How the Republican political ecosystem took over America’s courts

Flux Podcasts (Formerly Theory of Change)

Episode Summary

The Supreme Court’s decision in Dobbs v. Jackson ending a national right to terminate a pregnancy came as an abrupt shock to millions of Americans. But if you had been paying attention beforehand, the verdict was no surprise at all.

In fact, the repeal of Roe v. Wade was the culmination of a successful strategy that began in the 1970s to flood the American legal system with activist judges who would impose their viewpoints that were so radical that congressional Republicans didn’t even dare to try to enact them legislatively.

As outrageous as the court’s recent rulings have been, what is perhaps even more outrageous is that the right-wing takeover of the judicial system took place almost entirely in full public view, as organizations like the Federalist Society and other deceptively named groups worked together to launder extremist viewpoints and disperse millions of dollars to everyone from law students to Supreme Court justices. It’s yet another instance where the sprawling Republican political ecosystem has overpowered neutral institutions with little resistance.

David Brock, founder of Media Matters, is our guest in today’s episode and he lays out how this all happened in his new book, Stench: The Making of the Thomas Court and the Unmaking of America.

Can anything be done about this dreadful situation? We discussed that as well. I hope you’ll enjoy. And if you get a chance, please do share this episode on social media to help spread the word.

The video of this discussion is available, the transcript is below. Because of its length, some podcast apps and email programs may truncate it. Access the episode page to get the full text.

Related Content

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—Liberal law professors created a ludicrous cult of constitutional law while far-right Republicans were seizing control of the judiciary

—Former Trump lawyer John Eastman says Satan is behind legal attempts to hold him accountable

—Christian supremacists openly speaking about how they’ll use Supreme Court to install theocracy

—The judicial system is rigged and it’s time Democrats told the public about it

Audio Chapters

00:00 — Introduction

03:55 — The role of money in judicial campaigns

04:48 — The Powell memo and its impact

08:23 — The rise of false balance in media

18:55 — The Christian Right legal movement's overwhelming Roman Catholic dominance

26:24 — How the 1987 failed Robert Bork nomination was the catalyst for the Federalist Society

33:33 — Why the current SCOTUS is “the Clarence Thomas Court”

37:46 — Liberal leaders and donors have done very little to counteract the right's legal juggernaut

44:47 — Brock’s personal relationship to the right-wing judicial takeover

50:49 — Proposals for Supreme Court reform

54:13 — The importance of media and institutions

01:00:01 — Conclusion

Audio Transcript

The following is a machine-generated transcript of the audio that has not been proofed. It is provided for convenience purposes only.

MATTHEW SHEFFIELD: I was saying before we recorded that it's a bit surreal for us to be talking [00:02:00] because the old me and the old you would have never imagined talking to evil apostates from the right that we both ended up being. But your book that we're going to be talking about here today, it is a really good illustration of how the right uses institutions to change politics, whereas the left uses institutions to make change, and the right is so focused on doing that from an institutional level and financial level. And your book just lays it all out there.

DAVID BROCK: Yeah, absolutely. Beginning with a memo that Lewis Powell wrote before he went on the Supreme Court laying out what they want to achieve and then money moved.

And you had a group like the Federalist Society, which was founded by three conservative law students that was founded as basically a debating society that over time became incredibly [00:03:00] powerful validator for-- essentially you needed their imprimatur to get a federal judicial nomination or in the George W. Bush administration, certainly any high-level executive branch positions. And they were able to do this having a sort of public facade of debating society, and then a kind of stealth operation where they were highly ideological, but people could be, appear before the Senate Judiciary Committee in a confirmation hearing and say that the parallel society, they didn't even know it had an ideology and so they could deny it and get away with it.

And so this was a very persistent group of people that, from the outside, if you don't admire the results, you can admire the steadfastness. And the focus and the money. Money was critical. Once Citizens United came down, the Federalist [00:04:00] Society coffers on the dark money side exploded. Leonard Leo, who runs the Federalist Society formed additional groups adjunct adjacent to the Federalist Society that took in tens of millions of dollars in dark money for these judicial campaigns. I calculated that in the last 10 years, The Federalist Society and its affiliates spent 750 million on these campaigns.

But when you look at it, that's a lot of money, but when you look at it, when you look at the benefit they've gotten, not only on the social conservative side, but on the big business side, the decisions that have been favorable to corporate interests, which fund the Federalist Society groups that's got to be in the billions of dollars.

SHEFFIELD: Yeah, it really is. these amounts that they put in were just down payments. That's really what they were. And yeah, but I guess before we get too far into that, though, let's, [00:05:00] can we circle back, though, just to the Lewis Powell memo and who he was for people. So for people who are not aware of who he was and the critical role that he played in cementing both this information as the Republican political strategy and then also their interest in the court.

BROCK: Yes. So he was a member of the chamber of commerce assigned essentially by the chamber to write a memo about how the Republican right could organize itself to fight what they saw as liberal dominance across the institutions of the country, which included universities media and the judiciary.

