Bench Memos

Law & the Courts

Shame of the Senate

Senate Minority Leader Chuck Schumer (D, N.Y.) (Joshua Roberts/Reuters)

Senator Chuck Schumer’s attack on Justices Gorsuch and Kavanaugh at the Supreme Court last week unleashed a national firestorm. He was not speaking on the fly, but from a prepared speech, when he shouted, “I want to tell you, Gorsuch! I want to tell you, Kavanaugh! You have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”

Those words punctuated a campaign Schumer has been waging to hyper-politicize the bench for a generation, going back to his support in 2003 for the unprecedented filibusters of circuit court nominees who had “deeply held views.” By which he meant views that differ from his own deeply held views, and regardless of whether his views track anything actually in the Constitution.

After he became minority leader and another Republican president was in the White House, Schumer found himself the leader of a group of Senate Democrats who were glad to ratchet up their assault on judicial independence and constitutionalism to new heights. As soon as Kavanaugh’s nomination to the Supreme Court was announced, the minority leader declared, “I will oppose Judge Kavanaugh’s nomination with everything I have.” As if to answer the question of whether this meant he considered himself at all limited by ethics or even a modicum of decency, he followed by advancing one of the most vile character-assassination campaigns in American history. His Democratic colleagues joined him, often with openness about their rejection of any presumption of innocence, and so remorselessly that numerous Democratic contenders for president later called for Kavanaugh’s impeachment.

The attempt to bully the courts has extended well beyond that. 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 August, Whitehouse filed an amicus brief in the Second Amendment case before the Court involving New York City’s gun law. The brief concluded with this threat:

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.

In other words, Supreme Court, if you don’t rule as we would like you to, we might have no choice but to “restructure” you. Another term for this is court-packing.

The court-packing threat is hardly confined to Whitehouse or the four Democratic colleagues who joined him on the brief: Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand. In recent months, most of the leading contenders for the Democratic presidential nomination called for some form of court-packing.

The attacks on judicial independence, and on Supreme Court justices individually, got so bad that even Justice Ginsburg has gone out of her way to counter it, calling Gorsuch and Kavanaugh “very decent, very smart individuals” and voicing her opposition to court-packing.

So Schumer’s attack on Justices Gorsuch and Kavanaugh last week was not an isolated incident, but the latest and arguably the most brazen attack in a campaign by the Left to erode the impartiality of our judicial branch.

Perhaps it is because he has been at it for so long that the minority leader is unrepentant. Consider that he responded to his criticism with a diatribe against his political adversaries in which he inserted the remark, “I’m from Brooklyn. We speak in strong language. I shouldn’t have used the words I did, but in no way was I making a threat.” He was correct only if we ignore the dictionary definition of “threat.” The lameness of his response, which actually doubled down that there would be “political and public opinion consequences for the Supreme Court,” is just one reason it has been rightly derided.  Now he also owes Brooklyn an apology.

Not only did Chief Justice Roberts make this a rare occasion to rebuke Schumer for his statement, but a good number of liberals followed suit, from law professor Laurence Tribe, who called his conduct “inexcusable,” to the Washington Post’s Ruth Marcus, who called it “particularly egregious.”

This is a moment that poses the question asked by Joseph Welch, the Army’s counsel during the Army-McCarthy hearings: “Have you no sense of decency, sir, at long last?” In this political climate, it is unacceptable for a member of Congress to make careless and dangerous threats. Judicial independence is what makes America a republic of laws, and Schumer’s shameful, mob-like tactics have no place in our political system. The Senate should affirm that principle by censuring him.


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