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Trump's Supreme Court Pick Faces Senators' Questions. Aired 1- 1:30p ET.

Aired October 13, 2020 - 13:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SEN. SHELDON WHITEHOUSE (D-RI): So you can start to look at these and you can start to tie them together, the legal groups, all the same funders over and over again.

[13:00:02]

Bringing the cases and providing this orchestrated chorus of amici.

Then the same group also funds the Federalist Society over here. The Washington Post wrote a bit expose' about this and that made Leonard Leo a little hot, a little bit like a burned agent. So he had to jump out and he went off to go and do anonymously-funded voter suppression work.

Guess who jumped in to take over the selection process in this case for Judge Barrett? Carrie Severino made the hop. So once again ties right in together. So Center for Media and Democracy did a little bit more research. Here's a Bradley Foundation memo that they've published.

The Bradley Foundation is reviewing a grant application asking for money for this orchestrated amicus process? And what do they say in the staff recommendation? It is important to orchestrate, their words not mine, important to orchestrate high caliber amicus efforts before the court.

They also note that Bradley has done previous philanthropic investments in the actual underlying legal actions. So Bradley is funding, what do they call? Philanthropically investing in the underlying legal action and then giving money to groups to show up in the orchestrated chorus of amici. That can't be good.

And it goes on. Because they also found this email. This email comes from an individual at the Bradley Foundation and it asks our friend Leonard Leo who used to run the selection process, is there a 501(c)(3) nonprofit to which Bradley could direct any support of the two Supreme Court amicus projects other than Donor Trust. I don't know why they wanted to avoid the reliable identity scrubber Donor's Trust but for some reason they did.

So Leonard Leo writes back on Federalist Society address, so don't tell me that it isn't Federalist Society business, on Federalist Society, on his address he writes back, yes, send it to the Judicial Education Project which could take and allocate the money and guess who works for the Judicial Education Project? Carrie Severino. Who also helps select this nominee running the Trump Federalist Society selection process.

So the connections abound. In the Washington Post article they point out that the Judicial Crisis Network's office is on the same hallway in the same building as the Federalist Society and when they sent the reporter to talk to somebody at Judicial Crisis Network, somebody from the Federalist Society came down to let them up.

This more and more looks like it's not three schemes, but it's one scheme, with the same funders, selecting judges, funding campaigns for the judges and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do.

On the Judicial Crisis Network you've got the Leonard Leo connection, obviously, she hopped in to take over for him with the Federalist Society. You've got the campaigns that I've talked about, where they take $17 million contributions; that's a big check to write, $17 million, to campaign for Supreme Court nominees; no idea who that is or what they got for it. You've got briefs that she wrote.

The Republican senators filed briefs in that NFIB case signed by Ms. Severino, the woman who helped choose this nominee has written briefs for Republican senators attacking the ACA. Don't say the ACA is not an issue here.

And by the way, the Judicial Crisis Network funds the Republican Attorneys General, it funds RAGA, the Republican Attorney Generals Association and it funds individual Republican Attorneys General and guess who the plaintiffs are in the Affordable Care Act case? Republic Attorneys General.

Trump joined them because he didn't want to defend so he's in with the Republican Attorneys General, but here's the Judicial Crisis Network campaigning for Supreme Court nominees, writing briefs for senators against the Affordable Care Act, supporting the Republicans who are bringing this case and leading the selection process for this nominee.

[13:05:01]

Here's the page off the brief. Here's where they are. Mitch McConnell and on through the list; Senator Collins, Senator Cornyn, Senator Hoeven, Senator, who's still here? Marco Rubio.

It's a huge assortment of Republican senators who Carrie Severino wrote a brief for, against, against, against the Affordable Care Act. So this is a, to me, pretty big deal. I've never seen this around any court that I've ever been involved with, where there's this much dark money and this much influence being used.

Here's how the Washington Post sums it up. This is a conservative activist behind-the-scenes campaign to remake the nation's courts and it's a $250 million dark money operation; $250 million is a lot of money to spend if you're not getting anything for it. 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, that's where the Republic Party platform tells us to look at how they want judges to rule to reverse Roe, to reverse the Obamacare cases and to reverse Obergefell and take away gay marriage. That is their stated objective and plan; why not take them at their word?

But there's another piece of it. And that is not what's ahead of us, but what's behind us. The behind us is now 80 cases, Mr. Chairman, 80 cases under Chief Justice Roberts that have these characteristics; one, they were decided five to four by a bare majority. Two, the five- to-four majority was partisan in the sense that not one Democratic appointee joined the five.

I refer to that group as The Roberts Five; it changes a little bit as with Justice Scalia's death, for instance. But there's been a steady Roberts Five that has delivered, now 80 of these decisions -- and the last characteristic of them is that there is an identifiable Republican donor interest in those cases, and in every single case that donor interest won.

