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Packing the Courts: How Republicans Spent Decades Installing Judges to Cement Minority Rule

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Amid Senate confirmation hearings for Amy Coney Barrett, we look at how conservatives have used dark money to push to seat her on the Supreme Court before the November 3 election, following a decades-long project by conservatives to install right-wing judges across the federal judiciary. “There’s no doubt that what we’re facing is, increasingly, rule by a minority,” says former Senate Judiciary Committee staffer Lisa Graves, executive director of True North Research. “When people say that the court needs to be packed, it really needs to be unpacked.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The Quarantine Report. I’m Amy Goodman, with Juan González.

Less than a month before Election Day and with early voting already underway — more than 10 million people have voted — confirmation hearings for President Donald Trump’s Supreme Court nominee, Amy Coney Barrett, began Monday with opening statements from senators on the Judiciary Committee and from Barrett herself. Four of the Republicans on the Judiciary Committee are up for reelection, including the chair, South Carolina Senator Lindsey Graham, who is in a very close race in South Carolina.

Senator Kamala Harris is the Democratic vice-presidential nominee. The hearing took place in a room closed to the public amidst coronavirus precautions. Judge Barrett sat with her husband and six of their seven children behind her. Senator Harris testified from her office on Capitol Hill. Because of the pandemic, she wasn’t directly in the room. She warned Barrett’s nomination jeopardizes everything the late Justice Ruth Bader Ginsburg fought for, and spoke in front of a children’s picture book titled I Dissent: Ruth Bader Ginsburg Makes Her Mark.

SEN. KAMALA HARRIS: By replacing Justice Ruth Bader Ginsburg with someone who will undo her legacy, President Trump is attempting to roll back Americans’ rights for decades to come. Every American must understand that with this nomination, equal justice under law is at stake. Our voting rights are at stake. Workers’ rights are at stake. Consumer rights are at stake. The right to a safe and legal abortion is at stake. And holding corporations accountable is at stake. And again, there is so much more. So, Mr. Chairman, I do believe this hearing is a clear attempt to jam through a Supreme Court nominee who will take healthcare away from millions of people during a deadly pandemic that has already killed more than 214,000 Americans.

AMY GOODMAN: That was vice-presidential nominee Kamala Harris speaking from her Senate office rather than going down to the Senate chamber, where the Judiciary Committee hearing was taking place, due to COVID precautions.

For example, the man presiding over the Senate Judiciary Committee, Senator Lindsey Graham, refused to take a COVID test and addressed this issue during the hearing, saying, “I took one two Fridays ago. No one is going to tell me what to do, particularly my opponent.” He was talking about Jaime Harrison, who demanded he take a COVID test before Friday night’s debate. And when Senator Lindsey Graham refused, the debate was canceled.

Well, after Senator Harris and other members of the Judiciary Committee concluded their opening statements, Judge Barrett was sworn in. She began her testimony by comparing her judicial philosophy to that of her mentor, the late Justice Antonin Scalia.

JUDGE AMY CONEY BARRETT: More than the style of his writing, though, it was the content of Justice Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as it is written, not as she wishes it were. Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best-known opinions, that is what it means to say that we have a government of laws and not of men.

AMY GOODMAN: That’s Judge Amy Coney Barrett testifying on Monday. Today she faces questions from senators, who have up to 30 minutes each to grill her. If confirmed, Barrett would give conservatives a 6-to-3 majority on the court. That final full Senate confirmation vote is expected to take place on October 29th, barring any surprises, a few days before Election Day.

Well, for more, we’re joined by someone who’s an expert on the judicial appointments. Lisa Graves served as chief counsel for nominations for the chair and then ranking member of the Senate Judiciary Committee. She’s now executive director of the policy research group True North Research, where she tracks the impact of dark money, including on judicial selections.

Lisa, welcome back to Democracy Now! I just want to share this point with you. Republicans have lost the popular vote in five of the last seven presidential elections, but they are on track to seat five of the last seven Supreme Court justices. Can you talk about the significance of what’s taking place?

