When Democrats want to threaten or delegitimize the federal judiciary, they know whom to call first: Sheldon Whitehouse, the Rhode Island senator The Hill calls “the Democratic Party’s leading voice on the courts.” That voice is one of paranoia, conspiracy theories, threats, lies, smears, and hypocrisy.
Senator Whitehouse’s escalating campaign against an independent judiciary reached its highest fever pitch last August, when he and four other Democratic senators filed an unprecedented amicus brief with the Supreme Court bluntly threatening to “restructure” the Court if it did not stop issuing conservative decisions, including enforcing the Second Amendment to the Constitution:
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
This was an open threat of Court-packing tied directly to the outcomes of particular cases. Whitehouse filed a brief in New York State Rifle & Pistol Association Inc. v. City of New York, a case in which a New York City law on transportation of firearms so obviously violated the Second Amendment that both the state and city — in New York! — amended the law after the case was filed. The Court has laid down rules in past cases to stop localities from avoiding adverse decisions in this fashion, and the challengers argued that the new laws were still unduly restrictive of their rights. In New York State Rifle & Pistol, however, the Court issued a per curiam opinion reportedly written by Justice Kavanaugh that backed away from deciding the merits, treating the case as moot. Justices Alito, Thomas, and Gorsuch blasted the outcome, and Kavanaugh himself wrote a separate opinion agreeing with Alito’s “concern that some federal and state courts may not be properly applying [DC v.] Heller and McDonald [v. Chicago]. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
That didn’t happen. According to reports from anonymous leakers to CNN’s Joan Biskupic, the outcome in New York State Rifle & Pistol and the failure to hear any more Second Amendment cases was the direct result of Chief Justice Roberts’ hesitancy to take stands on the issue:
CNN has learned that resolution of that case took many twists and multiple draft opinions. Guided by Roberts, Justice Brett Kavanaugh crafted much of what turned out to be an unsigned “per curiam” opinion. . . . It takes four votes to accept a case and five to rule on it, and sources have told CNN that the justices on the right did not believe they could depend on a fifth vote from Roberts, who had in 2008 and 2010 voted for milestone gun-rights rulings but more recently seemed to balk at the fractious issue.
Roberts caving to threats to the Court as an institution, and to its public legitimacy, is by now a sadly familiar spectacle. Whitehouse knew exactly what he was doing, it worked, and he will do it again.
Rejecting the legitimacy of any court that issues a ruling he dislikes as hopelessly corrupt is standard operating procedure for Whitehouse. This op-ed is typical of Whitehouse’s system-is-rigged rhetoric:
What if one team spent years and millions of dollars to capture the referees, so the refs could declare that team the winner whenever they fell short on the field? If you were on the other team, you’d cry foul. You’d ask: “Hey, when did the law become a team sport, too?’’
. . . Americans can smell a rat. The pattern is too distinct to ignore. We warned the court of polls showing that the public’s faith in the court’s independence is eroding.
Typically of people who traffic in this sort of paranoia, Whitehouse gets even uglier after a decision does not go his way. The legal saga of Michael Flynn has faced its own torturous history, with a panel of the D.C. Circuit ordering the dismissal of the case, followed by the en banc Circuit recently deciding to rehear that dismissal. There are serious reasons why the Justice Department was right to abandon the Flynn prosecution, and difficult questions about when courts can and should demand the continued enforcement of a guilty plea when the prosecution itself wants to drop it. But for Whitehouse, channeling Donald Trump’s “so-called judge” rhetoric, the only possible explanation for an adverse ruling is a dark conspiracy; thus, he tweeted, “‘Judge’ Rao delivers the coverup she was put on the court for,” and ranted about “how flagrant ‘Judge’ Rao’s decision is, covering up Flynn scandal.” “Where you see Neomi Rao,” tweeted Whitehouse, “you can expect a lot of Trumpy dirt to follow. She’s a cartoon of a fake judge.”
Neomi Rao is, of course, the daughter of Indian immigrants and a Senate-confirmed federal-appeals judge with a stellar resume: graduate of Yale and the University of Chicago Law School, on the law review, Supreme Court clerk, white-shoe law firm, law professor, co-chair of an American Bar Association committee. But to Whitehouse, a single ruling he doesn’t like means “Judge” goes in scare quotes. Whitehouse’s particular crusade to smear Reo is longstanding. In another case, he tweeted that she was a “@FedSoc stooge . . . This is why Trump is packing the courts with political hacks. If there were more on this panel, they’d have covered up for him.”