And Powell. Basically put into writing that they needed a concerted effort over many years and devote many millions of dollars to thwarting [00:06:00] this liberal threat. And it would be done by building institutions of their own that would eventually. Change the political discussion in the country and to the favor of the right.

And so this was, the theory was you could fund think tanks, you could fund academic institutions scholarships you could fund alternative media and you could fund, Organizations like the Federalist Society, which didn't exist at the time, but came to exist to exert pressure on the judiciary and to put their own folks into the positions of power.

And so this was a long-term plan. He warned that it was going to require years of work. And shortly after writing the memo. He was appointed by Richard Nixon to the Supreme Court where he was basically a pragmatic pro-business [00:07:00] conservative. But for my story and in my book, what matters is he was a trailblazer in loosening the campaign finance rules.

And on the court, he was essentially able to through the, through their decisions to enable a lot of money to flow into these conservative outfits.

SHEFFIELD: and you mentioned it only slightly, but he also Powell was a lawyer for big tobacco for tobacco companies. And they were the originators of this idea of, so there's a debate between two sides here. We have to end that the media have to cover it. These claims made by any side. Even if they're, there's no evidence for them. And the research for tobacco causing cancer, that was, pretty definitive very early on, but it took decades to overcome. This this sort of both sides framework that had been built up [00:08:00] by Powell and in many ways, I think it was like a hack of the liberal epistemology, the idea of, there's that saying that sometimes attributed to Will Rogers that a liberal is someone so broad minded that he won't take his own side in an argument and I think that's what the both sides, it's a hack of that mindset.

I don't know. What do you think?

BROCK: Yeah. No, I think that's right.

The rise of false balance in media

BROCK: And certainly this notion of false or phony balance that the right Has successfully perpetrated, has done an awful lot of damage to the discourse. And but it's been a very effective tool for them to inject what essentially is conservative or right-wing propaganda into the debate where you've got.

99 percent of scientific consensus on an issue and 1 percent funded by the coal industry, and then you've got them on cable television, you've got a climate scientist, and then you've got a right wing [00:09:00] spokesperson and they're presented as. There are arguments having equal weight.

And that that is consistent through a lot of different issues that the media deals with. And we're still dealing with that today.

SHEFFIELD: Yeah, absolutely. And with these institutions, though, It was an interesting, the palomino was interesting to see in retrospect because I think it does capture the right wing sensibility that, you know, that they are this sort of aggrieved minority or silent majority, depending on how they, who's talking and who they're talking to. But they have this sense that everyone's out to get them, that nobody agrees with them, but their ideas are still true, even though they're not provable and not demonstrable. And so they create these institutions because they feel like their ideas are not taken seriously. And of course, the reason they're not taken seriously is that they're not very good ideas. They're not, [00:10:00] if you want to say that let's say, That that there's no genetic component to homosexuality or, that it's all, Satan. If you want to believe that you're obviously free to, but it's nonsense. And, you're going to say the earth is 6, 000 years old or that just any of these variety of things, that was really what they're trying to do in many ways.

And where the tax cuts increase revenue, like there's just, it's complete nonsense what they're saying. But to a large degree, I think that, so they weren't wrong that these, that, let's societal neutral institutions were against them. But people on the left never adequately understood that if you've got people who have created this network dedicated to destroying institutions, maybe you should do something to save them and to, or at least, get them to defend themselves. [00:11:00]

BROCK: there are some ideas that are valid and there are some that are not. And you get equal time for the ones that are not in this, this paradigm that comes largely out of if you look back on it was intentional effort really to the, right use the argument of balance to get a foothold into the mainstream media.

It's how they first got for example, right when calmness published in mainstream publications and then Further to that into the mainstream cable conversations. And so it's been it was effective argument, and it was the, obviously the first iteration of Fox was fair and balanced, which, played on this notion.

They've [00:12:00] shed that now as more and more people, I think, have, come to the conclusion that at least. People who are not watching it that it's right wing, Republican Party

SHEFFIELD: Okay. Yeah, they've decided to embrace that. Especially as they face more competition from the even further right. pretending that you're a centrist. When you're just bleeding viewers to Newsmax or Right Side Broadcasting or any of these other ones, like that's not a good business proposition anymore.

BROCK: Yeah, no, it's been, it's, demonstrable that there have been times now where you can definitely chart. That Fox takes out one position and Newsmax is further to the right and then Fox changes its programming to be in concert with Newsmax, so they don't lose a rating share. Absolutely true.

SHEFFIELD: Yeah. And obviously most [00:13:00] prominently with the 2020 election that, they had originally stood by their, accurate projection that Joe Biden was going to win Arizona. And then and that the election wasn't stolen, that there was no evidence where they actually said that for, some time, or at the very least we're not promoting. Most of their people were not promoting these absurd things that Sean Hannity or something that we're talking about as the court record showed also, they didn't believe it. They didn't think it was real. and it's, but this is this whole idea of pushing this truth through power rather than knowledge that's ultimately. What I think this book and a lot of your other books are about is that if you don't have to be able to prove what you believe as long as you can force society to be governed by it.

