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Kavanaugh hearings: Sen. Whitehouse delivers withering attack on Supreme Court partisan politics

Sen. Sheldon Whitehouse
REUTERS/Chris Wattie
A Senate aide holds a display as Sen. Sheldon Whitehouse speaks during a Senate Judiciary Committee confirmation hearing for U.S. Supreme Court nominee judge Brett Kavanaugh.

Yes, the Brett Kavanaugh hearings got under way this morning. Most of the morning was taken up with Democrats protesting against all the Kavanaugh documents that have been withheld, especially from his years working in the White House. Sen. Corey Booker estimated that 90 percent of what the Senate needs to see has been withheld. Those arguments will continue, but don’t hold your breath for any big concessions from the White House Republican leadership of the Judiciary Committee.

But, speaking of the White House, Democratic Sen. Sheldon Whitehouse of Rhode Island late this morning delivered a withering attack on the idea that the Supreme Court is above partisan politics. His argument was that the confirmation of Kavanaugh will lock in place the domination of the court by a bare five-justice majority of Republican nominees who, according to Whitehouse, are reliable lickspittles for corporate America, delivering a powerful indictment of what he called “The Roberts Five,” which refers to Chief Justice John Roberts and the four other justices appointed by Republican presidents.

According to Whitehouse, Kavanaugh, if confirmed, will become the newest lickspittle, locking into place a reliable majority for the interests of the wealthy (corporate) few over the masses. I’ll link to the full statement below. It’s pretty long but it packs a wallop.

“When does a pattern prove bias?” Whitehouse asked rhetorically. He analyzed the cases in which the five Republican-appointed justices have voted together against the four appointed by Democratic presidents. He found 80 of them during Roberts’ chiefship, and said that in 73 of them (that’s 92 percent of those cases) “there’s a big Republican or partisan interest involved. And the result, by a 5-4 vote of Republican justices against the four Democrats, the Republican partisan or corporate interest has won “every damn time.”

The things that Whitehouse said Republicans supposedly care for in Supreme Court cases – judicial modesty, originalism, respect for precedent – all go out the window if they come up against corporate interests or Republican partisan interests. The litany of “Roberts Five” decisions explains “why the big Republican interests want Judge Kavanaugh on the court so badly.”

He then enumerated the cases in which either the partisan political interests of the Republican Party (for example, gerrymandering cases, plus Citizens United, which destroyed laws designed to keep corporate money out of politics), cases advancing the conservative/Republican social agenda (for examples, cases restricting right to abortion) or the financial interests of Republican corporate allies are at stake. Some examples: cases helping big business “bust unions,” decisions that “help corporate polluters pollute.” In 100 percent of cases in which the U.S. Chamber of Commerce took a position by filing a brief or other such action that were decided 5-4, the side favored by the U.S. Chamber won 5-4, with the Roberts Five providing all five votes to the Chamber’s side.

Bear in mind, this was Whitehouse’s opening statement, so Kavanaugh had no opportunity to reply. He sat, fairly stone-faced, occasionally making a note.

And parts of Whitehouse’s speech got pretty personal, as he portrayed Kavanaugh’s career as a virtual audition to big business and social conservative organizations to put him in the position he now occupies, as the nominee of a Republican majority to secure the Roberts Five for the next round of 5-4 rulings.

I could cite some of those Kavanaugh rulings, but I swore I would keep this short and urge you to read the full text of Whitehouse’s powerful statement, which is right here.

I confess, I have not previously followed Whitehouse’s Senate career closely. But he knocked my socks off this morning.

Comments (34)

  1. Submitted by Paul Brandon on 09/04/2018 - 03:00 pm.

    Kavanaugh’s record speaks for itself.
    That is why the Republicans don’t want to make it available.

    • Submitted by Tom Anderson on 09/04/2018 - 08:19 pm.

      Any idea how long it would take for each Senator to read all of the hundreds of thousands of pages of documents? Before a 51-49 vote that is as predictable as the 5-4 votes complained about in this thread.

      • Submitted by Frank Phelan on 09/05/2018 - 06:15 am.

        I recall plenty of gripping about Congressional reps not reading the entire ACA bill before voting on it. These are the same folks who thinks it’s fine to have 42K page document dump the day before a hearing on a life time appointment.

        I know a cover up when I see it.