During her confirmation hearings, Whitehouse launched an intemperate and false attack on an academic research center Reo founded, claiming that it was bankrolled, bought and paid for by his favorite Emmanuel Goldsteins: the Koch brothers and the Federalist Society. Adam White detailed at length why Whitehouse’s antics were “beneath the dignity of the Senate” and “a dangerous threat to democratic discourse and academic inquiry”:
Whitehouse’s conspiracy theory seems to be twofold: that Neomi was wrong when she disclaimed these particular funders (she’s not wrong), and that the Center’s work is dictated by those who have donated money to it (it’s not). . . . Whitehouse’s persistently wrong assertions seem to parrot press coverage of the Koch Foundation’s and anonymous donor’s combined $30 million donation [to the law school, not the center] in 2016. Those press accounts, in turn, drew the wrong conclusions from university documents released under the Virginia Freedom of Information Act.
As the FOIA’d documents show, the school earmarked all $30 million for student scholarships. The documents further show that school officials noted the possibility that the school might increase support for research programs like the Center for the Study of the Administrative State. (See, e.g., pp. 285–286 of this big PDF file from the FOIA results.)
But that hypothetical possibility never came to pass because, in actual reality, the Center succeeded in fully funding itself through the support of other foundations and private donors, which is why Judge Rao repeatedly stated during her confirmation process that the Center never received funding from the Koch Foundation or the anonymous donor. (Emphasis in original)
Whitehouse’s conspiratorial bent runs deep. As Carrie Severino, who has covered his jeremiads at length, has noted:
Senator Sheldon Whitehouse routinely accuses those he disagrees with, including the justices he calls the “Roberts Five,” of being corrupted by money. In January 2019, he wrote Chief Justice Roberts criticizing the Court for accepting amicus briefs from “special interest groups that fail to disclose their donors” and adding that “a legislative solution may in order” if the practice continues. Whitehouse’s selective outrage is darkly comical when we consider that the senator himself has filed amicus briefs siding with parties and attorneys who donated to him. Or when we consider the attempt to silence the Federalist Society by the Committee on Codes of Conduct, a member of which is Whitehouse’s friend and former donor, John McConnell, now a district judge thanks to the senator’s efforts.
In launching a witch-hunting congressional probe into the Federalist Society and Leonard Leo, Whitehouse spun a fantastical web for the Washington Post’s Paul Waldman:
Leo, the senators’ letter says, is “at the center of a complex network of nonprofit groups and shell entities funded largely by anonymous donors.”. . . First, Whitehouse says, “Supreme Court judges are selected by the Federalist Society.” But, crucially, Whitehouse adds that this group also “has a huge dark money operation behind it.” . . . But as Whitehouse asserts, the Federalist Society doesn’t just produce Supreme Court justices: These days it chooses them. When he ran for president, Donald Trump put out a list of 25 people he’d consider for the court; 24 of them either were Federalist Society members or had ties to it. Leo was advising Trump then as now, providing him with names to put on not just the Supreme Court but appellate and district courts as well.
Of course, to anyone remotely familiar with how the Federalist Society works, this completely skips over the distinction between the organization — which hosts debates and conferences and does not (unlike the American Bar Association) even take positions on public issues — and Leonard Leo, who has since moved on to his own political operation. The notion that the Federalist Society as an organization actually selects judicial nominees is fiction. The fact that the judges on Trump’s list were mostly Federalist Society members is unsurprising, given how many conservative lawyers and judges belong to the group. Meanwhile, Whitehouse has been lending cover to openly biased efforts to force judges out of the Federalist Society, but not the ABA. As usual, what would be utterly unremarkable among liberals is cast as a shadowy cabal by Whitehouse. When the plan was scrapped last week, Ben Sasse snarked, “Senator Whitehouse can hyperventilate about the Illuminati all he wants.”
It’s not just the Federalist Society; one district court nominee, Peter Phipps, was grilled by Whitehouse over his membership in the Knights of Columbus, a 140-year-old fraternal organization of Catholic men around the world dedicated to charitable activities and the faith. Whitehouse demanded that Phipps answer questions such as “Must you swear an oath in order to join this organization? If so, what is that oath?” He asked another nominee about being an Anglican, given that his church believes “marriage to be a life-long union of husband and wife” intended for “the procreation and nurture of godly children” and entailing “God-given” “roles of father and mother.” How deep the conspiracy runs! I understand there is even a book such churches circulate that carries these same messages.
