We should know by now not to expect consistency or grounding in factual reality from Sheldon Whitehouse.
We should know by now not to expect consistency or grounding in factual reality from Sheldon Whitehouse, the Senate’s leading conspiracy theorist. Whitehouse’s campaign against an independent judiciary has included threats to the Court to influence particular cases, preposterous recusal demands, and bogus statistics. Meanwhile, Whitehouse has called for the presidency to expand its powers by “executive beast mode” (his term, not mine) and the seizure of core powers from Congress, while himself using government pressure to impose censorship of speech.
Today, Whitehouse announced that he has filed with Chief Justice John Roberts what he styles as an “ethics complaint” against Justice Samuel Alito. The main thrust of the complaint is that “Justice Alito expressed an opinion on a matter that could well come before the Court” by speaking publicly about his view that Congress does not have the power to impose a code of ethics binding upon the justices. (Whitehouse also recycles flimsy and pretextual ethics allegations against Alito himself).
This is a curious stance. Back in April, Whitehouse supported Judiciary Committee chair Dick Durbin in asking Roberts to come testify before their committee about their proposals for such legislation. Durbin wrote then:
I invite you, or another Justice whom you designate, to appear before the Senate Judiciary Committee . . . to testify at a public hearing regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules…There is ample precedent for sitting Justices of the Supreme Court to testify before Congress, including regarding ethics. . . . The opportunity for the American people to hear from Justices in this setting presents a moment that could strengthen faith in our public institutions.
Far from criticizing Durbin for asking a sitting justice to appear and comment on current and proposed ethics rules (including Whitehouse’s own proposed bill), Whitehouse issued a joint statement with Congressman Hank Johnson a few days later saying, “We hope the Chief Justice will agree to testify before the Senate Judiciary Committee to discuss the Court’s ability to enforce the disclosure laws that the justices are subject to.” Sure sounds as if Whitehouse thinks such a discussion would be ethical.
Should a controversy ultimately arise over the constitutionality of legislation governing the Court — which won’t happen soon, because there is zero chance of Whitehouse’s proposed bill passing the House — there would undoubtedly be a serious debate over whether all of the justices would need to recuse themselves, similar to questions that have arisen in controversies over judicial pay. But we’re a long way away from that. In the meantime, Whitehouse is demanding that the justices answer his questions, then be charged with ethical violations for doing so.