Sen. Sheldon Whitehouse (D-R.I.) used his opening remarks on Tuesday at the confirmation hearing of Judge Brett Kavanaugh to a lifetime seat on the Supreme Court to present a grand unified theory of the corruption of the court under Chief Justice John Roberts and how Kavanaugh’s confirmation would make it worse.
The court is in the process of being seized by a reactionary movement, Whitehouse argued, that began with the appointment of Roberts in 2005. The five-vote Republican-appointed majority, which Whitehouse called the “Roberts Five,” routinely votes together to advance the private and public power of corporations and the political interests of the Republican Party.
The only somewhat weak link in this bloc was the now-retired Justice Anthony Kennedy, whom Kavanaugh was chosen to replace. Kennedy was the Republican-appointed justice who most commonly bucked conservative interest groups and sided with the four-vote liberal minority on closely decided cases. Kavanaugh, however, comes straight out of the very conservative movement that dominates the court and served for much of his career as a political actor. His confirmation will install a five-vote majority with a coherent ideology to roll back protections for women, minorities, workers, defendants and consumers while advancing the political interests of the Republican Party and its wealthy backers.
This court majority was created through a systematic, well-funded effort by wealthy conservatives and corporations to install ideologically like-minded justices on the bench, Whitehouse said.
A network of conservative and corporate activist groups, largely funded by anonymous donations from billionaires and large corporations, spend money to elect a Republican president and majority in Congress. Those groups and their anonymous donors fund conservative legal organizations like the Federalist Society to groom conservative jurists to be nominated as judges. In the case of Kavanaugh and Justice Neil Gorsuch, the Federalist Society and its head, Leonard Leo, curated a list of nominees and helped President Donald Trump make the final pick. Then the same activist groups and donors pay for the multimillion-dollar advertising campaigns to promote those very judicial nominations through nonprofit groups like the Judicial Crisis Network. And finally, when their chosen justices reach the bench, these groups write amicus briefs that the justices draw from for the basis of their judgments to give the anonymous billionaires and corporations funding them more power in the private sphere and the Republican Party that those donors fund more advantages to win elections. The source of the funding for these groups remains largely secret.
“No wonder the American people feel the game is rigged,” Whitehouse said.
The Roberts Five consistently vote to promote a “big Republican corporate or partisan interest,” Whitehouse argued. There have been 79 cases in which the five conservative justices voted as a bloc and they were not joined by any of the liberals. Seventy-three of these cases, 92 percent of them, advanced Republican- or corporate-supported interests.
These decisions have allowed states to enact laws to reduce the political power of racial minorities by keeping them away from elections and off the voting rolls. The rulings have empowered the rich and corporations to fund elections even more than before. And the decisions have made it harder for public employee unions — major backers of the Democratic Party and progressive policies — to collect dues.
While these victories help Republicans win and maintain political power, the biggest beneficiaries of the Roberts Five’s ideological bent are private corporations.
“The U.S. Chamber of Commerce is the biggest corporate lobby of them all,” Whitehouse said. “It’s the mouthpiece for Big Coal, Big Oil, Big Tobacco, Big Pharma, Big Guns, you name it — and this year, with Justice Gorsuch riding with the Roberts Five, the Chamber won nine of the 10 cases it weighed in on.”
“The Roberts Five since 2006 has given the Chamber more than three-quarters of their total votes,” he added. “This year in civil cases they voted for the Chamber’s position nearly 90 percent of the time.”
This five-vote bloc has also voted consistently to gut civil rights laws, prevent defendants from getting a fair hearing in court, make it harder to challenge the death penalty, make it easier for states to target immigrants, expand gun rights and make it harder to get an abortion and, most recently, upheld Trump’s ban on citizens from eight Muslim-majority countries from entering the U.S.
How would Kavanaugh fit into this?
“On the D.C. Circuit, Kavanaugh showed his readiness to join the Roberts Five with big political wins for Republican and corporate interests — unleashing special interest money into elections, protecting corporations from liability, helping polluters pollute, striking down common-sense gun regulations, keeping injured plaintiffs out of court and, perhaps most important for the current occupant of the Oval Office, expounding a nearly limitless vision of presidential immunity from the law,” Whitehouse said.
Kavanaugh, as a judge for the Court of Appeals for the District of Columbia Circuit, in the 22 cases that he was in a 2-1 majority, he sided 91 percent of the time with conservative activist groups that filed amicus briefs.
“When does a pattern prove bias?” Whitehouse asked.
The pattern of this court supporting Republican Party and corporate interests ― backed by the same donors who advocated for their confirmation ― reveals Kavanaugh’s confirmation process to be “a sham,” according to Whitehouse.
Just look at Roberts, Whitehouse says. As a White House lawyer for George W. Bush, Kavanaugh successfully oversaw the nomination and confirmation of Roberts as the chief justice. In his hearing, Roberts declared, “My job is to call balls and strikes and not to pitch or bat.” And yet the record of the Roberts Court is one that prefers to call balls for Republican Party and corporate interests.
Whitehouse concluded, “The sad fact is that there is no consequence for telling the committee fairy tales about stare decisis [adhering to previous decisions] and then riding off with the Roberts Five, trampling across whatever precedent gets in the way of letting those big Republican interests keep winning 5-4 partisan decisions.”