, and wield major influence on the judges’ decision making. Unlike lawmakers and the president, judges do not need to face elections and be at the mercy of voters. Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the US Senate, as stated in the Constitution.
The author says it all started decades ago, when “a wealthy group of corporate interests and right-wing ideologues recognized that the unpopular policies they sought - reducing voters’ access to the polls, flooding elections with unlimited corporate money, and unwinding vital environmental protections - faced steady headwinds in the elected branches of government. But courts, stocked with amenable judges and presented with the right cases, could reliably deliver political wins without answering to the voting public.”
Since 2016, Trump and Senate Republicans have installed die-hard conservatives in lifetime judicial appointments, packing the courts in favour of their agenda. When the liberal Supreme Court Justice Ruth Bader Ginsburg passed away in September, Senate majority leader, Mitch McConnell wasted no time to fill the vacancy by confirming Trump’s appointee, Amy Coney Barrett - the third Supreme Court justice in three years. Now six out of the nine justices make a “new 6-3 Republican-appointed majority.”
Republicans’ hypocrisy had evoked widespread criticism. After the death of the conservative Justice Antonin Scalia in 2016, McConnell blocked Obama’s nominee, the well-respected Merrick Garland. Senator Lindsey Graham urged the Senate not to fill a Supreme Court seat during an election year. Yet he had reversed course on his 2016 declaration and supported Trump’s drive to fill Bader-Ginsburg’s bench seat immediately.
Republicans have been fighting an ideological battle against the progressives. McConnell said in June, before the vote on the Trump administration’s two-hundredth judge. “It’s a victory for the rule of law and for the Constitution itself.” When Obama was still in office, McConnell and his party blocked the vast majority of Obama’s nominees. The confirmation rate of Obama’s nominees decreased from nearly 90% down to 28%, after the GOP won the Senate in 2014.
The Federalist Society - a hugely powerful, nationwide organisation of conservative lawyers - has been instrumental in helping Trump pick his Supreme Court nominees. Its growing clout has been aided by millions of dark money from wealthy donors like John M. Olin, Lynde and Harry Bradley, Sarah Scaife, and Charles G. Koch foundations - some of the largest funders of right-wing groups in the country. Some remain anonymous, but they have effective control over GOP judicial appointments.
The author points out how tens of millions had been spent on getting the three nominees - Neil Gorsuch ($17 million), Brett Kavanaugh ($17 million) and Amy Coney Barrett ($15 million) - into the Supreme Court in recent years. One individual “spent nearly $50 million to influence the makeup of the US Supreme Court. And we have no idea who that person is, much less what business he or she may have before the Court.”
This week, the country got its first glimpse of how profoundly Trump had transformed the Supreme Court. The justices issued six opinions in upholding challenges from churches and synagogues to state pandemic restrictions on religious services. Amy Coney Barrett - highly religious and conservative - cast the decisive vote in a 5-to-4 ruling that rejected restrictions on religious services in New York imposed by Gov. Andrew M. Cuomo to contain the spread of Covid-19.
Coney Barrett shoved the chief justice into dissent with the court’s three remaining liberals. Chief Justice John G. Roberts Jr. was once highly powerful, holding the controlling vote in closely divided cases and almost never finding himself in dissent. But her arrival late last month has swung the Supreme Court to the right, dealing the chief justice a body blow. Now Roberts can no longer tip the scales in certain rulings.
The conservative justices are so ideological that they no longer can be sensible and pragmatic, putting public health interests before particular interests, be they partisan, religious, corporate or social. The ruling was at odds with earlier ones in cases from California and Nevada issued before Justice Ginsburg’s death in September. Those decisions upheld restrictions on church services by 5-to-4 votes, with Chief Justice Roberts in the majority.
Many women now fear that the pro-life activist, Coney Barrett, would overturn the landmark 1973 Supreme Court case Roe v. Wade, which gave women the right to choose an abortion.
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Ian Maitland Nov 26, 2020

Conspiracy theories don't get much more crass than this. I suppose the lawlessness of the Warren (and even Burger) Court had nothing to do with the founding of the Federalist Society and the growth of its influence. If you can't win the argument, then call the other side names like "corporate shills," complete with the usual obligatory references to smoke-filled rooms.

In fact, isn't it precisely because the elected branches of government stood down and allowed runaway courts to "reliab[ly] deliver[ed] political wins [to Whitehouse's side] without answering to voters" that originalism -- itself a codification of what how all fair-minded people think the Court should decide cases -- arose to be the reigning doctrine of constitutional interpretation. In her eulogy for Justice Antonin Scalia, Justice Elena Kagan asked whether anyone questions the need to prevent judges from acting on their personal policy preferences. "If the answer is 'no' — and the answer is no, or mostly no — Justice Scalia deserves much of the credit." The answer is no, full stop, but that is a great place to start.

Whitehouse's charge is best directed at . . . Whitehouse himself. His jurisprudence can be boiled down to the following proposition: The Supreme Court must make sure that what earlier courts stole stays stolen. That is why he, and his Democratic colleagues on the Senate Judiciary committee endlessly badgered Amy Coney Barrett to state her political beliefs. For them, the Court is about politics, their politics. Barrett courteously declined their invitation, and she stated that, as a judge, she would interpret the Constitution as law, "with the meaning it had at the time and[she wouldn't] infuse her own meaning into it."

