A Challenge to Whitehouse’s Banana-Republic Legal Principles

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Judicial Watch, which describes itself as “a conservative, non-partisan educational foundation,” has filed a complaint against U.S. Senator and Rhode Island resident Sheldon Whitehouse:

Senator Whitehouse’s filing of a brief on behalf of clients without an active law license anywhere in the country is inexcusable. Senator Whitehouse’s attack on the federal judiciary and open threat to the U.S. Supreme Court raises substantial questions about his character and fitness to practice law. His actions warrant a full investigation by the Unauthorized Practice of Law Committee.

At issue is an amicus curiae brief that Whitehouse filed as “counsel of record,” along with three other Democrat Senators in the case of New York State Rifle & Pistol Association v. City of New York.  

While we should be generally wary of efforts to limit participation in politically fraught legal debates only to people who happen to be lawyers, Judicial Watch makes an important distinction: “It is one thing for a politician to make such a claim [attacking the Supreme Court] on the campaign trail, it is another for a lawyer to make such a charge as part of a legal proceeding.”  That is, Whitehouse is the one choosing to blur the line between politics and legal debate.

Frankly, his method makes a mockery of both.  Take this cheeky bit of legal gamesmanship:

The judiciary was not intended to settle hypothetical disagreements. The Framers designed Article III courts to adjudicate actual controversies brought by plaintiffs who suffer real-world harm. This reflects the Framers’ intent that the judiciary “may truly be said to have neither force nor will but merely judgment.” The Federalist No. 78, 464 (C. Rossiter ed. 2003) (A. Hamilton) (capitalization altered).

The rationale for this long-settled principle is simple: “this Court is not a legislature.” Obergefell v. Hodges, 135 S. Ct. 2584, 2611 (2015) (Roberts, C.J., dissenting). “It can be tempting for judges to confuse [their] own preferences with the requirements of the law,” id. at 2612, and to legislate political outcomes from the bench. But a judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (Yale Univ. Press 1921). Accordingly, justiciability doctrines, such as standing and mootness, have evolved to serve as an “apolitical limitation on judicial power,” confining the courts to their constitutionally prescribed lane. John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219, 1230 (1993). In short, courts do not undertake political “projects.” Or at least they should not.

If you miss the cheek, it might be helpful to know that Obergefell v. Hodges was the case in which the Supreme Court redefined marriage to exclude the sex of the members as a criterion.  Whitehouse’s written interrogation of a Christian nominee for a judgeship gives the strong impression that the Senator supports the decision in Obergefell.  For Whitehouse to cite the chief justice’s dissent in that case, which suggests that the court was acting as a legislature, is a deep, callous sort of cynicism.

However much plausible deniability Senator Whitehouse may have left himself, his principles (if they can be called such) are clear:  The Supreme Court can only behave as a legislature when he agrees with what it is doing.  This banana-republic view of our system of laws may or may not be disqualifying for a lawyer, but it ought to be disqualifying for a senator.



  • bagida’wewinini

    All of Judicial Watch targets are Democrats with Hillary Clinton being the most attacked. Senator Whitehouse’s inclusion can only mean that he has effectively led the opposition against the politics of Judicial Watch’s sponsors and fellow activists

    https://en.wikipedia.org/wiki/Judicial_Watch

    • Rhett Hardwick

      Most conservatives would probably be regarded as “strict constructionists”. Taking the attitude that the Constitution means exactly what it says, and no more. I wonder why real estate brokers should fear “practicing law without a license” and senators should not. Dismissing a Constitutional case can have many meanings including that it is not yet “ripe”. Meaning the edges are being skirted, but a line has yet to be crossed.

    • ashaway

      Craphouse does nothing for the state, just hangs out at his all white beach club.

  • ashaway

    Whitehouse should be taken into custody for threatening the Supreme Court.

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