BROCK: Yeah. and it's a very results-oriented approach. And this was [00:14:00] one of the fundamental reasons that I broke with the right was not over an issue like supply side economics doesn't work. It was real more about the integrity of the work and the conversation and the complicity that I felt for my own self being involved with what was basically even then what it took to succeed was lying. And that you did that for ratings, and you did that for an audience. And of course it’s far worse today because of the internet. But yeah, no, I agree that they have no they have disregard for any sense of truth in what they're saying.

And in fact, the opposite, that it gets rewarded.

SHEFFIELD: Yeah, absolutely. And that's why Trump, I, [00:15:00] even now, nine years after the guy came onto the scene, you're still seeing essays from, clueless liberals and centrists saying, gosh, I can't believe. That, that these evangelicals and, hardcore Christians like someone who's such a liar. And it's actually the whole movement was built on lies long before Trump, like he's just, he just does it better.

BROCK: Yeah, there's still a really fairly large body of commentators in the middle and on the left. You still can't, still haven't come to terms with Trump. And that's the group that can't believe that the election is as close as it is because they just can't fathom that there's 48 percent or so of the country that is that is enthralled by Trump or because of tribal loyalty is just [00:16:00] following along the Republican line.

But yeah, and it's, inhibited a response to Trump because a lack of understanding, understanding it as the first. The first step toward trying to work against it. And so I think that some of the some of the never Trump groups are a little somewhat better at this, I think, because they understand the right somewhat more than, the mainstream or liberal commentators do.

But yeah, there's definitely a, there's definitely a deficit of, the appreciation for how much. That how much groundwork was already laid and how much of a foundation there was already built for what Trump brought along and brought out certain segment of the electorate.

SHEFFIELD: Yeah, absolutely. and there, there's a, there's an essay from George Orwell where he talks about his [00:17:00] fellow, midcentury, or I guess early 20th century author H. G. Wells. Did you ever, have you ever seen that? It's a really fascinating piece. I can send it to you if you have it.

BROCK: Sure.

SHEFFIELD: Yeah, so basically, what, HG Wells was a pacifist socialist, and he kept writing all these things saying, Oh, Hitler is going to lose. No one likes him. He's, He called him a quote, streaming little defective in Berlin and that everything was just going to collapse. He couldn't invade anyone.

And of course that was completely wrong. And Orwell he said, let me just pull it up here. He said that that Wells couldn't understand any of what was going on because he belonged to a different century. were creatures out of the Dark Age that have come marching into the present, and the people who have shown the best [00:18:00] understanding of fascism are either those who have suffered under it, For those who have a fascist streak in themselves,

BROCK: Huh. Yeah.

SHEFFIELD: And I think that's 100 percent right about an understanding Trump that if your ideas and your constitution is so totally different from him, you should listen to people who actually understand how it works and why it works.

BROCK: Yeah, no, I agree with that. I think we agree with that as well. And that's why there's. There's always some value in defectors.

SHEFFIELD: Yeah. All so just going back to the book here. all this got started during the Nixon years, of course, and one thing that you do. Develop also is some of the religious acts aspects of this and in a lot of reporting in media about right wing religion tends to focus on evangelicals.

The Christian Right legal movement's overwhelming Roman Catholic dominance

SHEFFIELD: But there's no question that it was right far right [00:19:00] Catholics who have remade the Supreme Court in their own image, rather than evangelicals. Now, you

BROCK: that's right.

Leonard Leo, who I mentioned as the head of the Federalist Society for many years, is also a member of a extreme sect of the Catholic Church called Opus Dei, which basically preaches that you bring your religious beliefs into your daily professional life. And so to an extent for Leonard Leo, this is a religious, the abortion issue is a religious crusade.

And what he was able to do was fuse the Catholic and the evangelical religious folks with the big business interests.

And that's how basically you got both Roe overturned, but you got all these business friendly decisions rendered by the high court. And [00:20:00] that was intentional and it was a good for them.

Anyway, it made sense and was a good strategy. The problem is that if we, went down the a hundred percent, the path of Leonard Leo, we'd be in a theocracy. And so you see this in in some of the jurisprudence, for example, of Gorsuch where the right has invented this notion of religious liberty to fritter away separation of church and state and to also on, on LGBT issues issue contrary rulings on the basis of this, notion of religious liberty and so you do see, he's a lapsed Catholic but the others are the others are, current in their faith from,

SHEFFIELD: I'm sorry, you said, who, isn't lapsed

BROCK: Gorsuch is a lapsed Catholic.

He went to the same Catholic school as Cavanaugh, [00:21:00] but he's, I believe, he's not a Catholic at the moment. He converted.

SHEFFIELD: I think he's Lutheran

BROCK: Yes, something like that. but there's definitely a

Strong religious, there are Opus Dei lieutenants of Leonard Leo

working in these groups, and so there's definitely a

theme that runs through it that is resisted in discussions by the media and by Democrats the whole theme is resisted on the basis of not wanting to be accused of religious bigotry.

But the beliefs are there.

SHEFFIELD: Yeah, okay, so you mentioned that their peculiar view of religious liberty, but let's actually dig into that. What, do you mean by that? It is a complete perversion of the traditional meaning of religious freedom and it's important, I think, for people to understand that this is, now the dominant viewpoint on the right.

