MASTER PLAN Bonus: How Democrats Lost The Courts

In this exclusive Master Plan bonus episode, David Sirota interviews former Senate Leader Tom Daschle, who led Democrats’ fight against George W. Bush’s plan to pack the federal courts with conservative judges — and paid the ultimate political price.

Daschle’s success stalling Republicans’ judicial picks in the Senate made him a prime target of the master planners — so they had him ousted from Congress and filled his South Dakota Senate seat with their own corporate candidate.

Sirota and Daschle discuss the Federalist Society’s influence in transforming the judicial nomination process into an ideological purity test. They also weigh in on the last major campaign finance legislation — the McCain-Feingold Act of 2002 — and whether similar reforms could even be possible in post-Citizens United America.

Bonus Episode Transcript

DAVID: Hey Master Plan listeners. First off, thanks for being a paid subscriber. Your support makes this project possible and funds all of our investigative work at The Lever. Please enjoy this exclusive bonus episode for paying subscribers. 

In Master Plan Episode 8, Shock and Awe, you may remember hearing about Senate Democratic leader Tom Daschle. In the early 2000s, when I was working on Capitol Hill, Daschle was Democrats’ bulldog in the upper chamber, taking on President George W. Bush on issues like tax cuts for the wealthy, corporate wrongdoing — and Republicans’ push to pack the federal courts with conservative judges.

Daschle proved to be a major thorn in the side of the Master Planners; and for that, he was punished — losing his South Dakota seat in Congress to Republicans’ hand-picked corporate candidate, John Thune, in 2004.

As part of our research for Master Plan, I spoke to Tom Daschle about what he remembers about the fight over judicial confirmations during this key period for the future of the courts. Here’s the extended version of our discussion just for our Premium subscribers.

Okay, so that’s a good place for us to start, the early 2000s. For those who don’t remember it, for those who are not as old as us, to remember it, the beginning of the Bush years. Why don’t you, for those who didn’t live through that time, just explain, give them a sense of what it was like to be a Democrat, leading the Democratic Party at a time after September 11, where it was the lead up to the Iraq War, there was all this fighting about Bush’s judges like just just a sense to somebody who didn’t experience it. What was that political environment like?

TOM DASCHLE: Well, the environment was really a stark contrast to over a period of time, I say a contrast, because right after September 11 there was a great deal of unity and cooperation and collaboration. We met every Tuesday morning with President Bush to talk about how we might address the extraordinary challenges we faced after September 11.

A month later, there was an anthrax attack in my office, and that generated even further cooperation that lasted about six months, and then President Bush obviously migrated from September 11 to the war in Iraq and and his huge tax cut, and that generated a great deal of political division that played itself out for the next couple of years. I would emphasize, however, it was really the dawn of cable news and almost nonexistent social media. So the media was a lot different back then. It was still largely traditional media. It didn’t generate the kind of deep divisions and tribalism that we have today, but there were signs that [it] was kind of moving in that direction.

DAVID: Were there still scars from the 2000 election and the intervention by the Supreme Court to stop the count in Florida? Like did that? How did that, I guess, overlay the political situation in that era?

TOM DASCHLE: Well, the ’90s were also a stark contrast in two different ways. We had another period of great collaboration. We produced three balanced budgets over a period of three years at the end of the ’90s, due in large part to H.W. Bush and his willingness to put revenue on the table. We had to go through an impeachment, if you recall, with Bill Clinton, we had the Clarence Thomas debacle. So all of that generated both cooperation and contrast. And then you had, ultimately, the Supreme Court five-four decision electing, for all intents and purposes, George Bush. So it was a very complicated and extremely contentious and challenging time for anybody in leadership.

DAVID: One of the things that passed, actually after September 11, was something that President Bush didn’t seem incredibly enthusiastic about, but he was kind of forced to sign. It was the McCain-Feingold bill. You were Senate Majority Leader at the time in 2002 — tell us a little bit about that fight. Who was pushing back against it, how it ultimately got done, despite the opposition from a lot of very powerful moneyed interests?

TOM DASCHLE: Well, it was really, I have to give great credit to John McCain and Russ Feingold for the incredible persistence and willingness to compromise that we witnessed over and over again. You’re right. Mitch McConnell in particular was one of our strongest opponents, but we had virtually the entire lobbyist community opposed to it, but there had been a number of issues around how much money was distorting campaigns. Even back then, it must be 10 or 20 times worse today, but it was already out of control, and John McCain was determined to do something about it, eliminating what we then called “soft money” — that is, unrecorded money. And for a while, it worked, but it was a real effort, I think, to try to address the many challenges we have even today around fundraising that have only gotten worse in 20 years. 