During the Kavanaugh hearings, Whitehouse received one of the wackier allegations against Kavanaugh, from a Rhode Island man peddling a claim that Kavanaugh sexually assaulted a woman aboard a Newport boat in 1985. The man later apologized for the made-up story: “Everyone who is going crazy about what I had said I have recanted because I have made a mistake and apologize for such mistake,” the man said. When Whitehouse received the charge, he referred it (appropriately) to the FBI, but he didn’t stop there: He also referred the man to a reporter, then had the effrontery to act offended when the man’s name became public. Instead of apologizing for a patently false smear of Kavanaugh, Whitehouse demanded that Republicans apologize to the false accuser. And Whitehouse has vowed to reopen the Kavanaugh circus: “As soon as Democrats get gavels, we’re going to want to get to the bottom of this.”
Conspiratorial musings about dark money and secret conspiracies are also a regular motif for Whitehouse even outside the judicial area. In 2016, he took to the Senate floor with a comically Byzantine map of a so-called conspiracy to spread “climate denial”:
As Occupy.com glowingly described the theory of Whitehouse and his co-sponsors, their
resolution condemns what they are calling the #WebOfDenial — “interconnected groups — funded by the Koch brothers, major fossil fuel companies like ExxonMobil and Peabody Coal, identity-scrubbing groups like Donors Trust and Donors Capital, and their allies — developed and executed a massive campaign to deceive the public about climate change to halt climate action and protect their bottom lines.
By now, this should all sound familiar. With a flourish recognizable to anyone who has ever watched a YouTube exposé of a “conspiracy,” Whitehouse concluded:
Franklin, Jefferson, Madison, Locke . . . these are great names put on the front of very shady, Koch-funded front groups in the #WebOfDenial. And the organizations share several common features. First, they all propagate what by any reasonable scientific standard is preposterous nonsense, and masquerade it as science and independent opinion. Second, they all get massive funding from fossil-fuel interests, and line up always, obediently, with those interests. Third, they interlock. The interlocking is almost too complicated to track, in staff, in board members, in funding sources. But it all traces back to fossil-fuel money.
Other times, Whitehouse just goes straight to his imagination. In pushing the theory in early 2017 that Jeff Sessions was some sort of bag man for collusion with Russia, Whitehouse told CNN:
“You can imagine a set of circumstances in which the Trump campaign gave him talking points [and] he was a message boy for them. . . . There was a content related to the relations between U.S.A. and Russia, favorable to Russia that would have encouraged them to support the Trump campaign. And then he returned back to the Trump campaign and said, ‘Done it, you know, mission accomplished here,’. . . And if that were the case it would be really, really hard to believe that he didn’t remember that.
You can imagine. This is straight-up fiction, accusing the attorney general of the United States of conspiring with the Russian government, on national television, without evidence. All that was missing for the full Joe McCarthy was waving a piece of paper and claiming there were names written on it.
Whitehouse’s dire warnings about “Captured Courts: The GOP’s Big Money Assault on the Constitution, Judiciary and Rule of Law” apparently don’t apply to his own conduct, including the very groups he recruits to his causes:
Democratic Sen. Sheldon Whitehouse has repeatedly warned against the dangers of “dark-money” political groups taking millions of donations from special interest groups, arguing, when pressed, that he’s equally concerned about both liberal and conservative groups that don’t disclose their donors. But the Rhode Island senator apparently sees no contradiction in giving speeches to liberal groups that accept money from secret Democratic donors, as he did last week, telling the audience that GOP dark money is undermining the U.S. judiciary and the rule of law. Additionally, Whitehouse told a reporter last year he would accept donations from liberal dark-money groups.
Whitehouse’s shallow, transparent hypocrisy is hardly limited to money. He may rail at nominees who belong to churches and charitable organizations, but Whitehouse himself in 2017 refused to leave his membership in an all-white beach club:
“I think it would be nice if they (Bailey’s Beach Club) changed a little bit, but it’s not my position” Whitehouse told Nagle. When asked if he would pressure the club to push for diversity at the all-white club], Whitehouse said, “I will take that up privately.”
The beach club had been under scrutiny for years, and Whitehouse had promised in 2006 to quit it, so this was no ambush.
In October 2019, he tweeted about Trump and some of his allies and advisers, “I have a theory: some old white men in politics fear irrelevance as death, and will do anything for relevance — taking whatever deal with the devil is necessary.” Imagining again. Old white men shouldn’t cling to power, because they are old, white, and male? Funny, this from the same Sheldon Whitehouse who, at age 62 in 2018, faced a female primary challenger and did not step aside; he opposed her, and defeated her.
None of Whitehouse’s antics meet with disapproval from Democrats. To the contrary, Democratic Senate minority leader Chuck Schumer told The Hill, “I can’t say enough about Sen. Whitehouse and his relentless pursuit of this area of captured courts.” That speaks volumes.