And the

BROCK: [00:22:00] one of the things I show in the

sort of history of the Federalist Society is that

they,

they are not just responsible for judges getting on the bench that's just the tip of the iceberg but there's a whole

system a kind of conveyor belt

of each step of the way As you get to these decisions, the Federalist Society funding things and so funding elements.

So the first is funding scholars in universities who come up with various theories that are on the edge or outside the box, whatever you want to call them, unconventional right wing theories. And these ideological hot houses come up with the theories. And then the next step is that, they

they fund plaintiffs to bring these cases. And They, find the plaintiffs and they through other right wing [00:23:00] organizations essentially get them money. And so the, that's a second A second step. And then the third step is they, what they call amicus briefs friend of the court briefs are briefs brought by organizations or entities that are not party to the to the lawsuits and, but they're influential, the judges and the justices read them and taken them into account.

what ends up happening. Is in these cases, if you look at the people who are filing the friend of the court briefs they're almost universally. Other organizations that receive money from the organized right. If not Leo directly than other donors. And so there's a, so by the time you get to the justices you have a, fully baked process by which, then you have a decision and, so to [00:24:00] circle back the this religious freedom is one of the things that would have come out of one of these Ideological attached to law schools, including some very prestigious law schools.

And then becomes part of accepted theory by the super majority on the court. And one case where they went out and found a plaintiff where this came into play was the Baker who said that it was a violation of her religious beliefs to bake a cake for a gay wedding.

Now, this was a plaintiff that was located, funded who never was approached by anybody who was gay to make the cake. So it was a basically a made up suit. And then on the On the basis of this religious liberty theory the justices upheld the position of the baker in a, fairly major case in the last, couple of [00:25:00] years.

SHEFFIELD: well, and it's this idea that, You can engage in any kind of discrimination or even flout any law, depending on who, on, some of the more radical interpretations that laws are Nolan Vellwey, if you say they're against your religious beliefs, and, this is even, Antonin Scalia, when he was alive, actually went against this idea, this was too radical for him. There was the case where, if you remember the there was a Native American tribe that was suing to be able to use peyote in religious ceremonies, but peyote was a controlled substance, and according to Scalia, that didn't matter because the state had a greater interest in keeping peyote an illegal substance, and so therefore their religious freedom complaint was invalid. But now the right has completely turned that around on its head and said that, actually some of these. Religious beliefs, [00:26:00] anything else, everything else is less important than their religious opinion.

BROCK: Yeah. And it becomes, as in the, case of, that I said it earlier, it is what you said, essentially an excuse for discrimination and that's, the way they want it to come down for sure.

SHEFFIELD: Yeah.

How the 1987 failed Robert Bork nomination was the catalyst for the Federalist Society

SHEFFIELD: And one thing that was the crucible for all of this, and really got it going in terms of letting you know, getting the right much more serious about funding takeover of the judicial system was. The failure of Robert Bork to get onto the Supreme Court after he was nominated by Ronald Reagan in 1987. And that's a, moment that you spend quite a bit on. But for people who are younger, I think they may not have heard of that incident. So maybe let's go over that real quick and what it, what were your takeaways, or the right takeaways were from that. I'm

BROCK: it was a [00:27:00] watershed moment in the history of the last certainly 40 years that I'm writing about.

So Robert Bork was one of the original faculty advisors to the Federalist Society along with Antonin Scalia, and Robert Bork gave the first presentation major speech to the Federalist Society on its first conference.

And the speech was about Roe v. Wade and the need to overturn it and that it was an attack on abortion rights. And so from there Robert Bork had a long paper trail of right wing decisions. And when, so he was appointed by Ronald Reagan it was near the end of Reagan's term. It seemed as if, Reagan even though he wasn't standing for reelection, had his standing questioned with the Iran Contra scandal.

So they wanted something to [00:28:00] reinvigorate the base of the Republican party and the conservative movement that would rally around Robert Bork. So they, picked Bork. They knew that he had this paper trail. And so in a sense they went into it knowing that it was going to be a tough fight that they might actually lose.

And that Bork would be a sacrificial lamb, which they were Probably okay with so the confirmation hearings went on all of this record came out into the public domain Robert Bork stood with his views. He didn't like. Subsequent nominees try to evade the questions. He answered them directly and the views were out of step with a mainstream America.

There was no question about that. And there was a an orchestrated liberal effort to defeat him. People for the American way and other organizations that were very [00:29:00] active back then and civil rights organizations there was a whole anti war coalition that formed and so the takeaway was.

For the right that they were victimized by basically what they viewed as a smear campaign by the left. And even though I conclude in the book that Bork. The term Borking became very popular on the right as meaning a smear campaign, but what I conclude in the book is that Bork basically Borked himself and that there was no smear campaign.

It was just an educational campaign, but the way they took it was very personally Bork was absolutely, literally one of them. And so they swore to have this never happen again. And The import of the Bork nomination really comes in later [00:30:00] starting with the Thomas nomination, where the, nominees are coached by the White House and the Justice Department Republicans to basically deny their positions.

