Washington, DC – Senate Judiciary Courts Subcommittee Chairman Sheldon Whitehouse (D-RI) released a letter he sent today to members of President Biden’s Commission on the Supreme Court highlighting key questions about special-interest influence over the Court. Whitehouse has made clear the Commission cannot achieve meaningful reform, nor restore Americans’ faith in the Court’s integrity, without fully investigating and understanding the question of dark money’s efforts to capture the Court.
Senators Richard Blumenthal (D-CT) and Mazie Hirono (D-HI) and House Judiciary Courts Subcommittee Chairman Hank Johnson (D-GA) joined Whitehouse in sending the letter.
The letter builds on the work Whitehouse led in the Senate to reveal the special interests seeking to pack the federal judiciary with extremist partisan judges to deliver reliably in their favor. Those efforts culminated in Senate Democrats’ Captured Courts reports, which Majority Leader Chuck Schumer (D-NY) shared with the Commission earlier this month.
Full text of Whitehouse’s letter is below. You can download it here.
Presidential Commission on the Supreme Court of the United States
The White House
1600 Pennsylvania Ave. NW
Washington, D.C. 20500
May 18, 2021
Dear Commissioners:
Congratulations on your appointment to the Presidential Commission on the Supreme Court of the United States.
We understand that the Commission’s “purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”[1] To that end, we urge that the issues at the Supreme Court your Commission is tasked to consider cannot be addressed without grappling with pressing judicial ethics concerns, including the role of secretive special-interest influence in and around the Court.
By its own words, the last administration “insourced”[2] its judicial selection process to a single, anonymously funded outside group, the Federalist Society, which the former president acknowledged “picked” his judges.[3] A majority of the Court’s sitting justices are active members of this group. The commanding role of this private organization in judicial selection coincided with enormous anonymous donations to the group.
The players at the center of this insourced judicial selection operation were also instrumental in raising multi-million-dollar anonymous donations to fund political ads to support confirmation of the selected nominees. These same forces appear to be behind judicial lobbying campaigns conducted through arrays of amicus curiae briefs, also fueled by massive anonymous donations, often with common donors behind multiple briefs.
As we have argued elsewhere, the Roberts Court has produced a run of at least 80 partisan 5-4 decisions, each benefiting an easily identified Republican donor interest.[4] Meanwhile, the Court has refused to bind itself to the code of ethical conduct applicable to all other federal judges, and has interpreted disclosure rules to provide less information than provided by other judges, by Members of Congress, or by senior executive officials. This is a potentially toxic combination. Secret private influence over the appointment and confirmation process, orchestrated flotillas of secretly-funded amici curiae, and weak or nonexistent ethical guardrails, particularly as a combination, raise issues squarely within this Commission’s important charge. There is every reason to believe that most or all of the anonymous funding behind this effort comes from a small group of big donors. This set of interwoven problems connected by secret funding is likely the primary driving force behind the degradation of confidence that necessitated this Commission’s formation.
Against this backdrop, we urge you to consider the following questions, and to invite such witnesses and secure such evidence as may be necessary to inform your judgment:
1. In American history, has a private organization ever been given the degree of control over judicial selections obtained in recent years by the judicial selection group operating within the Federalist Society? The evidence of this control is abundant.[5] Secrecy likely obscures much more. Such a private role in a core constitutional, presidential function is unprecedented, and the Commission should fully understand the relationship between this judicial section operation and outside influence by private, secretly funded organizations.
2. If a country were to take the unique step to designate a private organization to control judicial selections, what safeguards would be prudent to protect against abuse? Were any such safeguards put in place by the Trump Administration or by the Federalist Society? For instance, were any disclosure or transparency requirements established? Were any conflicts of interest rules or firewalls implemented? Were there any restrictions or defenses against a quid pro quo being paid to the private organization (or any participant in the group) in return for a voice in judicial selection?
3. The Federalist Society, while it exerted significant control over judicial selection, received massive donations—some in the tens of millions of dollars.[6] The multi-million dollar donors are kept anonymous and there are no known rules or limitations that would prevent big donors buying access to the judicial selection process. The Commission should inquire into the connection between donors who gave massive donations and the judicial selection process.
4. The secrecy maintained by the Federalist Society prevents analysis of the relationship between the judicial selection operation and cases that may have been pending before the courts to which appointments were made. If a party to a proceeding were involved in selecting and supporting the nomination of the judge who would hear their case, or if a party is regularly enough before courts to anticipate such a proceeding and is involved in the judicial selection process, the other parties certainly deserve to know of the secret arrangement so it can be appropriately addressed in the proceeding. Moreover, the secrecy itself is highly problematic, more generally, as it prevents other judges of the court from appropriately handling case assignments and recusals, and undermines the public’s faith in the fair administration of the law. The Commission should determine whether or not there was overlap between major donors and cases, and whether or not major donors were regular litigants, in the Supreme Court or other courts.