      • Submitted by Paul Brandon on 09/05/2018 - 09:15 am.

        Senators have staffs.
        You have a hundred people looking through the piles and you can at least skim each one to see which of them are relevant to the confirmation.

      • Submitted by RB Holbrook on 09/05/2018 - 10:25 am.

        So what if it is predictable? I recall nothing in the Constitution that calls on the Senate to “advise and consent, unless the vote is predictable.”

        • Submitted by Tom Anderson on 09/05/2018 - 10:53 am.

          I guess my point is that whether our two Senators read over a million pages of documents, or just ten, their votes will be the same (as will the votes of the other Senators. Perhaps all this wasted time could be spent on something else but the charade does make for good talking points and campaign material so on it goes…

          • Submitted by Frank Phelan on 09/05/2018 - 11:32 am.

            It’s likely a 30 year gig. What’s the rush? Bork was a slam dunk too, until information came to light at his confirmation hearing.

            The proverbial Fat Lady may be tuning up, but she ain’t sung yet.

          • Submitted by RB Holbrook on 09/05/2018 - 11:38 am.

            Arguably, anything Congress does could be characterized as “talking points and campaign material.” That doesn’t mean that the advise and consent function of the Senate should be dismissed.

            Are the Republican Senators so rigid in their positions that their minds could not be changed? At the very least, should they not be held accountable for a vote to confirm a Supreme Court Justice who may have participated in rationalizing torture? Or who believes (now) that the President should be immune from criminal investigation?

          • Submitted by Paul Udstrand on 09/06/2018 - 09:10 am.

            The Senate is supposed to vet nominees as part of it’s advise and consent responsibilities. Unless your arguing that this is simply an impossible task, they should have the documents they need, and they should take the time to do it. This is NOT a ceremonial formality.

            The practical affect of withholding all information is it reduces accountability for those who vote to confirm. If problems develop later on and the new judge turns out to be unpopular, they can claim they didn’t know any better.

  2. Submitted by Frank Phelan on 09/04/2018 - 03:29 pm.

    It’s about time the Democrats call B….. ah…. call out this charade that conservative SCOTUS nominees have been acting out. Balls and strikes my eye.

    Good for Whitehouse.

  3. Submitted by Ole Johnson on 09/04/2018 - 03:55 pm.

    Is Whitehouse just as worried that the RBG-4 vote in lockstep just as often as the Roberts-5?

    Or is that OK, because they are voting in lockstep the way he likes?

    • Submitted by Frank Phelan on 09/04/2018 - 04:25 pm.

      Sen. Whitehouse provided data to back up his claims.

      Where is your data?

      • Submitted by Ole Johnson on 09/04/2018 - 05:00 pm.


        I’d say my data is the exact same data that Whitehouse cited. He is the one that said there were 73 instances of a 5-4 ruling that gave the edge to GOP bias.

        Whitehouse says this is absolute BS. No way it could be that high unless the judges were ruling strictly on bias. If the RBG-4 were paragons of fair play, wouldn’t they have voted along with the evil Roberts-5 on at least a few of them?

        I’m not on either team, so I’m just trying to point out that if Obama had a Democratic Senate he would have pushed Merrick Garland into the SC and in the future we’d be seeing 90% rulings in the other direction.

        That would be just as bad, right?

        • Submitted by Frank Phelan on 09/04/2018 - 05:52 pm.

          Garland was a centrist appointment by a centrist Democrat who rarely ruffled the corporate suite. Witness how he and his Justice Department left Wall Street crooks off the hook. Plenty of lefties were dissatisfied with Obama’s choice.

          If you want to indict RBG for taking the side of the little guy, have at it. Own it, and run on it.

        • Submitted by Dennis Wagner on 09/09/2018 - 06:47 pm.

          All cases are not created equal. These were corporate cases, called out specifically, to prove your point you need to look at other cases that are not corporate, and determine if the same set of voting facts exist. The point was how come none of these 5 rarely if ever deviate? Does it show the 4 in the minority are colluding to lose? Or the 5 in the majority are colluding to win? Experience suggests the later and not the prior, specifically when we are talking about money and power and hitory!

  4. Submitted by Tim Smith on 09/04/2018 - 04:15 pm.

    Is he qualified, yes.What a shameful, pathetic, ugly partisan witch hunt and hysrterical theater put on by the alt left this AM.

    funny how the last post was about civility. Hello pot, this is the kettle!