And If you flash forward, all three of the Trump nominees, Gorsuch, Kavanaugh, and Barrett all in slightly different ways, misled the Senate Judiciary Committee as to their position on abortion and Roe v. Wade. And these were lessons that the right drew from the Bork nomination. You couldn't really be yourself.

You couldn't be honest. You'd be coached to. evade and obfuscate to skate through the nomination process.

SHEFFIELD: Yeah, absolutely. And it was in a lot of ways, a lesson that they had learned earlier in 1964, after Barry Goldwater got completely destroyed [00:31:00] in the general election against Lyndon Johnson, that, They, had an inkling that the general public did not agree with them but it didn't matter because they were going to build institutions of power to voice their viewpoint on the public anyway.

And, and then another way, another sort of pillar of, getting their nominees through besides the Federalist Society was also creating a lot of these AstroTurf organizations. Like the, you mentioned one, the Independent Women's Law Center, which of course, was said to be independent, but of course was funded entirely by Republicans. And, that, they, they have done that, going forward ever since, with all these phony, Organizations and with these neutral sounding names, Americans for consumer protection, which conveniently always seems to want companies to make shoddy products and, glute and, like that's, that became [00:32:00] a core component as well after this.

Yeah.

BROCK: Yeah, absolutely. So there's a whole, there's a whole network of organizations. some funded directly by Leonard Leo and others by other donors like the Koch brothers. And they're, they are front groups, if you will. They, are not honest about who they are and their They're formed basically as they're basically media focused groups that go out and, under this notion we were talking about earlier, balance get, quoted.

So you have the independent women's forum out there adjacent to women for Judge Thomas. And so they do. They do create these organizations also, the, friend of the court briefs. A lot of those organizations are similar in that they're you can't really tell what they are from their name.

SHEFFIELD: And we saw that most prominently [00:33:00] with But most recently with the Moms for Liberty group, which, was able to flood into school boards across the country with this very innocuous sounding name and, get people to do what they wanted to despite them having no idea where they came from or who was funding them. Yeah, and then of course after Bork failed to get onto the bench then there was the nomination of David Souter who ended up. not being sufficiently vetted from their standards. And he ended up not ruling in lockstep the way that they thought that he might have.

Why the current SCOTUS is "the Clarence Thomas Court"

SHEFFIELD: and so the, when the right got a chance to nominate again, there was, they picked Clarence Thomas and that's, And you call him, you call the current court the Thomas Court, even though he's not the judge of the Supreme Court.

let's maybe get to that point first and then we'll go back to, the confirmation of your own personal history there.

BROCK: Sure. Yeah. absolutely. The [00:34:00] Republican, presidents appointed some justices who were disappointments to the right Souter, Kennedy, O'Connor. And so the effort to overturn Roe. Which you can trace back pretty much to the time that Roe was decided suffered several setbacks along the way.

And it wasn't until Trump made a deal with the Federalist Society in the 2016 campaign that they were able to really achieve their goals. And that deal was evangelicals were skeptical. Somewhat of Trump because of Trump's personal behavior. And the Federalist Society gave lists to Ronald Re I'm sorry, Donald Trump and he, picked from those lists, his justices.

And this was publicly announced and known to voters at the time in 2016. And so that. That, that gave [00:35:00] him the good housekeeping seal of approval. And then he, did do what he said. He did pull all three from these lists. And then they did they did do what they were selected to do.

Now the reason I say that this is the Thomas Court is because in the deciding of Dobbs John Roberts loses control of the court. It, is the case that he did not favor overturning Roe. The case from Mississippi had a 15 week abortion ban. He was willing to uphold that ban, but not go all the way to reversing Roe.

There was a campaign in the press in editorial in the Wall Street Journal editorial page, which is a very, known outlet for these right wing judges. And basically the editorial revealed that [00:36:00] Kavanaugh and Barrett. We're shaky on overturning Roe and they, might side with Robert.

And so that purpose of that leak was to lock in their votes because if they then did not overturn Roe, they'd look like they turned tail and they were weak and various other things that the right would say about them. that's basically another aspect of the decision that raises questions about the whole legitimacy of the whole operation that pressure campaign, but that's, basically the Thomas court obviously nominally, Roberts is still in control, but he's proved to be a very weak justice and particularly weak.

on the issue of having any kind of accountability for the justices people probably know that the, there is no ethics regime that governs the [00:37:00] Supreme Court itself. Regulating there are rules for every other level of federal judges but none of them apply to the Supreme Court. And Roberts has done nothing but sit on and really in their own report where they do.

They adopted so called some ethics reforms it covers it all up. And I have one piece of information in the book where the judicial conference of the United States, which governs all the federal judiciary below the Supreme court was so upset about Thomas and the gifts that he was receiving and the fact that he didn't disclose them, that they wanted to Do something publicly about it and Roberts shut it down.

