RBG is Gone: Now What? (With Senator Sheldon Whitehouse)

[MUSIC PLAYING] SARAH BALDWIN: From the Watson Institute at Brown University, this is Trending Globally. I'm Sarah Baldwin.

If you're like me, you might be finding that the speed, intensity, and sheer volume of political news in America right now is truly head-spinning. On this episode, we have a conversation that we think might help. Watson Senior Fellow Rich Arenberg spent decades staffing some of the most influential congresspeople of the 20th century. He knows as much as anyone about how Congress works, or doesn't.

Rich is the interim director of the Taubman Center for American Politics and Policy at Watson, which you can imagine is having a very, very busy fall. The other day, Rich hosted an event. And we thought you all would really like it. So we decided to share it here.

The guest was Senator Sheldon Whitehouse of Rhode Island. He's a leader on some of our most pressing national issues, including climate change and campaign finance reform. He's also on the Judiciary and Finance committees. So he's been having a pretty busy fall, too.

Lucky for us, they both took some time to have a discussion about the state of US politics and give an insider's view on everything from the Supreme Court battle to the presidential election to the newest evolutions of dark money in our politics. This was a live streamed event. And we apologize if the sound gets a little fuzzy at times. But we felt it was worth sharing.

It's also been edited down. So we'll put a link in the show notes to the full version on YouTube. All right. Here's Rich.

RICH ARENBERG: It's my great honor to introduce the Senator from Rhode Island, Sheldon Whitehouse.

SHELDON WHITEHOUSE: Thank you, Rich.

RICH ARENBERG: Well, Senator, I thought before we dive into politics and policy, I wanted to ask you about the legacy of Justice Ruth Bader Ginsburg. She was clearly one of the most important and influential justices in the Supreme Court's entire history. What among her many accomplishments stands out for you?

SHELDON WHITEHOUSE: For me what stands out is her persistence. She had a very tough experience at Harvard Law School as one of very few women, maybe six or seven in a class of hundreds. But she hung in there and she really distinguished herself.

Her husband got terribly ill at the time. So she had to not only do her coursework, but take his notes and keep him up to speed. And then she transferred to Columbia and ended up getting her degree from there.

But couldn't get a job. Nobody would hire her. So she struggled through all of that and ended up teaching and doing work for charitable organizations and for the women's rights movement. And that's where she really began to shine. Because she developed a persistent, careful litigation strategy that case by case, day by day, developed the case law that we now enjoy across this country with full equality for women.

And then, of course, Bill Clinton put her on the Supreme Court. She had a real interesting transformation there. She went from being a friendly kind of bipartisan, very thoughtful, very smart, very principled judge to somebody who became iconic for their dissents. As she watched the court shift rightwards and lean more towards corporate capture, her dissents became livelier and livelier.

And now, across the country, there are women and young girls who see her as a complete role model. And she was one. And the fact that she's the first woman and the first person of the Jewish faith to lie in state in Congress in the Capitol, I think, is completely appropriate for her.

RICH ARENBERG: Senator, you've been one of the driving forces behind a series of reports from the Democratic Policy and Communications Committee entitled Captured Courts. Among other things, the reports focus on the huge level of funding from special interests pushing for conservative judges, pointing to at least $250 million in so-called dark money. How has that money translated in the presidential selection of judges and confirming them in the Senate?

SHELDON WHITEHOUSE: Well, it's kind of taken it over. The conduit for that takeover has been the Federalist Society. So let me say a quick word about the Federalist Society, which is an organization that has campus groups all across law schools, all across the country, which is totally fine. I've got no objection to that whatsoever.

But through the Federalist Society, a very small group of very big donors has achieved control over the selection process for justices and judges. And that problem is one that has been overlooked until pretty recently. The problem continues, because once they've selected the judge then they put on campaigns with TV advertisements and everything, just like a political campaign for the confirmation of the judge. And like the Federalist Society operation, this operation run by Judicial Crisis Network, is also funded by anonymous donors.

So this same set of anonymous donors is behind selecting who gets put onto the court and campaigning for their confirmation. And that gives them an enormous amount of power and probably a veto, or a strong voice, in who gets selected. And it's just wrong to have a private group with anonymous donors with such a prominent role in the make up of our Supreme Court. The pathway to corruption is a very short one from that set of circumstances.

