Rep. Johnson Holds Hearing on How Special Interests Threaten Judicial Independence

September 22, 2020
Press Release
Chairman: Dark money, partisan pressure, ideological litmus tests, attacks by the President, a rubber stamp Senate, and a midnight judicial appointment. This is how courts are captured.

WASHINGTON, D.C. – Today, Congressman Hank Johnson (GA-04), chair of the Judiciary Subcommittee on Courts, Intellectual Property and the Internet, held a hearing on the problem of “court capture” — the growing influence of ideology, special interest groups, and dark money on the federal judicial process – and its consequences for the rule of law, the public’s faith in an independent judiciary, and the separation of powers.   

“Dark money, partisan pressure, ideological litmus tests, attacks by the President, a rubber stamp Senate, and a midnight judicial appointment,” said Chairman Johnson. “This is how courts are captured.  This is how our judges can be seen to have lost their connection to the American people and the constitution.  This is how we lose the faith of our fellow citizens.”

Congressman Johnson and subcommittee welcomed witnesses Sen. Sheldon Whitehouse (D-RI); Amanda Hollis-Brusky, Associate Professor of Politics, Pomona College; Nancy Gertner, retired U.S. District Court judge and Senior Lecturer on Law, Harvard Law School; Tom Ginsburg, Leo Spitz Professor of International Law and Professor of Political Science, University of Chicago; and Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute. 

“For big special interests, the rewards of an amenable judiciary are immense,” Sen. Whitehouse said in his remarks to the subcommittee.  “A well-stocked bench can deliver things elected Members of Congress would never vote for: such as letting corporations spend unlimited money – even nowadays anonymous, untraceable ‘dark money’ – in our elections.  . . . The prizes are enormous, and big special interests have the stamina to play the long game.”

The following are Chairman Johnson’s opening remarks: This hearing has been rescheduled many times, and I thank my colleagues for their patience as we’ve worked to find a date and our witnesses for their flexibility.  The issue of the politicization of our cherished court system is a matter of great importance to me, and I’m sure this sentiment is echoed by many of my colleagues here today. 

[Watch HERE]

I don’t need to tell you that this hearing has taken on new weight given the events of the past week.  The loss of Supreme Court Justice Ruth Bader Ginsburg is something we all feel acutely.  She was inspirational — not just as a way-paver and role model for generations of lawyers here and around the world. She fought to protect so many of the rights that shape our lives as citizens of this nation. We are all better off in some small way because she touched our lives.  

We know her as someone who started her career fighting for women’s equality.  And we know her as someone who had a deep, heartfelt commitment to our constitution.  This is a personal loss to all of us.  No one can ever replace her, but we must honor her legacy by continuing to fight for the rights she championed her entire career.  And by protecting the institution that she loved.

What made Justice Ginsburg so beloved was her commitment to justice. She wasn’t a rubber stamp for anyone. Not for a president, not for a political party, not for any ideological society or organization, and certainly not for any corporate interests. 

In an era when our Constitution is under attack and our fundamental rights hang in the balance, the sanctity of the Third Branch is essential to preserving our fragile democracy. An independent and accountable court system is essential to a free and fair democratic society.  

Without an accountable and independent judiciary, the fundamental promise that all of us are equal in the eyes of the law becomes a lie. And if the American people believe that justice is no longer equal, our judges lose a principal source of their authority — public faith in their integrity. 

Unlike the other branches of government, few responsibilities of the judiciary are explicitly laid out in the Constitution.  The reason we entrust judges with so much authority today is because we trust them to wield that authority independently of politics, political ideology, and personal connections. Judges should not serve presidents, parties, or political movements.  They should not be seen to be compromised by special interests and dark money. 

Judges should serve the cause of justice. 

Unfortunately, over the past four years we’ve seen the rushed appointment of former political operatives to judgeships, a political and  ideological organization given undue weight in federal judicial nominations, and tens of millions of dollars spent by political and ideological organizations on federal nominations.  We have also seen the president repeatedly attack federal judges in an attempt to intimidate the courts to do what he says. 

We’ve also seen little movement by the judiciary to protect its integrity against these assaults on the rule of law. Somehow, the Supreme Court still refuses to adopt a code of ethics.  Somehow, the Judicial Conference is unable to advise lower court judges that membership in groups dedicated to reshaping the judiciary is incompatible with their ethical obligations.  

Somehow, the Supreme Court still uses its shadow docket to make life or death decisions via unsigned, unexplained orders issued in the dead of night. This should worry anyone who cares about the political neutrality and independence of our judicial system. 

In the last few years, we have also seen the Senate fail to live up to its constitutional obligation to dispassionately consider each and every one of President Trump’s judicial nominees.  Americans now see the Senate as a rushed rubber stamp, and many of us on this side of Capitol Hill are forced to agree.  

Dark money, partisan pressure, ideological litmus tests, attacks by the President, a rubber stamp Senate, and a midnight judicial appointment. This is how courts are captured.  This is how our judges can be seen to have lost their connection to the American people and the Constitution.  This is how we lose the faith of our fellow citizens.

It’s not too late.  As a wise person once said: it’s not dark yet, but ladies and gentlemen it’s getting there. 

I, for one, am deeply worried, and it’s time we investigate the depth and breadth of this trend. I’m looking forward to hearing from our esteemed witnesses who have agreed to share their knowledge and experiences with us today. 

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