It was an 80 to zero, five to four partisan route -- ransacking. And it's important to look at where those case 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. And if you look at those 80 decisions they fall in to four categories over, and over, and over again. One, unlimited and dark money in politics.

Citizens United is the famous one, but it's continued since with McCutcheon and we've got one coming up now. Always the Five for unlimited money in politics, never protecting against dark money in politics, despite the fact that they said it was going to be transparent.

And who wins when you have unlimited dark money in politics? A very small group -- the ones who have unlimited money to spend and a motive to spend it in politics, they win, everybody else loses. And if you're looking at who might be behind this, let's talk about people with unlimited money to spend, and a motive to do it -- we'll see how that goes.

Next, knock the civil jury down, whittle it down to a nub. The civil jury was in the Constitution, in the Bill of Rights, in our darn Declaration of Independence, but it's annoying to big corporate powers, because you can swagger your way as a big corporate power through Congress. You can go and tell the president you put money in to elect what to do.

He'll put your stooges at the EPA. It's all great, until you get to the civil jury because they have an obligation, as you know, Judge Barrett. They have an obligation under the law to be fair to both parties irrespective to both parties irrespective of their size. You can't bribe them, you're not allowed to. It's a crime to tamper with the jury.

It's standard practice to tamper with Congress. And they make decisions based on the law. If you're used to being the boss and swaggering your way around the political side, you don't want to be answerable before a jury.

[13:10:01]

And so one after another these 80 five to four decisions have knocked down, whittled away at the civil jury, a great American institution.

Third, first was unlimited dark money, second was demean and diminish the civil jury, third is weaken regulatory agencies. A lot of this money I'm convinced is polluter money. The Koch Industries is a polluter. The fossil fuel industry is a polluter. Who else would be putting buckets of money in to this and wanting to hide who they are behind donor's trust or other schemes?

And what if -- if you're a big polluter what do you want? You want weak regulatory agencies. You want ones that you can box up and run over to Congress and get your friends to fix things for you in Congress.

Over and over again these decisions are targeted at regulatory agencies to weaken their independence and weaken their strength. And if you're a big polluter a weak regulatory agency is your idea of a good day.

And the last thing is in politics, in voting. Why on earth the court made the decision -- a factual decision, not something appellate courts are ordinarily supposed to make, as I understand it, Judge Barrett. The factual decision that nobody needed to worry about minority voters in preclearance states being discriminated against, or that legislators would try to knock back their ability to vote.

These Five made that founding in Shelby County against bipartisan legislation from both Houses of Congress, hugely passed on no factual record. They just decided that that was a problem that was over.

On no record, with no basis -- because it got them to the results that we then saw. What followed -- state, after state, after state passed voter suppression laws. One so badly targeting African-Americans that two courts said it was surgically tailored to get after minority voters.

And gerrymandering the other great control, bulk gerrymandering, where you go into a state like the Red Map Project did in Ohio and Pennsylvania, and you pack Democrats so tightly in to a few districts that all the others become Republican majority districts.

And in those states you send a delegation to Congress that has a huge majority of Republican members like 13 to five, as I recall, in a state where the Five -- the Party of the Five actually won the popular vote. You've sent a delegation to Congress that is out of step with the popular vote of that state, and court after court figured out how to solve that, and the Supreme Court said nope, five to four again; nope, we're not going to take an interest in that question.

In all of these areas where it's about political power for big special interests and people want to fund campaigns and people want to get their way through politics without actually showing up, doing it behind donors trust and other groups, doing it through these schemes over and over, and over again you see the same thing -- 80 decisions, Judge Barrett. Eighty decisions, an 80 to zero sweep.

I don't think you've tried cases, but some cases the issue was bias and discrimination. And if you're making a bias case, as a trial lawyer, Lindsey Graham is a hell of a good trial lawyer. If he wanted to make a bias case -- Dick Durban is a hell of a good trial lawyer.

If they wanted to make a bias case, and they could show an 80 to zero pattern, A that's admissible and B, I'd love to make that argument to the jury.

I'd be really hard pressed to be the lawyer saying, no 80 to zero is just a bunch of flukes. All five-four, all partisan, all this way. So something is not right around the court. And dark money has a lot to do with it -- special interests has a lot to do with it. DonorsTrust, and whoever is hiding behind DonorsTrust, has a lot to do with it. And the Bradley Foundation orchestrating its amici over at the court has a lot to do with it.

So I thank you, Judge Barrett, for listening to me, now a second time and I think this gives you a chance for you and I to tee up an interesting conversation tomorrow. And I thank my colleagues for hearing me out.