LISA GRAVES: Sure. Thanks, Amy.

I think that, you know, there’s no doubt that what we’re facing is, increasingly, rule by a minority in this country. Basically, we live in a democracy that’s being plagued by minority rule — in essence, a very counter-democratic approach to governance. And here we are with the Supreme Court, which is, by its nature, a not democratic institution. It’s not one where people have an equal say in terms of the appointments. The appointments are handled entirely by the Senate. The United States Senate is increasingly dominated by a majority that represents a minority of people in America. And so you have this — these two facets of counter-democracy are contrary to our majority rule that most people believe in and think that America really should stand for and should expand.

But I would add to your statistics, Amy, to say that, in fact, in my lifetime, since 1970 — pardon me, since Richard Nixon, there have been 15 nominations that have been confirmed to the United States Supreme Court for a Republican president and four for Democrats. So, when people say that the court needs to be packed, it really needs to be unpacked. What’s happened in my lifetime is, it’s been Republican nomination after Republican nomination, in part due to fate and in part due to this power grab that these Republicans are right now engaged in. If they had not stolen the seat that became open in the beginning of 2016, and if they were not in the process of stealing this seat right now, the court wouldn’t be 6-3 with a majority Republican appointees. It could very well be the other way around.

JUAN GONZÁLEZ: And, Lisa Graves, I wanted to ask you, though, about a little of the history of where we came to now. Back in 2013, Senate Majority Leader Harry Reid, who was frustrated by Republicans blocking President Obama’s judicial nominees, decided on the nuclear option, eliminated the 60-vote rule on presidential appointees and even lower court federal judges. And then, in 2017, Majority Leader McConnell countered by eliminating the 60-vote rule for Supreme Court. So, that was just before the Gorsuch nomination. So, to what degree is this back-and-forth between the Democratic majorities and the Republican majorities leading us to this point of even the extreme polarization on the court?

LISA GRAVES: Well, as I said, we would have a 5-4 court but for these last four years of the way the Republicans have operated the United States Senate, in terms of Democratic appointees. But the reality is that this has been a longtime process. In essence, the Republicans have been engaged in blocking nominees of Democratic presidents for the last, basically, 30 years, whenever they could. In the 2016 — pardon me, in the 1996 election year for President Clinton, they only allowed, I think, 16 or 17 judges to be confirmed that entire year — no one for the Supreme Court, obviously; there was no vacancy. Democrats have not engaged in that kind of a blockade, a widespread blockade. When I was the chief counsel for the Senate Judiciary Committee, we blocked more than a dozen Republican appointees on the floor of the United States Senate. Meanwhile, 200 of Bush’s nominees were confirmed.

And so, you know, when Senator Reid changed the rules or had the rules changed for lower court nominees, that was out of intense frustration, but the reality is, is that the Republicans were never going to honor that filibuster rule when it came to the United States Supreme Court, as Mitch McConnell did not. And that has resulted in this situation in which there is no compromise. And, in fact, the rules of the game have basically been rigged.

And they’re being rigged this week. Senator Lindsey Graham is going to notice a vote on Amy Barrett’s nomination this Thursday, before even the answers are in from the written questions that will be submitted to her this week. So they’re basically willing to break every rule, bend every rule, change every rule, in order to pack the Supreme Court, because they’re so desperate to overturn these laws, laws that are widely respected, precedents that are widely respected by the American people.

And there’s no doubt that Amy Coney Barrett has been chosen precisely with the view that that’s exactly what she’ll do. She wasn’t chosen with the view that she’ll be fair. She was chosen because they believe very strongly that she will be unfair, that she will reverse these precedents.

And so, it’s unfortunate the United States Senate has lost its way in terms of these rules that have been part of its history for a long time. But the reality is, is that the Republicans have broken those rules time and time again in committee, as well as on the floor of the Senate, in order to force through increasingly extreme judicial nominees, as well as to block fair, reasonable, moderate nominees the Democratic presidents have put forward.