RICH ARENBERG: By any measure, they've been wildly successful at this.

SHELDON WHITEHOUSE: Unbelievably, in fact.

RICH ARENBERG: Trump has put 53 of the powerful circuit court judges on the court, more conservative, more white, younger. You know, they've been at this for a couple of decades now, sort of laser-focused on getting this done. Why is it that the Republicans were able to do that and the return fire from Democrats has been so inadequate?

SHELDON WHITEHOUSE: Well, we've been slow to respond and there's no doubt about it. But let's not give too much credit to the Republicans. Because in this effort, they are more or less a functionary.

This effort isn't driven by the Republican Party. It's driven by big interests behind the Republican Party who tell the Republican Party what to do. And we have been slow to catch up with it. But we're on the case now. And I intend to continue working very hard to expose this operation. Because it's just wrong.

RICH ARENBERG: As a member of the Judiciary Committee, you'll play a prominent role in the hearings. Given McConnell's strong hand, do you think there is any chance of it being delayed beyond election day? Perhaps-- not wishing illness on anyone, but if additional GOP senators become ill, is there a possibility that the decision could be delayed until after election day? And then, if it is, if Biden has won the election and Democrats are about to take over the control of the Senate, do you think that will weaken the resolve of the Republican caucus to go that far to confirm a Supreme Court justice during a lame duck session where the confirmation would be by a number of senators who have just been defeated at the polls?

SHELDON WHITEHOUSE: I think they will do whatever it takes. And if they have to cram a nominee through after an election that they have lost, I believe that they will do that. I think that this is an enormous priority for them, probably the highest priority of the little donor elite that has captured the Republican Party on this.

RICH ARENBERG: Do you have strong feelings about the nominee herself?

SHELDON WHITEHOUSE: I don't know the nominee. She came through our committee towards her circuit court position. I voted against her then. She seems to be a very extreme doctrinaire conservative. And I fear for the Affordable Care Act and I fear for Roe versus Wade with her on the court.

The Republican-appointed justices of the Supreme Court, by my count, have run up 80-- 8-0-- decisions that are all characterized by being partisan decisions with a very narrow, bare 5 to 4 majority and where the big donor interests have a very identifiable victory. So its 80 to nothing. So it's really-- they've run the table.

They got stopped on a few things. They're very cautious about messing around with Roe v. Wade at the Supreme Court. And Roberts switched to vote with the Democratic appointees on the Affordable Care Act. And also Obergefell, the gay marriage case, went just 5 to 4.

So you really tip the balance of the Court when this new nominee joins. And it could very well be that Roe versus Wade, the Affordable Care Act, and gay rights all suffer dramatically as a result. And indeed, it is actually in the platform of the Republican Party to attack those three decisions and to reverse them with their appointees.

So take them at their word. This is what they say they're going to do. Why would we not believe them?

RICH ARENBERG: Some of your colleagues in the Democratic caucus have suggested that if the Republicans go ahead and ram this nomination through before the election that, if Joe Biden wins the presidency and Democrats have the majority in the Senate, they project, or they suggest, increasing the size of the Supreme Court. Is that something you've thought about? Or you just think it's premature to think about it?

SHELDON WHITEHOUSE: No. We have a lot of measures that we could take regarding the Supreme Court. I've already announced my desire to get a number of laws passed that relate to Supreme Court transparency. So that when these phony groups show up as amicus curiae, friends of the Court, they've got to disclose who their funders are. And when you run ads for a Supreme Court nominee, you've got to disclose that your donors are, and ditto with The Federalist Society and its efforts to control the selection of justices. If you're going to get involved in that game, we should know who your donors are so we can protect the integrity of the Court.

So there is a fairly obvious baseline. And I think it's going to be very important for us in a new Congress, if we have the gavels to do it in the Senate, to work with the House to make the case to the American public about what has happened to the Supreme Court. Because if they come along with us and follow the facts with us, I think they will be satisfied and perhaps even eager for us to make some significant changes to clean up and reform the Supreme Court.

If we just jump to the remedy without having made that case, without having to explain to the American people why we do this, what the situation is, then all we've done is, A, spooked them, and B, played into the Republicans' political hands. So I think it's really, really important that we do our homework before we ultimately settle on our reform portfolio.

