Thursday, August 6, 2009

Whitehouse: SCOTUS Confirmation 'Most Political Thing In Washington'

Sen. Sheldon Whitehouse, D-R.I., addresses a crowd assembled outside the Capitol Building Wednesday afternoon to rally for Sotomayor's confirmation. (Credit: Amy Harder)

Sen. Sheldon Whitehouse of Rhode Island was one of the few Democrats on the Senate Judiciary Committee whom liberal legal scholars said embraced a more progressive judicial philosophy during Sonia Sotomayor's confirmation hearings (subscription). NationalJournal.com's Amy Harder spoke with Whitehouse this morning about the larger battle between conservatives and liberals over the judiciary. Edited excerpts follow.

NJ: Why do you think it is important to embrace a philosophy that counters what the Republicans have put forth?

Whitehouse: I think the backdrop to the Sotomayor confirmation is a larger struggle over the direction and control of the American judiciary. Part of why this interests me is that I've been watching it for years. The Republicans have done this in relatively plain view. They've very clearly made it their express purpose to find and groom conservative judges and put them on the court for the -- again -- often express purpose of influencing decisions and changing the direction of the American judiciary. So, the sort of manipulative hand of the Republican Party in judicial nominations is almost uncontested at this point. They would phrase it in a different way but they'd admit that they're doing that.

That then takes you back to the contest over the Framing. And, I think that on that, they're just plain wrong and it's harmful to the judiciary and harmful to American democracy to let that theory [originalism], which is in many respects a cover story for the strategic plan to influence and ultimately control the judiciary, to gain headway. It's wrong both as history and as justice.

NJ: How do you think Democrats and Sotomayor herself did in countering the philosophy Republicans have embraced and laid out to the American people?

Whitehouse: I don't think that she did. Her job was to present herself as a mainstream judge and to avoid controversy. And, I think she was very successful at achieving those goals, which left it to others to make the larger point.

NJ: And, by others, do you mean...

Whitehouse: Us.

NJ: Did you and your Democratic colleagues do that?

Whitehouse: I think we did OK. We had two jobs to do. One was to try to help confirm Judge Sotomayor. And there's a tendency in support of that purpose to try to sort of lower the temperature in the proceedings, avoid disagreement and just get her through. The second is to try to make the larger point or rebut the Republican judicial theory that supports their efforts to appoint and control the judiciary. They're a little bit in conflict with each other.

NJ: Why do you think the tendency is to downplay the liberal judicial philosophy and almost accept -- by default -- the conservatives' theory? Is it in Democrats' best interest to downplay this goal in order to get the nominee confirmed?

Whitehouse: It has less to do with the nature of the differing judicial philosophies than it does the fact of having to at the same time defend a particular candidate. My impression, although I wasn't here to participate in it first hand, but my impression as an observer and as someone who has discussed the earlier Supreme Court hearings with people who were here, was that the Republicans kind of went the same way about it themselves. They marketed [Samuel] Alito and [John] Roberts as middle-of-the-road, as thoughtful. Alito talked about how his parents and grandparents and the immigrant background would help inform his judgment about immigration cases at a time when the Republican public posture on immigration was exceedingly harsh. Which ever side has the candidate forward is inevitably less full-throated in defense of the judicial theory that they propound.

NJ: In their remarks announcing their "no" votes to Sotomayor, numerous Republicans have denounced then-Sen. Obama's votes against Alito and Roberts -- and the standard by which he came to those votes -- as perpetuating the politicization of the Supreme Court confirmation process.

Whitehouse: The Supreme Court confirmation process is the most political thing in Washington, and it would be hard to add to that. It was that way before President Obama got elected and he walked into that as a pre-existing condition.

NJ: What factors have made it so political?

Whitehouse: The very deliberate strategy by the Republican Party to try to capture the judiciary and bend it to its will is the ultimate driving factor. Sotomayor is a perfect example of that. Here is a judge who is probably a bit conservative for many tastes, who has been a prosecutor, who has served really uncontroversially for 17 years, who has the affectionate high regard of the judges who she works with, both Democratic and Republican alike. And that's not good enough.