Meet the Press - May 28, 2023
Interview
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Thank you.
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I think it would be better for the country if the Supreme Court and the nominations process had not been so heavily politicized, and we were operating under what more looks like a regular order. But we saw back then that there was no amount of persuasion that could convince Republicans to vote for D.C. circuit Democratic nominees. And that's why Harry had to do what he had to do, with the clear understanding -- the clear bipartisan understanding at the time that this would not move the Supreme Court. We carved out the Supreme Court on purpose. It was one of the reassurances that the Republicans wanted. So when Mitch McConnell then broke through that, that was a second problem.
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It is not going to be easy. The work that we're doing on ethics in the Court ought to be easy. And yet it's not. It's partisan also. So I think that the first step is going to be for the judicial conference, the other judges, to put some constraints around the Supreme Court's behavior and treat the Supreme Court the way all other federal judges are treated. And that happens inside the judiciary. So it doesn't get into the --
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No, it absolutely can.
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Yes, it does. It means it's constitutional because the laws that we're talking about right now are actually laws passed by Congress. The ethics reporting law that is at the heart of the Clarence Thomas ethics reporting scandal is a law passed by Congress.
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That's an argument that has been made on behalf of the president. I'm not sure that that actually stands --
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-- but certainly we can do the administrative side of judicial. You can't get into cases. I'll be the first one to concede, if there's a case in the judicial branch of government, we in the Congress have nothing to say about it. But in terms of administering how the internal ethics of the judicial branch are done -- heck, the judicial conference which does that is a creation of Congress.
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No, because if you try to do it on the front end and get a pledge of some sort in the confirmation process, well, we saw how the pledges on Roe v. Wade went in the confirmation process. And then second, you get onto the Court, and there you are, and there's no process for determining what the facts are. That's part of the problem here. When Justice Thomas failed to recuse himself from the January 6th investigation that turned up his wife's communications, he made the case that that was okay because he had no idea that she was involved in insurrection activities. That is a question of fact. That's something that could have, and should have, been determined by a neutral examination, and then we'd all know. And so the problem with the Supreme Court is that they're in a fact-free zone as well as an ethics-free zone.
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Well, first of all, I don't think the Federalist Society was exactly the institution that did this. If you go down the hall from the Federalist Society, you see the Judicial Crisis Network, which is the group that put up the ads for these judges. Leonard Leo, who is a common operative between the two, runs another dozen or so front groups. And the whole thing together has been estimated to be about a $580-million-spend by a bunch of right-wing billionaires. So in the same sense that in the old days railroad barons used to capture the railroad commissions that would do the decisions, I think there's a very strong case to be made that that is exactly what has happened to the Court right now.
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Yeah.
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Yeah, no, we knew.
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Here's the difference --
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Unless we change the law so that dark money is no longer accepted.
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Absolutely. And Democrats, to a person, vote for that every time we bring it up. Republicans, to a person, oppose it every time because I think they're very dependent on dark money. And more to the point, I think this operation that has surrounded the Court -- Judicial Crisis Network, funded by dark money. Federalist Society, funded by dark money. The groups that come in, the little flotillas of amicus curiae to file briefs, funded by dark money. There is a shadow of dark money influence around the Court that is very unhealthy for the institution.
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Term -- term limits, also.
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I have a term limits bill, so I'm obviously for that. There's an enormous amount of transparency and ethics work that can be done. I have a bill that would do that.
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Eighteen years.
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And ultimately, I think, in, in real life and in real time what's going to make a difference here is going to be the other federal judges on the Judicial Conference, as they did recently with respect to the Scalia personal invitation hospitality scheme he was running, shutting it down and telling the Chief Justice who presides over the Judicial Conference, "Look, you've had your fun. We know what you're doing isn't right. Let's clean this up for once and for all. Let's do this ourselves."
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Usually, I think the trial courts are very strong. I think over and over again we've seen honest courtrooms make amazing differences with Dominion vs. Fox, with the folks at -- the parents at Sandy Hook against the creep who was pretending that their childrens' murder wasn't real. And now recently with the judgment against Donald Trump. So honest courtrooms are really important to cut through to the truth. When you get to the Supreme Court, if it's an interest in which the big right-wing billionaires are concerned, very hard to count on getting a fair shot.
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That would be what the evidence suggests. I think the statistics are pretty stunning at how often the judges who came out of the Federalist Society do what they're told by the amicus groups that come in on behalf of the right wing.
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Good to be with you.
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