    • Submitted by Frank Phelan on 09/04/2018 - 04:34 pm.

      Oh yes, hysterical theater. Unlike the hysterical theater of concocting bogus precedents to deny Garland even getting a hearing.

      It’s terrible when Senate norms are shredded, isn’t it? McConnell drops a nuke, and now we hear tut-tutting about someone tossing a firecracker.

      Pot meet kettle indeed.

  5. Submitted by Ron Gotzman on 09/04/2018 - 04:18 pm.

    The rantings of Mr. Whitehouse are nothing more than the “swan song” of the out of touch, irrelevant, and increasingly diminished voice of the old Senate democrats.

  6. Submitted by Curtis Senker on 09/04/2018 - 06:05 pm.

    I thought Ben Sass’ commentary on the same subject was much more coherent, more convincing and a lot less specious.

  7. Submitted by Ray J Wallin on 09/04/2018 - 07:24 pm.

    We have two fun moments here…

    (1) Pot (senator) calling Kettle (SCOTUS) Black (partisan)

    (2) The sky is falling…. again. The same comments were made about Justice Gorsuch and, not surprisingly, he turned out to be more moderate than the left predicted.

    • Submitted by Frank Phelan on 09/05/2018 - 06:19 am.

      Please tell me about the “surprise” decisions by Gorsuch.

      Perhaps you’re talking about his vote in the Janus decision, when he completely contradicted his professed fealty to stare decisis. Oh wait, that wasn’t moderate, it was an extreme right wing power grab.

  8. Submitted by Jon Kingstad on 09/04/2018 - 08:22 pm.

    A lot of discussions about the Supreme Court and the judiciary get hung up on whether judges are “biased”, a word which is highly elastic in ordinary speech but very specific and narrowly defined when it comes to a judge or justice deciding a given case fairly and without hearing both sides. Sen. Whitehouse I think was using “biased” in the broader common usage of the term meaning ” having no agenda.” That should be the standard by which a justice or judge is evaluated when a political body like the Senate decides to give consent.

    If the “Roberts five” have no agenda and if there was no agenda by the GOP in having a justice “with an agenda” being appointed to the Supreme Court, then what was the point of refusing to even give a hearing to Merrick Garland? political purposes. I suppose you could argue, like some of the previous commenters, that the RBG-4 and the (so-called) “liberals” on the Court have an agenda. What might that be I wonder? To me, it looks only like refusing to go along with the agenda of Roberts Five. The agenda of the Roberts Five was laid out in the infamous Powell memo of 30 plus years ago that has given us Citizen’s United, Belotti, Buckley v Valeo, not to mention a host of publicly less-well-known decisions that have expanded the rights and powers of corporations, the wealthy and the socially conservative minority at the expense of the many.

    I thought a person was “out of touch” if they were estranged from the mood and currents of the majority of people in this country. If Sen. Whitehouse is “out of touch”, it’s only because he’s not “in touch” with the wealthy, the corporations and reactionary minority who want to dictate the agenda.

  9. Submitted by joe smith on 09/05/2018 - 07:15 am.

    What an embarrassment. The first hour of that hearing showed why congress has an approval rating in the teens. At first, I thought Grassley was way too lenient but the more he let the Dems talk, the worse they looked. If the Dems had a problem with Kavanaugh’s qualifications, they should question him on it. This interrupting and rudeness is sad to watch.

    • Submitted by RB Holbrook on 09/05/2018 - 10:29 am.

      Democrats wanted to question Judge Kavanaugh on his legal philosophy and some of his past opinions. Was he complicit in legitimizing torture? How about some of his current opinions? Does he still believe that the President should not be subject to a criminal investigation, or has his thinking on that issue “evolved” yet again?

      Why are the Republicans so afraid of that kind of scrutiny?

    • Submitted by Connie Sullivan on 09/05/2018 - 04:38 pm.

      The rudeness was on the part of a bunch of vocal protesters at the back of the room (all ejected,, all arrested by cops there both Tuesday and today). The interruptions were by Democrats who were rightly protesting the fact that the Trump White House (contravening George W. Bush’s okay for almost all the documents) has censored hundreds of thousands of pages of siginificant documents–some outright, others by Chairman Grassley’s limiting the Senators to reading the documents themselves but not permitting them to question Kavanaugh about any aspect of what the documents reveal–WOW!