DAVID: So it feels like something like the McCain-Feingold bill would have no real shot at passing right now, or something an updated version of it right now. I think the question then becomes, well, okay, what was different back then? That doesn’t exist right now. Whether it’s there’s just no John McCain in the Senate, or there’s something. Structurally, that has changed in your view?

TOM DASCHLE: Well, there are several things that have changed. First, you’re absolutely right. There is no John McCain. We don’t have a champion today. We have people that have certainly advocated for change and supported reform on many different levels, but no John McCain. That’s number one. 

Number two, there’s no social media. I should say there was no social media back then, virtually. And I think social media and cable news has really had a profound and consequential effect on politics generally in this country. 

Third, I don’t think anybody sees it as a real possibility. They’d rather put their priorities in locations, policy wise, to have more potential for meaningful movement. And there’s no one who would argue today that meaningful change — we’re going to spend over $2 billion on the presidential race alone in this cycle. Outrageous. But Citizens United changed all of that. And as long as Citizens United is viable and part of the law, I don’t think, I don’t think you’re going to see any change.

DAVID: That’s a good segue to how Citizens United happened. One of the things that President Bush had notably tried to do after the election was start focusing on judges. The Senate obviously has its role in confirming judges. There was a huge battle that we track in our audio series about the White House’s focus — almost, frankly, in some ways, it seems like to people thinking about what was going on back then, almost a weirdly bizarre obsession — with judges, even while all this other stuff is happening. 

And they, they kind of made you out to be the biggest impediment, the biggest obstacle to confirming their lower court nominees to start, and then obviously, there were the Supreme Court battles after that. What do you make of their focus on judges? What was that all about? What do you make of their accusations that you as the leader of the Democrats and the Democrats at large were unacceptably opposing and trying to stop their nominees?

TOM DASCHLE: Well, you have to go all the way back to the Bork decision, first of all, and the Senate vote on Bork. And then even probably more relevant to your question is the Clarence Thomas vote. Clarence Thomas was confirmed, 52 to 48, and there was a lesson in that for many of us. We realized that somebody as extreme as Clarence Thomas, with all the personal baggage that he had, he was able to sustain his confirmation in large part because the feeling was Democrats really didn’t put up enough of a fight like we had for Bork. 

And so the debate over judges became much more ideological in the ’90s, and the fight became even more relevant to the Senate agenda and the agenda of any president. From then on, Republicans were determined to put more ideological judges in these positions, and the Bush administration was demonstrative of that. In particular, I don’t think that’s really changed in two decades, but that is where it all started, way back with Bork and Thomas.

DAVID: The question about the ideology of judges in your career, talk about whether there was a change in, in particular, in Republican nominees for judgeships. Did they become more ideological in the later parts of your Senate career? And if so, why do you think that is what political forces were at work to change, if there was a change, to change the kinds of nominees they were putting up?

TOM DASCHLE: I think the conservative movement gets a lot of credit. And I mean that sincerely. I don’t think Democrats have come even close to, or the progressive community has come even close to, to the coordinated and orchestrated way that they have affected. 

I give Senator Schumer great credit for putting a real high priority on confirmation of judges over the last couple of years. But the Federalist Society and the conservative organizations that became much more vocal, much more determined, much more assertive in the ’90s and the early 2000s, and produced results. Yeah, they had a huge impact on the Bush administration. 

And so the sad thing, and I really mean this as sincerely as I can state it, the sad thing is now the perception that the whole judicial infrastructure has been politicized, especially the Supreme Court, and that has undermined people’s confidence in the decision-making and the perception of the court. I don’t think the Supreme Court has ever had a lower public perception, favorable public perception, than they have now, and the reason why is because they’re viewed as ideological, as political with an agenda, and we’ve seen that just as late as just this year, of all of the far right decisions they’ve made,

DAVID: Do you think the effort to create a more ideological, really more partisan judiciary, all the way up to the Supreme Court? What do you think about the theory that says that the conservative movement understood that if they could turn that branch of government the least democratically accountable branch of government, one that doesn’t have to face elections, that if they could make that a kind of super-legislature, that they wouldn’t have to worry as much about the Congress or the presidency? 

I guess what I’m trying to get at is how much of the focus on judges by the conservative moving movement and the judiciary, how much of that do you think was rooted in something anti-democratic, or trying to insulate their movement, their movements gains and power from the more democratic, small-“d” democratic branches of government?