SEN. LINDSEY GRAHAM (R-SC): Thank you, Senator Whitehouse.

Senator Cruz.

[13:15:00]

SEN. TED CRUZ (R-TX): Mr. Chairman, can I put three letters in unanimous (inaudible)?

GRAHAM: Without objection.

CRUZ: Thank you.

Thank you, Mr. Chairman. Judge Barrett, welcome. Congratulations on being nominated. Congratulations on enduring the confirmation proceedings. And I think it is a particularly good thing we've made it through what I guess you would call the top of the line up of the questioning.

And some of the smartest and frankly most effective questioners on the democratic side and I think it speaks volumes that collectively they have had very few questions for you. And virtually none calling into question your credentials which are impeccable. Your record and what I think is -- has been an extraordinary life you've led. So that -- that should be the source of great satisfaction in terms of the scholarly record and judicial record that you've spent a lifetime building.

I want to start by asking you a question, why is the First Amendment's protection of religious liberty; why is that important?

AMY CONEY BARRETT, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: Well I think it's broadly viewed that the framers protected and ratifiers protected the free exercise of religion because for reasons that we all know from history of persecuted religious minorities fleeing to the United States that enshrining that protection it was one of the Bill of Rights because it was considered so fundamental.

CRUZ: And why -- why does that matter to Americans? What difference does that make in anybody's life?

BARRETT: Well I think all of the Bill of Rights, each and every one of them, is important to Americans because we value the constitution including religious liberty.

CRUZ: How about the free speech protections of the First Amendment? Why are those important?

BARRETT: So that minority viewpoints can't be squashed. So that it's not just the majority that can speak popular views and I (ph) -- you don't really need the First Amendment if what you're saying is something that everybody wants to hear. You need it when people are trying to silence you.

CRUZ: And how about the Second Amendment? Why is the right to keep and bear arms important?

BARRETT: Well, you know, we talked about Heller earlier this morning and what Heller tells us is that the Second Amendment protects an individual right to bear arms for self-defense.

CRUZ: Well I think all of those rights and I agree with you the entire Bill of Rights is incredibly important to Americans. I also think what is really striking about this hearing, today and also yesterday, is that senate democrats are not defending what I think is really a radical agenda that they have when it comes to the Bill of Rights.

And the topics they're discussing today have little bearing to the rights that are really at issue and in jeopardy at the Supreme Court. And so let's take a few minutes to go through them.

First of all we've had some discussion of Roe v. Wade. You have declined to give an opinion on a matter that might be pending before the court. That is of course the same answer that every single sitting justice has given when he or she was sitting in the same chair you are. It is mandated by the judicial canons (ph) of ethics. Whether one is a nominee of a democratic president or a republican president that has been the answer that has been given to this committee for decades.

But I do think it is interesting that our democratic colleagues, number one, don't discuss what would actually happen if there came a day on which Roe v. Wade was overruled, which is namely that it would not suddenly become the case that abortion was illegal, but rather it would revert to the status of the laws it's been for nearly 200 years of our nation's history, which is that the question of the permissibility of abortion is a question for elected legislatures at the state level and at the federal level.

And it is difficult to dispute that there are a great many jurisdictions including jurisdictions like California and New York who even if Roe v. Wade were no longer the law of the land, their elected legislatures would almost certainly continue unrestricted access to abortion with virtually no limitations.

[13:20:03]

What I find interesting though is that our Democratic colleagues do not discuss what is really the radical position of the most liberal justices on the Supreme Court, which is that no restrictions whatsoever are permissible when it comes to abortion. Yesterday one of the Democratic senators made reference to the case Gonzales v. Carhart.

I'm quite familiar with that case and I represented Texas and a number of other states as a me-key (ph) in that case. That case concerned the constitutionality of the federal ban on partial-birth abortion. That was legislation that passed Congress who signed in the law that made the really gruesome practice of partial-birth abortion illegal.

Overwhelming majority of Americans believe partial-birth abortion should be prohibited, even those who identify as pro-choice, a significant percentage of Americans don't want to see that gruesome practice allowed. Supreme Court by a vote of five-to-four in Carhart v. Gonzales upheld the federal ban on partial-birth abortion.

That means there were four justices ready to strike it down, ready to conclude that you can't ban partial-birth abortion, that you can't ban late-term abortion and by the way other restrictions that are at question include parental consent laws, parental notification laws.

None of our Democratic colleagues want to talk about the justices they want to see on the court would strike down every single reasonable restriction on unlimited abortion on demand, that the vast majority of Americans support.