RICH ARENBERG: It's also been suggested that the District of Columbia and Puerto Rico be granted statehood. Do you see that in the same light?

SHELDON WHITEHOUSE: I see that in the same light. And in both cases, there is an interesting phenomenon at play, which is that the Republicans have completely lost their credibility. They forfeited any standing to object on either. All the mischief that they've done to stuff through the last three nominees, the jamming of Merrick Garland to leave room for Gorsuch, the cramming through of Kavanaugh with an investigation that was at least truncated and perhaps even fake, and now this complete 180 reversal to ram the new nominee through in the-- forget eve of an election, as voting is going on in an election completely discredits them.

With respect to the DC and Puerto Rico issue, the Republicans have been very happy to govern from the minority. They've had two presidents who lost the majority vote. They've had congresses in which they controlled Congress, but because of gerrymandering, they controlled Congress against the majority vote of the American people. And the Senate, over and over, constantly, is controlled by a minority of Americans because of the small state, big state problem of New York and California and so forth being counted the same as North and South Dakota.

So there have been times when the Republican president, a Republican-controlled Congress, and a Republican-controlled Senate were all in charge, but none of them had enjoyed the support of the majority of Americans. And if we had made that point more energetically, I think we'd be in a stronger position now. But, again, if you want to serve democracy well, you've got to win your case first with the American people and then implement your change.

RICH ARENBERG: The president yesterday pulled the plug on the stimulus bill. Is that the end of any hope that this could get done before the election?

SHELDON WHITEHOUSE: Likely. He's such a unpredictable person, and his White House is such a chaotic operation, that it's hard to tell. They could do a 180 and be the exact opposite later. In fact, he was tweeting out about the need for a big bill in the same week that he said he wasn't going to negotiate about one. So it's very hard to sort through this mess with them.

The support across the country for getting some more COVID relief out there is abundant. It runs through corporate America. It runs through voters from right to left. It is, in some cases, virtually desperate in some industries, like the hospitality industry and the airline industry.

And the fact that Mitch McConnell won't move a COVID bill, won't negotiate with Nancy Pelosi in the House, and has said that there is no urgency there when Americans feel enormous urgency, but then he flips the script and goes high-speed, hair on fire, mad rush to fill a Supreme Court seat when the vast majority of Americans don't want that filled, just as the Republicans said in Garland-Gorsuch, they want to have their voice considered in the election with respect to the filling of that seat by a big, big majority.

So they're running against the wishes of the American people in both of these things, and the contrast is apparent. So I think they've made a terrible political mistake. And because of the way I think America is headed, I'm glad they made that political mistake.

RICH ARENBERG: Looking at the Twenty-Twenty election as it applies to the Senate, there's a whole array of tight Senate races, many more than even the most optimistic Democratic forecasters would have foreseen. How confident do you feel about a Democratic majority?

SHELDON WHITEHOUSE: Not at all. I still have PTSD from Twenty-Sixteen. And I've watched the last minute, dark money tsunamis flood into elections before. So I'm very much in the put the pedal to the metal and fight every minute all the way through. I don't think there's any room for relaxation or confidence until we actually see the vote counted.

RICH ARENBERG: For the sake of argument, let's assume there is a Democratic majority in January. What are the principal two or three things that you feel should be at the top of the agenda?

SHELDON WHITEHOUSE: So I think the first thing to do is to pass the equivalent of HR 1. There was a reason that Speaker Pelosi put together HR 1, the democracy reform bill in the House. There is a reason the Democratic members in the House branded that as the first bill they wanted to lead with.

Because we have to push back against the corruption and influence that has corroded our democracy. We have to push back against the dark money that's created this tsunami of slime in our politics. And that, I think, is critical.

And it's fairly ready to go. Most of the pieces of the House's HR 1 and the Senate's We The People bill have been worked over pretty well. So I think we could pass that fairly quickly.

The next order of business to get to, still in the spring, still early on, is a major climate change bill. We don't know how bad things are with respect to the climate. We don't know how many tipping points might be reached that are irreversible. Time is not on our side. So we have to push really, really hard to pass a major, major climate bill.