5. The process of jury selection is carefully monitored to assure the parties a fair hearing and decision. Yet, in contrast, the processes for judicial selection and nomination are largely unsupervised and opaque. The Commission should consider how the process of selecting and nominating judges should compare to the process of selecting jurors, so as to prevent parties being able to acquire sympathetic jurors or judges and thereby influence the outcome of cases. In particular, the Commission should consider how the process of big donors making large and secret contributions to a private organization with significant influence over judicial appointments squares with the processes used to assure a fair and dispassionate jury. A jury is empaneled only once, and is discharged at the end of the case. Even so, we carefully police the integrity of jury selection, though only for one case. A repeat litigant can obtain far greater advantage by securing judges with sympathies favorable to its positions, as judges may persist in office for decades.
6. The Washington Post article cited above reported that the judicial selection operation conducted through the Federalist Society and Leonard Leo received $250 million dollars in donations between 2014 and 2017.[7] It strains credulity that there was no effort by donors to acquire influence over judicial selection given expenditures of that magnitude. The Commission should ask the Post reporters for a briefing on their findings, and pursue the questions raised.
7. The Judicial Crisis Network received donations, some well in excess of ten million dollars, to run advertising campaigns for selected nominees.[8] Given the opacity of the donations, for all we know, these several donations over ten million dollars may have come from a single donor. They sum to over fifty million dollars.[9] It is unreasonable to assume that an expenditure of that magnitude was done without expectation of benefit. The Commission should inquire about these donations, the identity and interests of the donors to the Judicial Crisis Network, and the link to cases and issues before the Supreme Court.
8. The Federalist Society and the Judicial Crisis Network share a hallway in the same office building.[10] After the Federalist Society Executive Vice President who oversaw the judicial selection operation was identified in the Washington Post article, he left for another group and was replaced in his judicial selection function by the top official of the Judicial Crisis Network.[11] Given the known influence of these organizations on judicial selection, the Commission should investigate how closely the Judicial Crisis Network interacted with the Federalist Society judicial selection operation. In light of the limited information available about the operations of these organizations, a number of important questions warrant investigation and scrutiny: Were they in fact the same operation behind their corporate veils? Were their major donors the same? How were the major donations arranged? What communications were had or understandings reached by and between each organization with whomever gave as much as fifty million dollars for advertising campaigns to support the selected candidates?
9. Under Chief Justice Roberts’ tenure, we count at least 80 decisions that were decided 5-4, where the majority of 5 was comprised entirely of justices appointed by Republican Presidents, and where the decision advantaged a significant Republican Party donor interest.[12] Eighty decisions would appear to constitute a pattern and in many of these cases, it appears that traditional judicially conservative doctrines were eschewed to reach the donor-favored outcome: doctrines like stare decisis, originalism, textualism, minimalism, and respect for the elected branches. The Commission should look at whether and to what extent conservative judicial doctrines explain the 80 cases’ results.
10. Factfinding is not the ordinary role of an appellate court. In prominent cases affecting the political process (like Citizens United and Shelby County), however, the Supreme Court has embarked on factfinding outside of the legislative or judicial records. The facts found in those cases were considered erroneous by many at the time of the decisions; they clearly did not meet the standards of “taking judicial notice,” and they were not supported by the legislative or judicial records in those cases.[13] Events subsequent to the decisions then disproved the found facts beyond dispute.[14] Having made decisions grounded on questionable facts, when those facts were later conclusively proven by events to be wrong, the Court then made no effort to clean up its errors. Should Congress then have a role in correcting these factual errors? This raises notable separation of powers issues. May the Executive Branch ignore decisions when it can show they were based on incorrect factfinding? What is the remedy? Should the Court clean up its own errors? If so, how and when? Or should decisions based on clearly erroneous factual premises be allowed to stand, notwithstanding the plain error, with all of government helpless to correct the wrong?[15]
11. The courts face an explosion of amicus curiae engagement.[16] When should parties and judges know who is behind an amicus brief? At what point is an amicus filer really a front group for the actual interest to hide behind? Does Supreme Court Rule 37.6 (and Federal Rule of Appellate Procedure 29(a)) as presently applied adequately disclose to the parties, the Court and the public the true interest behind the amicus filing? If the real party in interest is not disclosed, how can the parties, the Court, and the public evaluate the motive and merits of the filing? When amici flood the Court, how can the parties, the Court and the public know of the orchestration and coordination without adequate disclosure?[17]
12. The justices of the Supreme Court appear to interpret their disclosure requirements regarding gifts, travel, hospitality and other emoluments to require less disclosure than is required is required of Court of Appeals judges. The interpretation of its disclosure requirements by the Court requires less disclosure than is required of Cabinet members and other senior officials in the Executive branch, and less disclosure than is required of elected members of the Legislative branch.[18] Though the justices purport to abide by the financial disclosure guidelines promulgated by the Judicial Conference Committee on Codes of Conduct, these guidelines are not binding on them. Why should the highest court require less disclosure of its members than the highest ranks of the other branches? Why should the highest court in the land have the lowest standard of transparency? Court administrative and security records over the past decade could illuminate for the Commission the scale of unreported gifts, travel, and hospitality.