How about free speech? Well we've heard quite a bit about free speech; the senator from Rhode Island just gave a long presentation, complete with lots of charts. I'll say a couple of things on free speech. First of all our Democratic colleagues, when they address the issue of so- called dark money and campaign finance contributions, are often deeply, deeply hypocritical and don't address the actual facts that exist.

Here are some facts. Of the top 20 organizations spending money for political speech in the year 2016, 14 of them gave virtually all of their money to Democrats. And another three split their money evenly. So only three of the top 20 gave money to Republicans.

What did that mean in practice? That meant the top 20 Super PAC donors contributed $422 million to Democrats and $189 million to Republicans. Those who give these impassioned speeches against dark money don't mention that their side is funded by dark money with a massive differential.

The senator from Rhode Island talked about big corporate powers, without acknowledging that the contributions from the Fortune 500 in this presidential election overwhelmingly favored Joe Biden and the Democrats. Without acknowledging the contributions from Wall Street in this election, overwhelmingly favor Joe Biden and the Democrats.

There's an awful lot of rhetoric about power. But it gets even more interesting when you look at Supreme Court nominations. We just heard an attack on the Federalist Society, a group that I've been a member of for over 25 years; I joined as a law student. It's a group that brings Conservative, Libertarians, Constitutionalists together to have robust discussions about the Constitution and about the law.

What's interesting is nowhere in the senator from Rhode Island's remarks was any reference to a company called Arabella Advisors, which is a for-profit entity that manages nonprofits including the 1630 Fund and the New Venture Fund. Now what on earth are those?

Those sound like awfully dark and confusing names. Well, according to the Wall Street Journal this Sunday, in the year 2017 and 2018 those entities reported $987.5 million in revenue. That's nearly a billion dollars. We heard a lot of thundering indignation at what was described as $250 million of expenditures. In this case you've got a billion dollars.

The senator from Rhode Island said that that much money, much of which is dark money that we don't know who contributed it, he asked, what are they getting for it?

[13:25:05]

And by the way, one of the things they're getting for it is a group called Demand Justice, a project of those entities, spent five million dollars opposing Justice Brett Kavanaugh and has just launched a seven-figure ad buy opposing her confirmation.

So all of the great umbrage about the corporate interests are spending dark money, is wildly in conflict with the actual facts that the corporate interests that are spending dark money are funding the Democrats by a factor three-to-one or greater. A fact that doesn't ever seem to be acknowledged.

But not only that. What was Citizens United about? And it's interesting, most people at home they've heard about Citizens United, they know it makes Democrats very, very upset. But they don't actually know what the case is about. Citizens United concerns whether or not it was legal to make a movie

criticizing a politician, specifically Citizens United is a small nonprofit organization based here in D.C. that made a movie that was critical of Hillary Clinton. And the Obama Justice Department took the position that it could fine, it could punish Citizens United for daring to make a movie critical of a politician.

The case went all the way to the U.S. Supreme Court. At the Oral Argument there was a moment that was truly chilling. Justice Sam Alito asked the Obama Justice Department, is it your position under your theory of the case that the federal government can ban books?

And the Obama Justice Department responded, "Yes," yes, it is our position that if the books criticize a political candidate, a politician, the federal government can ban books.

As far as I'm concerned that is a terrifying view of the First Amendment. Citizens United was decided five-to-four. By a narrow five- four majority the Supreme Court concluded the First Amendment did not allow the federal government to punish you for making a movie critical of a politician and likewise that the federal government couldn't ban books. Four justices dissented. Four justices were willing to say the federal government can ban books and can ban movies and presumably could ban books as well.

When Hillary Clinton was running for president she explicitly promised every justice she nominated to the court would pledge to overturn Citizens United. By the way, Hillary Clinton said she would demand of her nominee something you have rightly said that this administration has not demanded of you, which is a commitment on any case as to how you will rule. Democrats have shown no compunction in expecting their nominee to make a promise; here's how I'm going to vote on a pending case, judicial ethics be damned.

Or how about the Second Amendment? We've heard some reference to the Heller decision. Senator from Connecticut yesterday talked about "reasonable gun control and gun safety provisions". Well that of course, was not was at stake in the Heller decision.

Number one, majority decision in Heller, Justice Scalia's opinion acknowledges reasonable provisions, things like prohibitions on felons in possession are permissible. Your opinion in the Canter decision likewise acknowledged that restrictions preventing dangerous criminals from receiving firearms are entirely consistent and permissible under the Second Amendment.

But the issue at Heller was much more fundamental. It was whether the Second Amendment protects an individual's right to keep and bear arms at all. The vote in Heller was five-to-four. By a vote of five-to-four the majority struck down the District of Columbia's total prohibitions on owning an operative firearm in the District of Columbia. The argument of the four dissenters was not what our Democratic colleagues talked about here.