Liberal leaders and donors have done very little to counteract the right's legal juggernaut

SHEFFIELD: Yeah, and it's, and yet though, I get the feeling that Democrats don't really talk about this outside of Sheldon Whitehouse. Kamala [00:38:00] Harris almost never mentions the Supreme Court's radicalism, other than in the context of Roe vs. Wade. And whereas before the repeal of it, that was probably one of the most common talking points in a Republican presidential campaign.

That, we have to get, Can get the judges and you don't have to like me, but the, there is a long term future at stake here. So vote for me anyway, even if you don't like everything that I'm about. She doesn't really make that argument and I, it's an odd thing to see.

BROCK: through,

federal society to capture the court. There was no response. Democrats in some circumstances [00:39:00] enabled the right, the rights campaign.

For example, Joe Biden was the chairman of the judiciary committee during Anita Hill. He acted more as a judge and a senator, if you will, and allowed a deal to be made with the Republicans that only Anita Hill would testify and not other corroborating witnesses, which basically guaranteed that it was, he said, she said, and that this would get confirmed,

SHEFFIELD: Because, yeah, it was, she was not the only woman who had accused him

of sexually.

BROCK: There were women in the wings waiting to testify to similar behavior. And flash forward to, to right now you've got Senator Durbin as the chair of the committee. As you mentioned, Senator Whitehouse. Very outspoken on all this has written his own books about it, has done a lot to educate the public on the funding mechanisms behind the Federalist Society, but he is chafing [00:40:00] under the non leadership of Durbin, who doesn't want to take an aggressive posture toward on these issues like Thomas and the Gifts, where Thomas and his lack of recusal which we haven't discussed.

SHEFFIELD: I, yeah. They haven't even had hearings about this. yeah,

the, what's the total amount of money that Thomas has had? it's over a million

BROCK: Oh, it's definitely over a million dollars. Yeah. Because there was one trip that was a half a million and there was the RV that was worth 300, 000. So yeah, you're well over a million dollars and you're right. There, there were no hearings. And I think. The issue is very ripe for Kamala Harris.

And I scratched my own head as to why they haven't made this an issue. Hillary Clinton warned in 2016 that there would be two or three vacancies in the court under the next presidency, but nobody paid attention. It didn't get covered. And Democrats weren't [00:41:00] galvanized around it. And, even after the Dobbs decision leaked A lot of Democrats were not convinced that Roe was actually going to be overturned.

And it's all been it's, a lot of this has been mishandled.

SHEFFIELD: Absolutely, yeah, and the reason that I think that it's been mishandled is. is. what I call the, cult of constitutional law and it is primarily constitutional law professors who are responsible for why Democrats did not and still have not acted adequately in response because, they, cultivated this idea over the decades that, You know that there was a sort of a science of the law, and they had found it, and that if you just follow the law, and you knew what you were talking about, you would come naturally to progressive social conclusions, and, supporting of, expansion of the federal state or programs or regulations, like [00:42:00] you would just naturally understand that's how it was, because this is real, this is reality and we've found it and we teach it to our students and we all live in a wonderful, happy Valley with butterflies. floating around and birds singing and none of that was true. None of that was true. And they didn't understand that it was, it was almost like this to go back to H. G. Wells, like he wrote his novel, the time machine. And in, in the time machine, there was, the, these post human Eloy that lived in plenty and had all their problems in life solved. They were, vegetarians, they never had any, were never hungry, ever, were violent and then meanwhile they were being preyed upon by another tribe of, post humans, the Morlocks, who ate them and, had completely developed their own society. And it was totally unknown to them, and the Morlocks had, the Eloi had no idea what was going on, and they were just completely [00:43:00] defenseless. That's what's happened to the left, I feel in the United States.

BROCK: Yeah, not only did they not know what was happening in terms of the Federalist Society activities but the whole The whole, the big idea of the Federalist Society, originalism was never, countered by in a meaningful way by liberal scholars, judges, et cetera. And,

SHEFFIELD: And certainly not to the public,

BROCK: Not to the public.

No public case has ever been made against this notion of interpreting the Constitution very rigidly as a document that is set in stone from the time it was written and that all cases have to flow from that. they didn't know, they didn't see that coming either.

SHEFFIELD: They did not. And, and they also couldn't understand. Yeah. That the originalism, as an idea, they did that the right wing didn't even believe that either, because [00:44:00] if they did believe that, then they would not have created this, Second Amendment, Uber, Alice interpretation of the law that, Oh, you can't have any laws restricting guns because of, of the militia.

And of course, the idea was meant of the Second Amendment, as the history shows, if you had an actual originalist position on the Second Amendment, you would be in favor of restrictions if states wanted to have them on their citizens right to bear arms. Because it's the state's decision, not the government.

BROCK: Yeah, that's right. originalism is really a theory that's an excuse to get the results, political results you want, and it can be turned upside down and twisted any way you want to, just do just that.

Brock's personal relationship to the right-wing judicial takeover

SHEFFIELD: Yeah. Now, you personally saw a lot of this ideological and factual malleability in your own life because that was around when you had begun your career as [00:45:00] the nomination of Clarence Thomas to the court and you wrote a book attacking Anita Hill called The Real Anita Hill, and then that You, in writing it and then afterwards you really got invited into the inner sanctum of all this stuff.

