A Huge Mistake Democrats Made in 2024

As the clock ticks down on the lame-duck session, Senate Democrats struck a deal on confirming judges last week that left many of us scratching our heads. On this week’s Amicus podcast, Dahlia Lithwick was joined by Sen. Sheldon Whitehouse of Rhode Island to discuss the state of the courts and the Senate heading into Trump’s reprise presidency. Whitehouse is chairman of the Senate Budget Committee and the Caucus on International Narcotics Control, and also serves as a senior member of the Judiciary Committee, the Environment and Public Works Committee, and the Finance Committee. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: On Thursday, we heard about a deal struck by Senate Democrats that would give up four circuit court confirmations in exchange for some number of district court confirmations. It raises this question for me, Senator: Are we just counting this wrong? The old model is that we count this like jellybeans—there’s X number of vacancies, and we try to get them all filled, and we try to mash as many of our judges onto the courts as we can, because we saw what happened when Donald Trump inherited a bunch of vacancies. Is the imperative here to fill as many of those seats as possible? Or was this trade going by some other metric that I don’t understand? What’s the thinking animating what you all are doing with these confirmations right now?

Sen. Sheldon Whitehouse: Obviously we want to make sure that as many Americans as possible have access to a fair and independent judiciary, as opposed to some Trump MAGA judge who is going to make his decision based on who the parties are rather than on what the law is.

The issue here is that the judiciary is not a legislative body, and so just having more honest judges than there are MAGA-captured judges is a good thing, but that’s not the end of the day. All you need is one Judge Matthew Kacsmaryk or Judge James Ho, or some of the Trump judges down in Louisiana who’ve rendered decisions on fossil fuel stuff. And the Republicans have gotten very good at judge-shopping, so they can land on the MAGA judge that they have planted.

Once you have that route set, where the phony front group cooks up the case it wants to bring, they go out and find a plaintiff of convenience who they send into the requisite jurisdiction. They then appear before the friendly judge with the fix fully in, and then off you go up to the Supreme Court, where it’s made final.

That whole process is not cured by having great, honest judges in dozens of other jurisdictions. You know the old analogy of the turd in the punch bowl? Adding more punch doesn’t solve the problem.

I’d heard you make that point recently, that the judge-shopping is so bad and the courts absolutely refuse to construct any kind of fix for it. Many judges don’t even seem to concede that it happens. So this isn’t just about evening the piles of jelly beans anymore. 

I mean, it helps. Confirming good judges is a good thing and we should do it. But the idea that if we can get a majority of Democratic appointees on the federal bench and then things will be safe in the judiciary—that just isn’t the full answer. As long as the phony-baloney litigating front groups can get their phony-baloney fake plaintiff of convenience into the courtroom of a phony-baloney MAGA judge, and then run it up through an appropriate circuit to the captured Supreme Court, the rest of the system just doesn’t matter.

That’s the railway they use to dominate policy, and we have to be watchful of it. So yes, it’s really important that we confirm these judges, but we also have to keep an absolute laser focus on this phony-baloney railway that gets the issues that the right wing wants to litigate into the right court so that they can move up to the Supreme Court.

One of the tells, of course, is when they come in and say, “I want to lose.” “How quickly can you have me lose, Your Honor, so I can get up to the Circuit Court?” And then, at the Circuit Court, they say, “How quickly can you have me lose so that I can get up to the Supreme Court?” And that, of course, is the goal of the whole operation: to use the Supreme Court to change the law.

Right. Or construct an emergency and find your way onto the shadow docket. 

Oh yes. And that’s even quicker.

If in fact we are in this era where you just need one Aileen Cannon, you just need one Matthew Kacsmaryk, you just need one James Ho—all of whom are going to spend the next four years tripping over themselves to audition for Clarence Thomas’ seat on the Supreme Court—then what can possibly happen in the next two months to create some kind of bulwark against that in the Senate judicial process? Or is it now just about messaging? Is it just making this point to the public—that you ain’t seen nothing yet, you are gonna have so many mini Matthew Kacsmaryks?

At this point it’s really about making the point. Anything we do would have to be done legislatively and would die in the House. Or, if it were a Senate rule or policy, it would be reversed by the new majority. So I think it really is a question of drawing attention to what’s happening and what is about to happen.

I don’t think that’s a failed effort. Two years ago, hardly anybody knew who Leonard Leo was, and now people are beginning to understand that he ran a very crooked operation, funded by a couple of creepy billionaires, to set up a system where basically the Koch brothers picked Trump’s judges and then they all went through a conformity bath to make sure that they would do what was expected of them. They’re coached in all the major decisions by a little flotilla of front groups, funded by the same billionaires who funded the project.

I think the more people understand that and see how many of these cases didn’t involve a real plaintiff, with a real injury, going out to find their own lawyer and then litigate it up through the system, but instead were produced by this apparatus, the better. So then I think it becomes important to communicate to voters that this can be fixed, because it’s not the way the justice system is supposed to work. But if they don’t know that, if they think this is just conservative versus liberal, then we have failed to do our job, because they misapprehend what’s really going on.

Last time you and I were together, we were at an event in D.C. where it felt like people were starting to get the message about this Leonard Leo sheep-dip process. People were angry about Loper Bright. They were angry about the immunity decision. It felt, at least for a moment, that they were connecting outcomes at the Supreme Court to this November election. And yet here we are, and I hear the words “Supreme Court” almost not at all in the conversation about what just happened. It’s so completely fallen out of the discourse.

You could almost say that the Roberts Court played us perfectly, right? The fact that the Roberts Court played a fundamental, intrinsic part in ensuring that Trump was immune and in ensuring that he was not taken off the ballot, and in delaying these trials; it’s all at John Roberts’ doorstep. I have to say I’m much less sanguine than you are that that message connecting SCOTUS to the election in any way resonated, or was salient in the end.

It probably would have helped if at the top of the Democratic ticket—first with President Biden and then with Vice President Harris—they had bothered to mention this, to raise it, to make a point of it, or to explain the background of it. It’s really hard to punch a message through in a hotly contested messaging environment between Democrats and Republicans on their way to a consequential election when we’re not even talking about it ourselves. People do take messages and inspiration and leadership from the top of the ticket, and so I do not for a minute concede that this is an issue the public doesn’t care about.

I think this is an issue the public cares about a lot, but if we’re not talking about it, and particularly if we’re not talking about it the right way, then of course it’s not going to work out. We never talked about dark money, which the public hates. That could have been a very significant issue. And we’ve been talking about climate change as if it’s a green jobs issue, not a corruption-and-ruination-of-the-planet issue.

So over and over again, we have missed the opportunity to show some rhetorical standing so that people have something to gather around and say, “You’re right. I am going to vote on that.” Some of that lands on Roberts’ doorstep because he played everybody very cleverly, but I think some of it also must land on a party that chose to avoid all three of those highly salient and consequential issues.