The Lever’s David Sirota, a former speechwriter and adviser to Bernie Sanders, set the table for Whitehouse by asking him about how the public can join the resistance to the Court, which is “enabling an anti-democratic project.” With that, Whitehouse was off to the chicken races:
“Well, I think it starts with truth telling and I think the chief executive of the United States has the proverbial bully, the bulliest of all pulpits, and should be prepared to make the argument about what has gone wrong with the courts. The Biden administration was highly reluctant to do that. They completely chickened out. Biden set up that lame committee commission on the Supreme Court and then squelched both Judge Gertner and Professor Tribe when they wanted to describe some of the actual problems at the court so that they couldn’t even get that into the report.”
He then added:
“The Biden people didn’t want to go there. They were completely chicken about all that. They wanted no part of that. And it — really wasn’t until the very end, in his last speech after he and Harris had both lost that Biden seemed to have at least somewhat awakened to the fact that the Supreme Court had a real integrity problem.”
The one thing upon which we agree is that the Biden commission was a sham. At the time, I wrote a piece entitled “Is Biden’s Supreme Court Commission Packed to Fail?” I wrote about how the Administration assembled an array of far-left faculty to debate radical changes to the Court. It was breathlessly followed by the press and many on the left as figures like Tribe denounced the Court as fundamentally broken. Of course, few of these voices, including Tribe, held those views when the Court ruled their way with a liberal majority.
The commission appeased the rising radical left in the Democratic Party in a classic Washington death-by-commission strategy. They produced a report that few read and then went back to their respective faculties as happy social warriors.
It is also not surprising that Whitehouse would single out Laurence Tribe, who has attacked conservatives in vulgar terms (as well as other professors like myself). This has included religious attacks and false statements that required public corrections. He has also called for Trump and others to be charged with an endless array of crimes from attempted murder to treason.
Whitehouse was an early champion of the partisan court-packing scheme. His obsession with the plan is telling. Whitehouse has actively spread the false narrative that the justices are, to use Dean Erwin Chemerinsky’s description, partisan “hacks.” (Chemerinsky was also a member of the ill-considered commission).
It is a narrative that is entirely unconnected to reality. As I discussed in a recent column, the Court continues not only to rule against this president in major cases but also to rule unanimously or nearly unanimously in the vast majority of cases.
The portrayal of the voting pattern of conservatives as raw politics is an old saw on Capitol Hill. In the confirmation hearing for Kavanaugh, Senator Sheldon Whitehouse raised this issue, asking, “When is a pattern evidence of bias?” Whitehouse noted a voting pattern by the five conservative justices who “go raiding off together.” Whitehouse denounced how the “Roberts Five” of “Republican appointees” join in such decisions and “no Democratic appointee joins them.” He simply ignored the “Ginsburg Four” on the other side of most of those opinions. Those liberal justices are not ideologues because they are treated as manifestly right.
The false narrative is part of a concerted effort by Democratic politicians to condition voters into accepting court packing. Professors and pundits are now demanding that court-packing be an actual litmus test for Democratic candidates.
The reason is a sad statement about the state of American politics. Presented with the prospect of guaranteeing power for years by rejecting our constitutional values and traditions, politicians like Whitehouse are choosing power.
James Carville wants Democrats to hide this intended move from the public (which continues to oppose court packing). Carville told Democratic candidates: “If the Democrats win the presidency and both houses of Congress, I think on day one, they should expand the Supreme Court to 13. F—k it. Eat our dust. Don’t run on it. Don’t talk about it. Just do it.”
Former Obama Attorney General Eric Holder has put packing the Supreme Court front and center, explaining, “[We’re] talking about the acquisition and the use of power if there is a Democratic trifecta in 2028.”
It is the Nike School of Constitutional Law. Democratic leaders are pledging to “just do it” to appease the mob.
Years ago, Harvard professor Michael Klarman laid out a radical agenda to change the system to guarantee Republicans “will never win another election.” However, he warned that “the Supreme Court could strike down everything I just described.” Therefore, the court must be packed in advance to make these changes possible.
Notably, the far left is now turning on those establishment politicians who are not showing commitment to this agenda, even when they are mouthing the same rhetoric. It is the historic problem with pandering to the left. These demands create an insatiable appetite for radical change, and figures like Whitehouse will continue to fuel the rage against those, even in his own party, who show any hesitation or qualms at this moment.
Whitehouse is right that many in the Democratic Party do not “want to go” where he wants to lead them. After 250 years of the most successful Republic in history, Sheldon Whitehouse wants others to join him in a fevered demolition project. If you even pump the brakes, you are chicken in Sheldon Whitehouse’s mad rush for the constitutional cliff.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”