And then the third piece I would go to would be to undo the, I think, very wrong Republican tax relief bill that gave almost all of its benefit to big corporations and to the wealthiest Americans and also pull the tax tricks that they stuffed into the COVID bill, believe it or not. They put more money for millionaires and billionaires in tax breaks into the COVID bills than they put in for hospitals. So those would be my first three, a major tax reform, major climate bill, and lead with the big democracy reform.

RICH ARENBERG: One of the many things that the president has worked hard to do is to undermine voter confidence in mail in balloting. He's call the elections themselves rigged. And he's suggested that the only way he could lose the election is if it is rigged and it is stolen from him. How concerned are you about whether the election will be destabilized in some way, and/or that a Biden victory won't lead to a peaceful transfer of power?

SHELDON WHITEHOUSE: Very. There are three possible outcomes. One is a clear and convincing Trump victory. The second is a clear and convincing Biden victory. And the third, and depending on whether this wave we're starting to see crests more, the third is a closely contested election. And in a closely contested election, what Trump has done is to create the rhetorical space to attack the results, the legal apparatus to challenge the results, and now, in this mad rush to get the new nominee onto the court, potentially a 6-3 Court to throw the election to him in a Bush v. Gore 2.0.

RICH ARENBERG: It's remarkable that, even beyond that, he's been unwilling to commit himself to the peaceful transfer of power, one thing that's been sacrosanct in this country from the very beginning. I mean, it's one of the great precedents that George Washington laid down, and that was the peaceful exchange of power.

SHELDON WHITEHOUSE: Yep. I think we may see Joe Biden sworn in, invited to Congress to take his oath by the Speaker and by the Majority Leader, but primarily by the Speaker. And Trump still fuming in the White House. And at that point, I think, it's important that the institutions of the United States, the Secret Service and others, do their duty and clear out the White House for the newly sworn President.

And if that means marching Trump out of the White House, then that means marching Trump out of the White House. That's not a look I think he wants. I suspect he'd get out before that actually happened.

RICH ARENBERG: If I understand what you're saying, in many ways, we're left relying on a landslide.

RICH ARENBERG: Well, certainly, that makes things clear. It doesn't have to be a full on landslide, just so long as the results are not legitimately disputable by anyone. And at the moment, again, I'm very cautious about saying this because I'm so anxious after Twenty-Sixteen, but at the moment, the trend is towards exactly that happening.

And if that does happen that will be a blessing on this country. Because it will undo the prospect of all of this Trump election mischief that he is threatening. It just becomes background noise rather than an actual event in our history.

RICH ARENBERG: Assuming that kind of election, where Trump is clearly defeated and Biden becomes the president, are we still left with a Trumpist Republican Party or something entirely different?

SHELDON WHITEHOUSE: I think that there is a significant fracture in the Republican Party. I think that the Never Trumpers are vindicated. I think that the corporate support for the Republican Party is already shifting and will try to settle on a more sensible party.

I think you'll find a bunch of dead enders from militia groups and racist organizations and white supremacists and so forth who are just never going to forget that Trump gave them credit and brought them up out of America's basement into the regular rooms. So I think we'll have them to deal with for a long while. And I think that a Biden presidency, if it's done well, can reach out to the rural and urban Americans who felt so left out that they felt Trump was their salvation and tried to rebuild confidence in democracy by giving them what they want and working with them and letting them know they've been listened to.

So at the end of the day, the Republican Party is going to look very different if Trump crashes. I know from friends in the Senate who-- it would be improper for me to name names here-- but there are people who go along with Trump because they're afraid of his tweets. They're afraid of the far, far extremist right whom he has enabled.

But they find him disreputable. They find him disgraceful. And if they could push a button and be rid of him without anybody knowing that they did it, they'd probably push that button.

RICH ARENBERG: The New York Times, based on the president's tax returns going back about two decades, alleged that he paid no income tax in 11 of those years and that in Twenty-Seventeen, he paid only $750, the now famous $750. But the same story from The New York Times indicated that President Trump owes something on the order of $400 million to creditors, unidentified creditors that he's personally responsible for and apparently not too far in the distant future. Do you see this as a national security concern?

SHELDON WHITEHOUSE: Not only do I see it as a national security concern, national security people see this as a national security concern. When you're having a background investigation done to apply for a job at the National Security Council, or at the CIA, or even in the US military, one of the questions they ask you is, how much money do you owe? Because a big debt is a lever that can be used to try to corrupt you or intimidate you into doing something that is against the interests of your country.