      Kavanaugh will get approved–the GOP has the votes. But the Dems are putting up a good show–Whitehouse and Amy Klobuchar very centrally–and teaching America what’s at stake in his appointment and showing up his weak points: his concept of almost total presidential power, including the power to pardon himself and never be investigated, and his iffy decisions in a number of cases, like the Garza case (he pushed a 17-year-old pregnant girl almost to the legal limit of Texas’s abortion right period by putting increasing legal barriers for her to leap over. A protector of Roe? Not on your life!

      Today, Klobuchar was in Take No Prisoners mode. We’ve got another MN Senate powerhouse, folks, one who smiles and seems friendly with her colleagues on both sides but who can be devastating in questioning. And a clear MN Democrat.

  10. Submitted by Ray Schoch on 09/05/2018 - 09:03 am.

    Unless I’m badly mistaken, Republicans still control the Senate, and the likelihood of defections from the Republican to the Democratic side regarding Mr. Kavanaugh seems, to be polite, slim to none. No matter how pointed the questions or how “hysterical” Democratic opposition might be – Kabuki theater in Japan has nothing on the U.S. Senate in high dudgeon – I think Kavanaugh will be confirmed whether most of the populace likes it or not.

    And, truth be told, given the ongoing support of a significant portion of the electorate for the demonstrated incompetence of the Oval Office’s current occupant, a fair case can be made that at least that portion of the electorate doesn’t care much about what’s said in the Kavanaugh appointment hearings, as long as he ends up being appointed. Republican hypocrisy in a highly charged political environment such as these hearings is so widely recognized that it hardly needs to be mentioned, much less pointed out in detail, and the Democrats’ flailing about is, as Joe Smith suggested, sad to watch, mostly because those of us watching know it’s an exercise in futility. I would just add that the rudeness Mr. Smith deplores was brought to us by Newt Gingrich and his fellow Republicans a couple decades ago, and it continues under the aegis of the Oval Office’s current occupant, who – strictly in terms of rudeness – makes the Democrats in question look like rank amateurs.

    For the most part, Jon Kingstad’s response is the one I like best.

    • Submitted by Paul Brandon on 09/05/2018 - 09:18 am.

      The Democrats are playing for November.
      They want their voters to be in high enough dungeon to get out and vote.
      If they do, they’ll gain control of the house, and possibly the Senate.

  11. Submitted by Frank Phelan on 09/05/2018 - 09:18 am.

    It is very amusing to hear conservatives fall all over themselves in mock distress over yesterday’s hearing, when their guy Don Trump has no problem shredding any norms or conventions he feels like shredding.

    Lock her up! Get that sonofabitch off the field! Knock the crap out of them … I promise you, I will pay for the legal fees.”

    A few people shouting about Roe at a hearing pales in comparison.

  12. Submitted by Joe Musich on 09/05/2018 - 09:36 pm.

    Thanks Eric. I will have to find out more about this guy as the authoritarian corporate trains rolls over more bodies that do not look like the Mr Moneybags. Once the great hope of the world we have become the oligarch many spoke about in earnings. I doubt the Dems can even be unified enough with this vote for them all to vote against the guy. We seemed to headed to a guaranteed return to 1894. That will not work in 2018 forward. We cannot seem to move away from our historical roots as the ones who learned from the LBJ warning/adage about playing people against one another were in the gop and not so much the Dem party.

  13. Submitted by Paul Udstrand on 09/06/2018 - 09:18 am.

    Whatever. The problem here is that Democrats and US liberals failed to discredit the intellectually fraudulent notion of “Originalism” in the first place. Centrist Democrats decided to treat magical thinking as-if it could be a rational theory of jurisprudence and now it’s too late to turn back the clock. There was NEVER any reason to take this mumbo-jumbo seriously yet Democrats insisted that mere legal competence was the only appropriate factor worth considering, and here we are decades later paying the price.

  14. Submitted by Paul Udstrand on 09/06/2018 - 09:19 am.

    So a bunch of guys who had no problem whatsoever keeping a bench seat empty for an entire year, suddenly can’t take a couple more weeks to look at or demand some more documentation? Uh huh.

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