The last three Supreme Court confirmation hearings have been a disaster for the Democrats. Mitch McConnell and the Republican Party were able to confirm all of Donald Trump’s nominees: Neil Gorsuch, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barrett. These three justices now make up a third of the Supreme Court, and none of them should be on the bench.
Gorsuch was nominated by Trump in 2017 to replace Antonin Scalia after the Senate’s Republican majority refused to hold a hearing on Barack Obama’s nominee, Merrick Garland, for 293 days. The Republicans’ refusal to give Garland an up-or-down vote was a dereliction of the Senate’s constitutional duty.
Kavanaugh was a corrupt ethical disaster long before Dr. Christine Blasey Ford accused him of attempted rape. Kavanaugh has also been accused of lying under oath, using stolen documents to prepare witnesses, and racking up gambling debts. And when he was confronted by accusations of attempted rape—as well as exposing himself to a former classmate—he responded by screaming at the senators and threatening lifelong judicial retribution against his enemies. Kavanaugh is to my mind the worst human to sit on the court in my lifetime (and I am well aware of his odious competition), but was confirmed despite the lowest approval ratings of any nominee since Robert Bork.
Then, finally, there’s Barrett. She was confirmed after the election had already begun to replace the man who nominated her. Her nomination soirée—which was held before her predecessor, Ruth Bader Ginsburg, was even buried—served as a White House super-spreader event. She was confirmed with just 51 votes, and two of the Republicans who voted for her were appointed senators, not popular-vote winners, who were in the midst of unsuccessful reelection campaigns themselves. Aside from the rank hypocrisy shown by Republicans who voted for Barrett but refused even to give Garland a hearing, Barrett’s confirmation is the equivalent of renters tearing up the floorboards once they realize they’re not getting their security deposit back.
The Democrats failed to stop any of these people. They’ve failed to stop most of Trump and McConnell’s appointments to the lower courts as well, despite the ceaseless parade of unqualified and extremist jurists Republicans keep pushing onto the federal courts, even now during the lame-duck session.
I am aware that the Democrats are the minority party in the Senate. I understand that there might have been little they could do to stop McConnell’s judicial onslaught. But it should be obvious by now that what the Democrats have been doing—what they are still doing—just isn’t working. It is long past time for new leadership on the Senate Judiciary Committee.
The current minority leader on Judiciary is Senator Dianne Feinstein of California. She has indicated that she will not seek leadership of the committee in the next Congress. I have watched a lot of Senate Judiciary hearings over the past 10 years. Suffice it to say that I am happy Feinstein has decided voluntarily to relinquish this power.
Next in line by seniority is Senator Dick Durbin of Illinois, followed by Senator Sheldon Whitehouse of Rhode Island. Both have indicated they want the job. Durbin is already the Senate minority whip and has sat on the Senate Judiciary Committee for 22 years. He’s shown himself to be an able questioner who understands how a judge’s opinions or law review articles link up with their larger judicial philosophy.
But Durbin’s approach toward judicial nominees is entirely traditional. He uses his 30-minute blocks of time to ask smart questions about the nominee’s philosophy or qualifications. The nominee spends those 30 minutes fencing with Durbin, trying very hard not to say anything of consequence. If everything goes perfectly for Durbin and the Democrats, the Republican nominee reveals him- or herself to be… a Republican. It turns out that judges nominated by Republicans don’t believe in abortion rights, or gay rights, or really any rights other than the right of Christians to discriminate against everybody else.
But this traditional approach has failed. Highlighting the fact that Republican nominees oppose Roe v. Wade, when the president who nominated them literally promised to appoint only those judges who oppose a woman’s right to choose, is not all that helpful. Pointing out that a Republican nominee is a lemon, when Republicans are picking their nominees right off the lemon tree, is kind of a giant waste of everybody’s time.
Senator Whitehouse, on the other hand, goes after the tree. Whitehouse isn’t distracted by the ideological perversions of each particular nominee; instead, he keeps his focus on the corrupt machine that manufactures Republican judges so that they can produce Republican decisions that are beneficial to Republican interests.