And it's probably disqualifying for almost everybody, even if you knocked off three zeros. But the idea that this guy owes half a billion dollars to unknown folks creates an obvious conflict of interest and an obvious motive to indulge in a very, very bad behavior. And when you consider his existing record of bad behavior, the notion that he's too honorable to do that is obviously laughable.

RICH ARENBERG: OK. Let's turn to questions from the audience. Addressing those issues that you've underlined so far tonight, this member of the audience asks what can individual citizens do to help you in these efforts?

SHELDON WHITEHOUSE: I'm going to say one very specific thing and it relates to climate change. But I've got to tee it up by describing the predicament we have. Which is that, if you take corporate America, and you carve out the fossil fuel industry, you have a fossil fuel industry that, despite what its CEOs might say, is still funding and propagating climate denial and obstruction full force.

They've got a whole apparatus of front groups. They're still at it. They're still doing it.

And on the other side, far bigger, far more powerful than just the fossil fuel industry is all the rest of corporate America-- big ag, big tech, Wall Street, the finance sector, consumer goods, all of that. Those companies do not lift a finger in Congress on climate change. Even the ones with the best sustainability policies, even ones with the most stirring websites, when they come to Congress, they abandon climate change. They couldn't care less in Congress.

So what my Republican colleagues see is a corporate sector that they're primarily interested in in which the fossil fuel industry is still full on attacking climate change, attacking climate action. The big trade associations, like the US Chamber of Commerce are terrible oppositional forces against us. And the rest of corporate America, the other companies themselves, many of whom stand behind the US Chamber of Commerce, are doing nothing. They're putting up with obstruction.

So the more that individuals can communicate to companies that they deal with, whether it's Coca-Cola and Pepsi, whether it's their bank, any company whose products you buy, please send the CEO a letter. There are actually a lot of young people working on this right now in a active group to try to push for corporate climate leadership. And we are actually working with that group to help propagate their message. But it's students all across the country.

And I will tell you that, particularly consumer goods companies, very much want the young market. And they want people to lock in liking them and liking their products. So your pressure on these companies will be big.

I'll go back to Coke and Pepsi because they're an easy example. They have good sustainability policies. They got great websites. They say all the right things. They have a trade association called the American Beverage Association that, you can track its spending. It doesn't do a damn thing about climate.

So get after the companies that you like, whether it's Apple or Google or Microsoft or Facebook. You name it. They are sleeping at the wheel in Congress on climate. And if they can be awakened to take an interest, then that will begin to change things. Because right now, they're letting the fossil fuel industry run the show.

RICH ARENBERG: Another dangerous hurricane is bearing down on the Gulf Coast, likely to destroy homes and also up end refineries and petrochemical facilities, dumping yet more toxic chemicals into the air and water. We're fueling the conditions that are also threatening our supply of energy and materials. What possibility exists for a federally led plan-transition from this suicidal direction? Can you imagine a national energy policy that changes course?

SHELDON WHITEHOUSE: Yes. Not only can I imagine it, I will be working enormously hard to make sure that that is an early piece of major legislation. You can't fix the climate problem without correcting our energy policy. And we're on a virtually suicidal course right now.

And it's not as if the warnings aren't clear and many. We're seeing warnings out of Freddie Mac, for Pete's sake, the mortgage company, about a coastal property values crash because of sea level rise and storms that will be worse than the Two Thousand and Eight mortgage meltdown. We're seeing monsters of the finance industry, like BlackRock, warn that there is going to be upheaval in the entire finance industry if we don't get ahead of climate change. And we're seeing virtually every central bank of every developed country warn about a carbon bubble bursting that takes down not just the fossil fuel industry, but the world economy.

And these are warnings coming from everywhere and constantly, including very recently from Trump's own Commodity Futures Trading Commission and from three of our Federal Reserve banks. So we have been well and truly warned. And there is nothing but the mischief of the fossil fuel industry and Congress that is holding us back from getting this done.

RICH ARENBERG: One person asked, do you support the Green New Deal?

SHELDON WHITEHOUSE: I sure support the goals and the ideas of the Green New Deal. And we're going to get it done. It may have to be in sequence. The New Deal happened across multiple bills.

