A Challenge to Whitehouse’s Banana-Republic Legal Principles

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.

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