JUAN GONZÁLEZ: But yet, during both the presidential debate and the vice-presidential debate, Joe Biden and Kamala Harris both dodged the question of whether they would seek to change the composition of the court. What’s your sense of what needs to be done? And should Democrats be letting the Republicans know from the start, if you go down this path, you potentially suffer consequences once there is a Democratic majority in both Congress and the White House?

LISA GRAVES: Well, I think that the question that’s been put to them is one that often is without the context of how the court has already been packed. The fact is, as I said, that Republican presidents in the last 50 years have appointed — have had 15 nominations confirmed to the United States Supreme Court, and only four nominees of Democratic presidents have been confirmed to the United States Supreme Court. That’s a massive, massive packing and capture of the court, in the words of Sheldon Whitehouse, Senator Whitehouse. And so, you know, I think that has to be redressed.

I also think that we need a modern, 21st century judiciary that reflects America. But more than that, I think we need fair courts. The only reason to abide by court decisions, besides the fact that they’re binding as a matter of law, is that there’s some notion that the judges will be fair. The essence of a judge isn’t whether they’re smart or whether their fellow law professors like them as a colleague or whether they have people that they’ve mentored. You know, everyone has that in their professional lives if they’re a lawyer. They have people who will speak highly of them. The essence of being a judge is to be fair. And you need to have a record of fairness, a record of setting aside your personal views and deciding cases justly.

When Amy Coney Barrett says that she is embracing Justice Scalia’s acclaimed adherence to the rule of law, what we see in Justice Scalia’s opinions, time and time again, was opinions written as if they were op-ed columns for The Wall Street Journal. We see a man who was willing to claim that he adhered to his ideals when they were consistent with his beliefs. In other instances, he did not. He didn’t read things or construe things strictly often when they weren’t in alliance with his views. And so, you have someone who has tried to put a mask on his judicial philosophy by claiming it is so independent of his views. And, in fact, you have a guy who basically was on the court writing, in essence, op-ed opinions and putting forward, in many instances, his own personal views and substituting them for the law and claiming that that was history.

AMY GOODMAN: So, I want to go to Democratic Senator Sheldon Whitehouse of Rhode Island, who was speaking in the hearing on Monday.

SEN. SHELDON WHITEHOUSE: Why would we rush forward? Well, the answer isn’t pretty. There’s a promise to big donors that must be kept. When David Koch ran for vice president, he campaigned on getting rid of Medicare and Medicaid. Imagine his fury when Obamacare passed. His groups are spending millions right now on this nomination.

AMY GOODMAN: So, that’s Democratic Senator Sheldon Whitehouse in the Senate Judiciary Committee. Lisa Graves, he’s talking about the Affordable Care Act, which is up for oral arguments on November 10th. If Amy Coney Barrett is approved, she might be part of those oral arguments. If you can talk both about the dark money involved with all of this, and the Supreme Court decisions, whether we’re talking about the Affordable Care Act or, possibly, President Trump choosing his own juror in a case that would land the election in the Supreme Court?

LISA GRAVES: Yes. Well, you know, one of the things that I’ve been calling for with the Ben Franklin Project is for her to recuse and commit unequivocally to recuse from any case involving this election. And the indications are that she will not.

But the fact is, is that we have this illegitimate process going forward to put her on the court. And part of that illegitimacy, quite frankly, is the dark money that’s been swirling around this effort to pack this court.

And the person who is really at the center of that is a guy named Leonard Leo. In a recent book, it was noted that he met for dinner with President Trump to put Amy Coney Barrett on the list of potential Supreme Court nominees, to specifically put her on that list after Neil Gorsuch was confirmed. She’s put on that list because they believe that she will advance their agenda. Leonard Leo gave a speech last year, that The Washington Post reported on, in which he said, due to these appointments, that America stands at the precipice of what he called a “revival” of what he described as the, quote, “structural constitution,” and that no one in the room of donors that he was speaking to had seen the kind of revolution that was about to take place in the law, that basically would roll back a hundred years of precedent. That’s an enormously radical, reactionary agenda that Leonard Leo advances. That’s an agenda to basically take away —

AMY GOODMAN: Of the Federalist Society.