TOM DASCHLE: I think the conservative movement, and again, I give them credit in some ways, for their perception here and their strategy. I think they realized that if they could influence and create an infrastructure within the judiciary that accommodated their agenda. There was, as you say, no real accountability. There was no way to address the outcome that that would resolve. I’m just astounded at what has happened with Roe v. Wade and with immunity and the kinds of things that have happened just in the last year.

Twenty years ago, I would have never dreamed that anything like that would have happened, but it’s clearly those are examples of just how successful the far right has been, and it has had profound and transformational consequences, not only in public policy, but I think in our whole democracy and the future as is perceived today. 

DAVID: So in your 2004 reelection run, the judge issue became a pretty significant part of John Thune and the Republicans’ campaign against you. One question that’s come up is prior to that race, were lower court judicial nominations something that you’d hear from, from your constituents, did that race pivotally elevate that set of issues in a way that you hadn’t seen before.

TOM DASCHLE: Well, I think the reason is that campaigns spent billions of dollars making it an issue, and they were successful in doing so to a certain extent. I think abortion was a far bigger issue in my race than judges were, but the film campaign focused on it as, probably, an example of my opposition to the Bush administration, which, at that time, right after September 11 and with the Iraq War, President Bush was very popular in South Dakota.

And so anything that was an example or a demonstration of opposition to the Bush administration was seen as a political liability, and because of the President’s great popularity, so they used it as the vehicle to make the larger issue. I think I’m not sure that the judge issue in and of itself, was that consequential. 

DAVID: It’s kind of like a proxy, like, “Oh, here’s another, another example of the way Tom Daschle is getting in the way of the, you know, the wartime president, or the president running for reelection.”

TOM DASCHLE: Absolutely. I mean, that was really the larger context. You know, the war in Iraq. I had made some critical comments about the way the war was being conducted and how it actually generated and then the judges and abortion. There were a lot of issues that were not ones that the Bush administration were. It was on the other side of the Bush administration’s agenda and that combination, given Bush’s popularity, and he was, of course, on the ballot in 2004 as well. I think he won South Dakota by 22 percentage points. So getting crossover was our challenge, and we did pretty well, just not well enough.

DAVID: Do you think that actually, for either party, that there can be — in this era, in the current era — a Senate leader, a House Leader of their party from a state that’s purple, or the other parties, you know, deep blue or deep red. I mean, is it? Are we beyond those days? Now? Is that even possible anymore?

TOM DASCHLE: I’m inclined to think that it isn’t. I hate to admit that, but you look at what’s happening in Montana, Jon Tester is about as good a candidate and has been a solid senator as you can get, and he’s got a tough race. Sherrod Brown in Ohio. I mean, you’ve got really highly qualified and extraordinary statesmen who do all the right things, whose races are in jeopardy this year, and so to add to that, a leadership role seems almost an impossibility today.

DAVID: One last question here, about the link back to big money and polarization. I’m just curious if you think that the rise of hyper-polarization, and we’ve been doing research in this, in this series, back to the, you know, the ’70s, the ’80s, where, you know, you had liberal Republicans and you had conservative Democrats, and there were bills, you know, the McCain-Feingold bill, right, these bipartisan measures, and it wasn’t so tribal, so polarized. I’m just curious if you think that the polarization, the hyper-polarization, that we’ve seen in the last 20 to 25 years, at the same time, concurrently, there is this rise of going from big money politics to huge money politics. Whether these two things work together, whether the moneyed politics creates the polarization or the polarization creates the money politics. Just the interplay between the two — like, what is the relationship? Do you think they’re inextricable? 

TOM DASCHLE: All you have to do is to see what Elon Musk has done with X over the last couple of years. Big money has generated hyperpolarization. Hyperpolarization has generated an opportunity for even bigger roles for big money today, so they’re interrelated, and it’s not going to change until we can find champions like John McCain who are able and willing to put their careers on the line and say, ‘Enough.” If we’re going to salvage our democracy, we’ve got to deal with the big money challenges.

DAVID: That was former Democratic Senator Tom Daschle. If you’re not already following our weekly news podcast Lever Time, you should. It’s already part of your paid subscription to the Lever! Just email us at support@levernews.com and we’ll get you set up, if you’re not set up already.

There will be plenty more Master Plan bonus content throughout the season for premium subscribers like you. This episode was produced by Ronnie Riccobene with help from Jared Jacang Maher. Thank you so much for supporting this ambitious project. Rock the boat.