Okay.

BROCK: Still exists, I think, on the web. But in any case there was a donor who wanted to, Go after Anita Hill and protect Thomas's reputation because he was going to be on the court for 40 years.

And I took that assignment wrote an article that turned into a book. Along the way while I was writing the book the way I put it is it had a strong viewpoint that Thomas was innocent and Hill was lying. [00:46:00] But and. It was sourced all by people who were on the Thomas side.

And yet I still believe that what I was doing was telling the truth about the situation. And so later when I got closer to these folks they were more honest. in their relationship with me and led me to conclude by various things that were said that they never believed their own friend and that he had said and done some of the things that she, Elenita Hill alleged, and that this was all just a political, game.

And that shook my foundations because I didn't think I was playing a political game. I thought I was defending what was right. And,

SHEFFIELD: Or being a

pawn of other people.

BROCK: And, I take full responsibility for what I did, but I was used and sold a bill of goods. Absolutely. [00:47:00] No question about that. And I was never really the same again after that, even though it took me some time to work my way out of the conservative world.

But that affected my the way I saw everything going forward. And it resulted in, I got a. a contract to write a book about Hillary Clinton that would be was thought to be similar hatchet job that had been done by me on Anita Hill. And I went into that with a very different set of eyes and wrote something that was much more if you want to say fair and balanced.

And, that, definitely accelerated my departure from the right because I was, all the people who had, for the Anita Hill book, trash the Hillary book because it wasn't in line with their, ideology. And it was right before the 96 election. And basically what I [00:48:00] describe is a crisis of conscience and that, as I said, took place.

Took some time to, to work itself through, but by the time Bill Clinton was being impeached in 98, I was fully against that, could, knew about a lot of the anti Clinton operations as well that I was involved in earlier in the nineties. And, Hillary Clinton talked about the vast right wing conspiracy, all that.

Conspiracy really is a wrongful scheme and I thought that was what had happened. And so that was and I started to say so and that, that was the last straw, if you will, of getting out of the conservative world.

SHEFFIELD: Yeah, and it was yet another example of how, yeah, as much as the right loves to talk about, oh, we, want to have a debate. We want to have both sides of the issue heard. In fact, they don't conduct themselves at all in that manner. They don't have debates. They don't have [00:49:00] discussions. The, only moment in recent 40 years or so, I feel like when there was any sort of debate in the and then after he won the nomination, everybody who had said that they were going to never support Donald Trump, they, fell in line and threw aside all the principles that they claimed were eternal, unmalleable turns out it was just about power all along.

Transcripts

BROCK: they don't the one of the things that are originally when I became a conservative,

Turned me off of liberals in the left was just the intolerance that I saw on, the left in some circumstances toward right and conservative and Republican views. And, it ended up being somewhat the opposite that there's no free conversation.

It's a party line, a hundred percent in the Republican party. And not only after 16, but then even [00:50:00] perhaps more egregiously after January 6th. There was an opportunity for accountability for Trump and that, pretty quickly went away when the Republicans all fell into line.

SHEFFIELD: Yeah, absolutely. okay, this is a, a very serious problem with the court and also the lower federal courts. A lot of these completely unqualified. People who are just political activists such as the judge who dismissed Donald Trump's case of his document theft case on the basis that, he had the right to do this. Because he was the president, except he wasn't the president. that's, so such astonishing thing is that she's claiming he has rights to do things as the president when he was out of office, Biden was president.

Proposals for Supreme Court reform

SHEFFIELD: so these are serious issues. And you do toward the end of the book, talk about some ideas this situation, get into that.

BROCK: Yes. I think that there's [00:51:00] at least increased awareness of the problems that are, Exist with the court. Public opinion polls show that they're really in the toilet in terms of approval ratings. And so there's, an opportunity to do something about it. You can't really do anything about it unless you have substantial democratic majorities in Congress and, or you get rid of the filibuster in the Senate.

But some of the ideas that I discuss in the book and that are out there as possibilities are we talked a little bit about ethics reform earlier. We could have an ethics regime imposed by Congress on the Supreme Court. The constitutionally, they have the power to do it. For example there is a 50 limit for what you can spend what you can give or in kind a 50 lunch or whatever it is with any federal official except on the Supreme Court.

So it seems to me, Thomas is [00:52:00] so far in violation of that, it isn't even funny that you could impose something like that and various other things that, that would constitute putting some teeth in the disclosure. Right now the justices decide for themselves whether they're going to I'm sorry, recusal recuse themselves and that, that could change as well.

You could have objective and independent sources and authorities Looking at that. So that's the ethics bucket. One thing I want to note is that even without the ethics regime, there are already laws on the books that Thomas is violating right now. With the gifts you have the 1978 Ethics and Government Act.

There are also federal laws on, recusal that he's violating. And so something Could be done. And, senators Whitehouse and Wyden wrote a criminal referral on Thomas to the justice [00:53:00] department in July. That is a route where you wouldn't have to have Congress do anything because there are, he's already a criminal and but that's in the hands of the justice department that I don't have any expectation that Merrick Garland would take it up.