Whitehouse needs to fess up. He didn't against Barrett's confirmation because she is a capitalist tool. That is a cover. He voted against her because he's afraid that she will keep her promise.
- Douglas Knauer Nov 27, 2020
  
  I want to thumbs up your comment, Mr. Maitland. Sheldon Whitehouse added no value to the confirmation of Justice Barrett, but he did show a certain political party's worries about her constitutional philosophy given Congress' laughable inability to do its job.
  - Mirek Fatyga Nov 28, 2020
    
    https://law.justia.com/cases/federal/appellate-courts/F3/43/357/552500/
    
    https://www.cir-usa.org/2003/06/prof-maitland-settles-his-case-against-u-minnesota/
    
    there is no guarantee that people here comment under their own name. Nonetheless, judging from the tone of the comment, it is a fair guess.
    
    Even if you agree with his animosity towards affirmative action as an injustice personally to him, two wrongs do not make a right.
    
    Think about this, before you thumbs up.
    - Douglas Knauer Nov 30, 2020
      
      I read nothing in Mr. Maitland's posting about affirmative action. You have some kind of personal bias that you are reading into it and your links were irrelevant to the topic.
      
      I support and 'thumbs up' his statement about the anti-constitutional use of the courts to legislate, and the fear of some politicians that this avenue may be foreclosed in the future by recent SCOTUS appointments.
      - Mirek Fatyga Nov 30, 2020
        
        "Whitehouse's charge is best directed at . . . Whitehouse himself. His jurisprudence can be boiled down to the following proposition: The Supreme Court must make sure that what earlier courts stole stays stolen."
        
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Kurt Kristensen Nov 26, 2020

As long as our legal definition of corporate 'hood' enables a personal, individual standing equal to those vested by the constitution in a single human being, corporations with unlimited access to funds, attorneys and shelter foundations that endure for generations, our system of democracy will continue to crumble.

Shedding more light on all things 'political' is an idealistic proposal, however, unless it is organizationally supported -for generations-human memory soon forgets to pay attention. Further, with news media increasingly controlled by a very small number of corporate entities 'the light' shed may never be a fully disclosed and open public discussion.

Perhaps, a commitment to 'never voting for any incumbent politician at any level' would be an effective strategy for returning 'serving' members of our local, state-wide and national communities to our immediate neighborhood. They would be able to serve, upon their return to their ordinary lives, as a fountain of information, strategies and wisdom into current proposals facing all of us at local levels, state levels and national levels.

Paired with a 'Sanders-style' ability to mobilize millions of $25 individual funds to protect our democracy, voters might have a chance to overcome the well-funded corporate/party machinery institutionalized in both political parties.

Further, transitioning to a completely autonomous national voting system outside the reach of all political funding, and beyond the destructive party dominated 're-districting' process, with 100% vote-by-mail, will be necessary before America, post-the-2020 national election, can stand proudly as an international model of liberty, justice and freedom for all. Oregon's model of voting by mail stands out as a robust system worthy of national adoption.

Finally, looking at the judicial system, perhaps it's time we consider abandoning the silly presidential election of candidates 'picked-and-plucked' by the two political parties and simply vote for a presidential candidate with no party affiliation. S/he would, perhaps be able to guide our country into the future based on the ideals expressed in the Constitution of the United States of America. Netflix produced an interesting series entitled 'Designated Survivor' that looked at the negative power politics that we are destined to bequeath our children as long as the Democratic and Republican Party systems determine who we can vote for to lead our country.
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David Donald Nov 26, 2020

Sunlight (meaningful, publicly accessible information) is indeed necessary. A suggestion: today, legal practice uses machine learning to trawl through judicial decisions seeking correlations and spitting out reports mapping the law. Once set up, running such a system is cheap (the data is free and computing power is plentiful). It would be possible for a modest NGO to set up such an analytical model correlating published federal court decisions with donor interests and categorizing them clearly on a public website. This would make even obscure decisions supporting influential donors almost immediately visible, which might make a judge think twice about giving donors a helping hand, and could also help academics and the public at large argue for reform.
- Michael Public Nov 26, 2020
  
  It could be built, the problem with such things is even though they work great, many people find it difficult to understand them - you put the court papers in as 10 000 features and out spits a single classification : bad finding influenced by donors. How can they trust it? You can quote accuracy ratings of the test data but still they will hesitate. There will always be false positives and false negatives too. General trust in AI is very low at the moment.
  - David Donald Nov 26, 2020
    
    If you look at the time when democracy was first being kicked around as a feasible form of government, literacy rates were soaring (mainly because of mandatory bible reading that then became voluntary philosophy and science pursuits). To reverse that trend, US politicians (mainly from one party) have been gutting schools for decades, while the gaming stations and the internet have given people other things to do with their time. All we can do is keep trying (I advocated communication of information). At some point in the push toward general illiteracy, the system we pretend to aspire toward could become untenable. I guess that's why most contemporary fiction about the future sees a lawless fight of all against all outside of the gates where the elite enjoy the fruits of advanced technology.
    - Michael Public Nov 27, 2020
      
      I can only disagree with one point you make : "most contemporary fiction about the future" Many of them show the opposite, a totalitarian society of pure control of individuals - off the top of my head - 1984, the Matrix, Star Wars to cherry pick some famous examples.
      - David Donald Nov 29, 2020
        
        It's now 2020, so for me "contemporary" would be at least post-2000 (probably newer). Those you mention are still shaped by the last century's fear of and war with Nazi Germany and the USSR.
        
        On pervasive government, I've met plenty of homeless people in Eastern Europe who wouldn't mind going back to the days of a guaranteed, gray flat, but you won't find them writing books or on this elite university blog. Those people generally have less initiative, ambition and aggression than the sleek predators who thrive in free markets. Strong government was invented mostly to counteract strong private power, which is something that seems to be universally forgotten. Today, we love predators and even the image of Trump doesn't make us waver.
        
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Michael Public Nov 25, 2020

"And we have no idea who that person is"
It is Charles. I would say Charles and David, but David is dead - so just Charles.
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