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This is a—to me—pretty big deal.
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I've never seen this around
any court I've ever been…
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involved with, where there's
this much dark money
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and this much influence being used.
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Here's how Washington Post
summed it up.
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“This is a conservative activist's
behind-the-scenes campaign
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to remake the nation's courts”
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and it's a $250 million
dark money operation.
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$250 million is a lot of money to
spend if you're not getting anything for it.
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So that raises the question,
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what are they getting for it?
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Well… I showed this slide earlier
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on the Affordable Care Act. And
on Obergefell, and on Roe vs. Wade.
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That's where they lost.
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But with another judge, that could change.
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That's where the contest is.
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That's where the Republican party
platform tells us to look
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at how they want judges to rule,
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to reverse Roe, to reverse
the Obamacare cases,
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and to reverse Obergefell
and take away gay marriage.
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That is their stated objective and plan…
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why not take them at their word?
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But there's another
piece of it. And that is…
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not what's ahead of us,
but what's behind us.
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And what's behind us is now 80 cases,
Mr Chairman, 80… cases.
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Under Chief Justice Roberts
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that have these characteristics:
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One, they were decided
5 to 4, by a bare majority.
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Two, the 5 to 4 majority was… partisan…
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in the sense that not one Democrat—
Democratic appointee joined the 5.
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I refer to that group
as the “Roberts Five”.
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It changes a little bit, as… with
Justice Scalia's death, for instance.
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But there's been a steady Roberts Five
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that has delivered now
80 of these decisions…
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And the last characteristic
of them is that
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there is an identifiable Republican
donor interest in those cases
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and in every single case,
that donor interest won.
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it was an 80 to 0, 5 to 4 partisan… rout.
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Ransacking.
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And it's important to look at
where those cases went
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because they're not
about big, public issues
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like getting rid of
the Affordable Care Act,
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undoing Roe vs. Wade, and
undoing… same-sex marriage.
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They're about power.
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And if you look at those 80
decisions, they fall into 4 categories…
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over and over and over again.
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One… unlimited and dark money in politics.
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Citizens United is the famous one,
but it's continued since with McCutchen
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and we've got one coming up now.
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Always the 5 for unlimited
money in politics,
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never protecting against
dark money in politics
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despite the fact that they said
it was gonna be transparent.
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And who wins?
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When you allow unlimited
dark money in politics?
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A very small group.
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The ones who have unlimited money to spend
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and a motive to spend it in politics.
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They win, everybody else loses.
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And if you were looking… at
who might be behind this,
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[points at card loudly]
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let's talk about the people with unlimited
money to spend and a motive to do it.
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We'll see how that goes.
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Next, knock the civil jury down.
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Whittle it down to a nub.
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The civil jury was in the
Constitution, in the Bill of Rights,
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in our darn Declaration of Independence.
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But it's annoying to big corporate powers.
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Because you can swagger your way
as a big corporate power through Congress.
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You can go and tell the President
you put money into to elect what to do.
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He'll put your stooges at the EPA.
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It's aaaaaall great.
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Until you get to the civil jury.
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Because they have an obligation,
as you know, Judge Barrett,
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they have an obligation under the law
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to be fair to both parties
irrespective of their size.
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You can't bribe them—
you're not allowed to.
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It's a crime to tamper with the jury.
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It's standard practice to
tamper with Congress.
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And they make decisions based on the law.
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If you're used to being the boss,
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and swaggering your way
around the political side
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you don't wanna be
answerable before a jury.
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And so one after another, these 80
5 to 4 decisions have knocked down,
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whittled away, at the civil jury,
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a great American institution.
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Third.
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First was unlimited dark money.
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Second was, demean
and diminish the civil jury.
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Third is, weaken regulatory agencies.
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A lot of this money, I'm
convinced, is polluter money.
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The coke industries is a polluter.
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The fossil fuels industry is a polluter.
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Who else would be putting
buckets of money into this
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and wanting to hide who
they are behind Donors Trust
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or other… schemes.
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And what if— If you're a big polluter
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what do you want?
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You want weak regulatory agencies.
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You want ones that you can
box up and run over to Congress.
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and get your friends to fix things for you in Congress.
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Over and over and over again,
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these decisions are
targeted at regulatory agencies
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to weaken their independence
and weaken their strength.
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And if you're a big polluter
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then weak regulatory agencies
is your idea of a good day.
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And the last thing is in politics.
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In voting.
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Why on earth… the Court made the decision
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—a factual decision.
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Not something appellate courts
ordinarily are supposed to make,
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as I understand it, Judge Barrett—
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the factual decision that
nobody needed to worry about
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minority voters in preclearance states
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being discriminated against
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or that legislators would try
to knock back their ability to vote.
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These five… made that
finding in Shelby County
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Against bipartisan legislation
from both houses of Congress
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hugely past, on no factual record.
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They just decided that that
was a problem that was over.
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On no record, with no basis,
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Because it got them to
the result… that we then saw.
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What followed. State
after state after state
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passed voter suppression laws.
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One, so badly targeting African-Americans
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that 2 courts that it was surgically…
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surgically tailored to get
after minority voters.
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And gerrymandering.
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The other great… control.
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Bulk gerrymandering,
when you go into a state,
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like the REDMAP project
in Ohio and Pennsylvania
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and you pack Democrats
so tightly into a few districts
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that all the others become
Republican majority districts.
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And in those states,
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you send a delegation to Congress
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that has a huge majority
of Republican members
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like 13 to 5, as I recall
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in a state where the 5, the party of the 5
actually won the popular vote.
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You’ve sent a delegation to Congress
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that is out of step with the
popular vote of that state, and…
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court after court figured
out how to solve that
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and the Supreme Court said, “Nope.”
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5 to 4 again. “Nope. We’re not going
to take an interest in that question.”
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In all these areas where it’s about
political power for big special interests,
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and people want to fund campaigns,
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and people want to get
their way through politics
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without actually showing up
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doing it behind Donors
Trust and other groups,
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doing it through these schemes …
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over and over and over again…
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you see the same thing.
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80 decisions, Judge Barrett.
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80 decisions.
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An 80 to 0 sweep.
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I don’t— I don’t think you’ve tried cases
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but some cases…
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the issue is bias and discrimination.
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And if you’re making a
bias case, as a trial lawyer
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—Lindsey Graham is a
hell of a good trial lawyer—
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if he wanted to make a biased case
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—Dick Durbin’s a hell
of a good trial lawyer—
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if they wanted to make a bias case,
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and they could show and 80 to 0 pattern…
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A, that’s admissible,
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and B, I’d love to make
that argument to the jury.
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I’d be really hard-pressed
to be the lawyer saying
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“No. 80 to 0’s just a bunch of flukes.”
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All 5–4, all partisan, all this way.
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So… something is not right
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around the court.
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And dark money has a lot to do with it.
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Special interests
have a lot to do with it.
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Donors Trust and whoever’s
hiding behind Donors Trust
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has a lot to do with it.
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And the Bradley Foundation
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orchestrating it’s amici over at the court
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has a lot to do with it.