Newsweek - USA (2019-11-08)

of break through the Senate decorum

and tradition in order to push people

through—which is a sign of some-

thing going on. And I don’t think

we’ve ever done it in a way that was

so heavily influenced by dark money. 

The nightmare scenario here is that

behind the judicial selections are the

anonymous donors for whom the

Federalist Society fronts. And behind

the Judicial Crisis Network, and its

campaigns for these judges, are the

same donors. And behind these front

groups, whether it’s the Chamber of

Commerce or the Pacific Legal Foun-

dation or whomever—there are doz-

ens of them—are, again, the same big

donors. And then, God forbid, those

73 decisions—the beneficiaries of

them are that same group of secret,

anonymous donors. That would be

a nightmare scenario. Putting some

sunlight into it, so that doesn’t hap-

pen, would be very much worth our

attention and some effort. 

The “ɿrecrackerŤ amicus brief you

wrote was prompted by the gun

control case 1HZ<RUN5LɶH 3LVWRO

$VVRFLDWLRQY&LW\RI1HZ<RUNIn

it you mention that the NRA spent

$1.2 million on TV ads during the

Kavanaugh conɿrmation hearings.

You describe one of the commer-

cials, which said that the Court

was split, 4-4, on gun rights and

that “President Trump chose Brett

Kavanaugh to break the tie...Tell

your Senator >to@ conɿrm -udge

Kavanaugh.Ť Do you feel that that

sort of ad should be illegal? Or

would you just require disclosure

of the donors of such ads?

I’ve been the lead sponsor of the DIS-

CLOSE Act. So yes, I think those ads

should be disclosed.

Your brief was signed by you and

four other Senators: Masie Hirono,

Richard Blumenthal, Richard

Durbin and Kirsten Gillibrand.

Why do you think there wasn’t

more support?

I don’t know, but it came out while

we were on recess. My office had

just a few days to try to get sena-

tors to climb out on a limb and

sign on to a—what did you call it,

a “firecracker” brief? I was actually

pleasantly surprised when I got that

much response.

Senate Republicans—all 53—

signed a sharp letter to the Court

in response. They said: “Our col-

leagues...openly threatened this

Court with political retribution

if it failed to dismiss the petition

as moot...The implication is plain

as day: Dismiss this case, or we’ll

pack the Court.Ťb

Obviously not true. But exactly con-

sistent with the false message that

the right-wing operation was pump-

ing out in the weeks immediately

after the brief. The talking points

these people seemed to follow were

so closely followed that at one point

the Wall Street Journal editorial page

actually had to put an editor’s note

denying that it had plagiarized an

editorial from National Review. And

I accept that they didn’t plagiarize

National Review. I think both had

been given the same talking points.

[The editor’s note said the similar-

ity was “inadvertent,” but removed

two sentences from the editorial and

apologized. In an email to Newsweek,

The Journal editorial page editor Paul

Gigot responds: “The ‘talking point’

claim is false and a typical Sheldon

Whitehouse canard.” The Journal

declined to furnish the two sentences

that were deleted.] 

I thought it was really telling that

the Republican letter got all 53 on it,

which is a sign of considerable donor

interest, and matched the inaccurate

assertions that were the common

theme of the stuff that was cranked

up in the right-wing media. 

Part of what seemed to set you off

was that the plaintiff riʀe associa-

tion had, in its opening brief, overt-

ly suggested that the Court, when

it came to its Second Amendment

rulings, was pursuing a—

“Project.”

Yes. The riʀe association urged

the Court: “The project this court

began in +HOOHU and 0F'RQDOG

cannot end with those prece-

dents.Ť [HellerGHFLGHGLQ

UHQGHUHGFHUWDLQIHGHUDOJXQFRQ-

WUROODZVLQYDOLGZKLOHMcDonald,

GHFLGHGLQGLGWKHVDPHIRU

VWDWHJXQFRQWUROODZV]

And it wasn’t as if that term, “project,”

stood alone as some sort of rhetorical

misfire that we were taking advan-

tage of. You had that term used in

conjunction with all the spending

by the NRA on control of the courts.

You have this being ramped up as a

political effort. You have Kavanaugh,

at the end of that, being sold as the

good gun vote. And, boom, you have

the Court taking virtually the next

gun case after having held back [from

reviewing any gun cases since 2010].

And you put all those pieces

together—you don’t need to be a

weatherman to see which way that

wind blows. 

NEWSWEEK.COM 17

“This may be just

me—but I think

that the Court is

entitled to a chance

to ‘heal thyself.’Ť