LISA GRAVES: He was the vice president of the Federalist Society. He gave that speech to a group called the Council [for] National Policy. And he has basically said — and he’s been the judge whisperer, in essence, for Donald Trump, a, quote, “volunteer” for the president, who took a pay cut from the Federalist Society in 2018 during the Kavanaugh nomination of about $100,000. And yet, because of his involvement with these other groups, he was able to pay off the mortgage for his house, and on the eve of the confirmation vote for Brett Kavanaugh, which is two years ago last week, he purchased a mansion in Maine, a 12-bedroom mansion that’s across from the yacht club. That was as cloture was being voted on on Brett Kavanaugh. So he’s gotten very rich from his work to try to pack this court with people that he’s put on the list that President Trump chooses from.

And he has recently launched a new effort earlier this year, rebranded effort, a for-profit operation that also advises donors on how to basically influence who gets on our Supreme Court and our state supreme courts, including the Wisconsin Supreme Court, and to help pack these courts with people who are very favorable to the corporate agenda and very favorable to a far-right-wing social agenda, which will repeal — potentially repeal a lot of laws, the ACA, repeal Roe v. Wade, and possibly even Griswold v. Connecticut, but, more than that, could possibly stop our federal government from being able to mitigate climate change, by putting up hurdles, judicial hurdles, to our ability to enact legislation to regulate carbon.

So, everything is on the line here, and Leonard Leo represents an agenda that is an extreme agenda both from a social standpoint and also from a corporate standpoint. As Senator Whitehouse said, this is an unreal situation, where we have groups raising money from a small number, potentially, of billionaires, who are then spending money to put people on the court to overturn precedent. Meanwhile, on the progressive side, you have people who are merely trying to protect the precedents that exist. They’re not trying to put on judges to change the law, to reverse precedents. They’re trying to protect the precedents that many Americans have relied upon for decades. So it’s a true crisis in our democracy to have this going on.

JUAN GONZÁLEZ: But, Lisa Graves, we’ve heard a lot about Amy Coney Barrett in terms of abortion. And what about the issue of worker rights? What has been her record on the issue of corporations versus workers?

LISA GRAVES: Well, one of the things that Leonard Leo and the president and his adviser Don McGahn did was get her on the bench in late 2017, so that she could begin having just a slender judicial record so that they could claim she had sufficient experience to be on the Supreme Court, which has been a pattern of these appointments to the Supreme Court.

But the fact is, is that in her very brief time acting as a judge, she has often decided in favor of corporations against the rights of individuals, including in employment discrimination cases, including one where there was actually a racially segregated workforce. She has also ruled against plaintiffs in cases involving other worker rights. And she has, in essence, shown this sort of hostility toward the statutory rights of individuals who are coming to the federal courts to try to get some justice from corporations that have either denied them their rights or made them lose their jobs, basically, through decisions that they challenged. And so, you have someone who — in Amy Barrett, who’s also been hostile to the rights of the American worker.

And I have no doubt that she’s been chosen, in part, to fulfill President Trump’s pledge to overturn the Affordable Care Act, which, although it’s not a workers’ rights case, it’s a working people’s rights case, because so many people cannot afford health insurance, and so many employers do not provide health insurance, and we have this gig economy where people are using contractors that don’t get any benefits at all and can’t get health insurance without the Affordable Care Act.

AMY GOODMAN: Well, Lisa Graves, we want to thank you so much for being with us, executive director of the policy research group True North Research and Ben Franklin Project. She was the chief counsel for nominations for the chairman, then ranking member of the Senate Judiciary Committee. She previously served as deputy assistant attorney general in the U.S. Department of Justice, where she was the staff leader of the Working Group on Judicial Selection, worked under Attorney General John Ashcroft.

This is Democracy Now! When we come back, what does Bush v. Gore in 2000 have to do with today? We’ll speak with Ari Berman. Stay with us.

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