The Green New Deal is something that we have to be careful about as a badged entity, because the person who called for a vote on the Green New Deal was Mitch McConnell. The Republicans are campaigning about a Green New Deal. They are setting that up as the straw man opposition about how radical and crazy the Democrats are.

We have not fought back effectively at that. We have lost the messaging war over the Green New Deal. I think we can change that once we have the power to actually do legislation and people go through a bill and they see things they like. And we can then say, yeah, we're passing that.

And by the way, that was the Green New Deal. So we lost a branding war to the Republicans over the Green New Deal that we've had to adapt to. But the substance of it is something that needs to be done and is popular virtually all across the country.

RICH ARENBERG: Do you worry about violence in the wake of the election? And how might that be handled?

SHELDON WHITEHOUSE: Yeah. I think there might be some. I would hope and expect that there won't be too much. The biggest danger that I see is Trump calling out essentially citizen militias to go and behave threateningly at polling places.

And on our side, we are developing a very, very robust legal response program, a little bit like having a fire department that will be able to go to any polling place anywhere in any of the contested states. We need to have a legal fire department that, when the militia shows up with their flags and their trucks and their firearms and start intimidating people who are waiting in line at the polls, we can get an injunction putting an end to that instantly before it turns into a confrontation. We don't want to have the confrontations of Charlottesville reenacted at polling places in this country. And having lawyers ready to go to get them to knock that off, I think, will help calm that down.

RICH ARENBERG: In what ways could the Democratic party improve its standing in the American South and the Midwest?

SHELDON WHITEHOUSE: Yeah. That's interesting. I mean, I think demographics is helping already. We have Senate seats in play in Georgia, North Carolina, and even South Carolina. It was an unusual circumstance because of the bizarre nature of the Republican candidate, but we have a Democratic Senator from Alabama.

So I think that there is really ground to be gained there, both by giving the African-American vote a real motivation to participate and by playing into the suburbs of the major cities more effectively, where I think women are really fed up with Trump and his extremes and are looking for an alternative. And I think a little bit of peace and quiet, a little bit of no crazy tweeting, a little bit of dignity and decorum will let a lot of Americans just be able to breathe a sigh of relief at last. Just stop it already. And I think that's an avenue into a lot of American hearts, North, South, East, and West.

RICH ARENBERG: Again, another related question-- the US demographic will change in Twenty-Twenty-Two and Twenty-Twenty-Four, young, progressive, diverse, et cetera. Can the Democratic party change enough to make the policy changes that might be possible?

SHELDON WHITEHOUSE: Yeah. I think if we can't, then shame on us. Because what the change is that the question is calling for is really a return to our roots as the party of working Americans, trying to fight back against massive assemblies of capital and wealth and their corrupting power in Congress. That was sort of what we were all about for a long time.

So all we have to do is rediscover that. And get the work done, too. People want to see us fight for them. They want to see us do big things. It's not enough just to be talking the talk. We've got to be willing to have the fights, do the work, and make the change. And I think if we do that, then support will follow.

RICH ARENBERG: Well, we've covered a whole lot of ground tonight. And we've got a minute left. I wanted to give you an opportunity, if there was anything you wanted to say in closing, please do.

SHELDON WHITEHOUSE: First, thank you, Rich. Thank you to the Taubman Center and to the Watson Institute and to Brown for all the wonderful things you do in Rhode Island.

And I guess the closing point that I would make is that very often Democrats run to where the conflict is and engage in whatever the dispute is at the point of conflict. And what we need to learn to be better at is planning ahead and trying to disrupt the planning and sneaky apparatus of the other side. Not wait until there is a confirmation hearing that we object to to focus on what's going on with judicial nominations, but to understand that they've spent decades setting this up. And the committee hearing that we're going to have in the next few days is basically a puppet show in a puppet theater. And if everybody just looks at the puppet show and the puppet theater, they miss the important part, which is who's outside of the puppet theater pulling the strings and making the marionettes dance. And that is an area where we need to pay a lot more attention.

RICH ARENBERG: And with that, thank you so much for joining us tonight. And thank you for everything you do for the state of Rhode Island and for the nation.

SHELDON WHITEHOUSE: It's my honor. Thank you.

SARAH BALDWIN: This episode was produced by Dan Richards and Elina Coleman. Our theme music is by Henry Bloomfield. I'm Sarah Baldwin.

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