People like Gorsuch, Kavanaugh, and Barrett did not just fall out of the sky when Trump and McConnell needed them. They were created by a judicial-industrial complex that includes the Federalist Society, the Heritage Foundation, and the Judicial Crisis Network. They’ve been manufactured to reverse liberal democratic rights in specific ways: They support targeted restrictions on abortion providers (TRAP laws); they subvert minority rights through the denial of 14th Amendment claims and rejection of substantive due process; they read the Free Exercise clause of the First Amendment as a triumph of God’s bigotry over secular laws.
Whitehouse understands this and instead focuses his line of inquiry—and attack—on the entire Republican judicial system. Whitehouse is less concerned with how Republican nominees think about the law, because he already knows the answer. Everybody honest does. Republican nominees think the law says whatever the Republican agenda needs it to say to advance their policy goals. Instead of trying to drag that obvious point out of them (and letting the nominees lie to him about it), Whitehouse focuses on who is setting that Republican agenda in the first place. He drills down on how much those dark forces have invested in the particular nominee, and what kind of return they expect on their investment.
Whitehouse’s questioning of Amy Barrett was instructive. For starters, he didn’t actually ask her any questions. Why would he? All she was going to do was lie or repeat impeccably rehearsed nonanswers to every question. Instead, Whitehouse said, “There is a lot of hard-to-explain hypocrisy and rush taking place right now, and my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows.” Then he tried to deconstruct the entire network of dark-money donors that makes the Republican judicial machine go.
He treated Barrett like the least important person in the room at her own confirmation hearing. Which she was. There are Republican donors who have put up with the entire crass, odious, and deathly Trump experience just so they could get judges like Barrett on the court. Whitehouse, at least, tried to show the people why.
Maybe that strategy won’t work any better for Democrats than what they’ve been doing. Maybe there truly is nothing that can make enough Republican senators stop voting for judges who will most ruthlessly pursue the GOP agenda. Maybe there is nothing that can be done to make regular citizens and progressive activists fight these judicial nominees like the fate of the entire polity depended on it.
But it’s worth a shot. What we have been doing has repeatedly, utterly failed. It couldn’t hurt to try something new.
All of this assumes that Democrats are in the minority again in the Senate. All of this contemplates a more effective way for Democrats to fight a losing battle. But with the two runoffs in Georgia, and a favorable Senate map in 2022, there is still a chance that at some point the Democrats will hold a majority in the Senate during the Biden administration. And Sheldon Whitehouse as Senate Judiciary chair would be a sight to see.
It was Senator Whitehouse who sent a “friend of the court” brief to the Supreme Court last term, when the court last heard a major gun regulation case. His letter warned them that the rest of the country was paying attention to what they’re doing. He wrote, “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.” Whitehouse regularly files amicus briefs to the Supreme Court.
Whitehouse, unlike many of his colleagues, is unwilling to indulge in the legal fiction that the court is an “apolitical” branch. He files those briefs, highlights the terrifying right-wing arguments of the other side, and even talks tough to the court because he knows what the court is doing and understands that transparency is the best way to stop them.
Armed with a chairmanship of the committee and a majority in the Senate, Whitehouse could be trusted to do whatever he could to bring ethical transparency not just to the judicial nominations process but to the Supreme Court itself. He believes that if the American people knew who was buying the courts, they’d demand better judges. Whitehouse has been one of the senators who is constantly on the case about ethics reform for judges as an attempt to get the corrupting influence of the Federalist Society out of the federal courts.
I imagine Senator Whitehouse, Chairman Whitehouse, would try to change that. The first step in defeating the Republican machine is getting people to understand that it exists.
I have seen Democrats fight Republican nominees in the same way for 30 years. It worked with Robert Bork and then, nobody else. Republicans updated their game plan and have never looked back. I need Democrats to give Whitehouse an opportunity to fight Republicans nominees in a new way. As Abraham Lincoln once said of Ulysses S. Grant: “I cannot spare this man. He fights.”