But that's just a side note that there are some things right now that could be done. Other ideas are term limits. To give to have obviously more frequent turnover and give, presidents a set number of nominees, each one, the same number that would distribute. More evenly, the ideology of the court is seemingly the other idea is to expand the size of the court.

I think that has to be considered. I think that where the consensus would end up would be something more like term limits than, increasing the size. But if you really want it to solve the problem sooner rather than later. Because the term limits wouldn't apply [00:54:00] to the current court. So if you wanted to solve this problem sooner or later, you'd address the issue of the size of the court and get more true balance and representation there.

The importance of media and institutions

SHEFFIELD: And yeah, and I noticed he did not talk too much about counter institutions, though. Why was that? Transcription

BROCK: there are some, what's out there is the American Constitution Society, which was formed as a, response to the Federalist Society, but in true, liberal fashion, they actually are a debating society, which is what the Federalist Society presented themselves as, and that's about it.

So it's not really a response to the Federalist Society. We talked about there being no response to originalism and then. There are some groups that are pursuing Supreme court reform. And those are worthwhile, [00:55:00] but the problem with the reform issue politically is it's just not that sexy.

And if I were running Kamala Harris's campaign, I would have her bring up Clarence Thomas to personify. These issues and personalize it. But I don't think you'd ever, you'd probably wouldn't ever see that. But I think it would it would move some folks.

SHEFFIELD: Yeah, it certainly simplifies the issue. But, on the institutional point, though, like these institutions that the Federalist Society and all these other ones that the other people are involved in. They're very important as a way of, building an ecosystem because, I think the, going back to, this whole sort of institutions will figure things out themselves and things are, this blase attitude that a lot of people on the center left who are, who lead the institutions or are the donors that they don't understand that, Institutions don't [00:56:00] protect themselves. They are designed to be, governmental institutions are designed to be neutral and apolitical. And, things like the American Bar Association or something like that, like those are not supposed to be political. and it's good to have some non political institutions. But you can't, Those things will not protect themselves against this full scale ideological assault.

And then also, if you don't make your own countervailing institutions, you're going to make it so that people have to leave the political affair, or the political arena, because they can't afford to stay in it. that's what's happening to a lot of younger progressives in the country right now, they cannot afford to be political activists, they have to get out because there's nothing for them.

Whereas if you're on the right, you can be paid to speak at any number of conferences. There's these think tank fellowships available to you. Innumerable think tank [00:57:00] fellowships. You can have multiple of them at the same time, it doesn't matter. You can get a job at any of these publications or TV channels, There's, and then, at the same time they have talent bank organizations that explicitly recruit people and network them together and match them with employers. There's nothing like that on the left. And this is why the right wins elections as much as it can. Despite having only 25 percent of the public agreeing

BROCK: Yeah, that's absolutely right. It's a basically a cradle to graves jobs program if you're in the conservative movement and they do supply all these opportunities for getting experience and then advancing. There are nothing like the pipelines. That the conservatives have on the liberal side at all. And it does disadvantage the Democrats politically.

SHEFFIELD: Yeah, and even on the media side, the [00:58:00] Kamala Harris campaign spins that spent most of its money on, TV ads, but a lot of the money that they've spent has benefited Rupert Murdoch or has benefited Sinclair Broadcast Group, which are, part of the right wing media machine. And donors to Kamala Harris have funded right wing media without realizing. It's pretty awful, frankly.

BROCK: Yeah. it's 20 something years ago when I started Media Matters, the progressive media watchdog group. I identified as the single most, prevailing problem, this this media behemoth that the right was able to build over the years. And it's only gotten a lot bigger and a lot worse since I said that 20 years ago.

SHEFFIELD: Yeah. do you see, have any positive changes happened in the meantime on that front? Other than the [00:59:00] establishment of media

BROCK: Yeah, I think so. I think that when I started Media Matters, there was really zero appreciation for what the right had been able to achieve. And it was like people were gobsmacked to learn about it. I think there's a higher level of awareness. There may not be the level of response yet, but there's a higher level of awareness.

I feel like the culture is somewhat more aggressive than say 20 years ago. I remember when Media Matters launched that year was the year of the Swift boat veterans and the Kerry campaign being completely blindsided by it and not only blindsided, but then not responding to it for weeks.

And when there was incredible, blood all over the place on the floor. And so I think that at that level, tactically Democrats are better than they had been. But there's still, we're still too nice.

SHEFFIELD: Yeah, [01:00:00] I think that's definitely true.

Conclusion

SHEFFIELD: all right, for people who want to keep tabs on, what you're up to. You on the internet what, is your advice for them?

BROCK: one could go to the Media Matters website, which is updated hourly. And it's a very good way of finding out what's going on, particularly in right wing media that folks are not consuming. But it's a good way of keeping tabs on. It's like we watch Fox so you don't have to. And so I would direct people there.

Sure.

SHEFFIELD: Okay. Sounds good. All right, thanks for being here.

BROCK: Thanks a lot. I appreciate it.

SHEFFIELD: Okay.

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