OPINION:
Sen. Sheldon Whitehouse, Rhode Island Democrat, has accomplished little in his Senate career so far beyond publicly complaining about conservative Supreme Court justices and patronizing a Whites-only beach club. But in the last few years, his conduct has gone from merely embarrassing to genuinely sinister, as he has threatened justices on pending cases, hoping they rule in a way that aligns with his worldview.
The Supreme Court shouldn’t tolerate Mr. Whitehouse’s nonsense and should firmly rebuke him for his unethical behavior by removing him from the Supreme Court Bar.
In the coming days, the court will decide two cases of great importance: (1) the Fischer case, which concerns the “obstruction of an official proceeding” criminal statute, and (2) former President Donald Trump’s presidential immunity claim. Both are crucial cases to rein in the Biden administration’s lawless prosecution of Mr. Trump and his supporters.
Unsurprisingly, Mr. Whitehouse, along with Sen. Dick Durbin, Illinois Democrat, frivolously demanded Justice Samuel Alito’s recusal in both cases, on an insane basis that Mr. Alito’s wife flew “controversial” flags at their residences. In their May 23 letter to Chief Justice John Roberts outlining their recusal demands, they also requested an illegal ex parte meeting with the chief justice “as soon as possible.”
The letter threatened that the two senators would “continue our efforts to enact legislation to resolve this crisis” — with this crisis nothing more than the Supreme Court serving as the one governmental body that doesn’t operate at the whims of the radical left.
This is not Mr. Whitehouse’s first attempt to bully the Supreme Court to meet his demands. On Aug. 12, 2019, he filed a “friend of the court” brief for himself and four other senators. The case, New York State Rifle and Pistol Association v. City of New York, concerned a gun ordinance in the Big Apple.
Mr. Whitehouse’s brief was a rant over how the court is supposedly too influenced by politics. He cited a poll in which a majority supported a proposal that the court be “restructured” and concluded his brief with a threat: “The Supreme Court is not well. And the People know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
This brief did not come from a friend of the Supreme Court, but an enemy.
Mr. Whitehouse’s brief in the New York case was flagrantly unethical, but his latest letter on May 24 is even more troubling. This letter was sent to a justice presiding over a pending case. Friend of the court briefs are posted on the public docket, meaning the parties receive notice of the filings. This communication, which was an illegal ex parte letter, is a fancy way of describing a note from either a party or an outside person to a judge without informing the other party’s attorney.
Mr. Whitehouse did not notify Mr. Trump’s or Joseph Fischer’s counsel about his letter. The letter explicitly demanded Justice Alito’s recusal in Mr. Trump’s case, and it implicitly demanded recusal in Mr. Fischer’s since that case concerns Jan. 6. Parties in a case have the authority to seek a justice’s recusal, but nonparties such as Mr. Whitehouse have none. If someone sends a letter to a justice about a pending case, the lawyers for the parties have a right to know about it.
Supreme Court Rule 8.2 states that “the Court may take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar.” Mr. Whitehouse is a legal thug with a Senate seat who, emboldened by the lack of sanctions from his 2019 enemy of the court brief, is now threatening justices about pending criminal cases that dramatically affect the constitutional rights of pending criminal defendants.
Contrary to Mr. Whitehouse’s 2019 threat, the Supreme Court does not need “restructuring” to “heal.”
Instead, the Supreme Court should disbar Mr. Whitehouse. His unethical conduct is an embarrassment to the legal profession, he is a grave danger to the rights of criminal defendants, and he is unfit to practice before our nation’s highest court. If Mr. Whitehouse wishes to rant to the court in another frivolous letter, he should have to hire a lawyer.
• Mike Davis is the founder and president of the Article III Project.
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