Dem senator slapped with ethics complaint after ‘bald-faced threat’ to SCOTUS
Screen capture … Sen. Sheldon Whitehouse … Credit: HBO

In addition to criticism coming from both the left and the right for his threatening August 12 Supreme Court amicus brief, Democrat Sen. Sheldon Whitehouse of Rhode Island has now drawn an ethics complaint.

Whitehouse and four other liberal Senators filed the controversial brief threatening to restructure, or “pack the Court,” if the current Supreme Court fails to rule in favor of Democrats, and most immediately to a gun rights case on the docket.

On Monday, conservative watchdog group Judicial Watch filed an “unauthorized practice of law” complaint with the Rhode Island Supreme Court against Whitehouse for filing the Supreme Court brief without an active law license.

The complaint also charges “the brief Senator Whitehouse filed was unbecoming of the legal profession as it is nothing more than an attack on the federal judiciary and an open threat to the U.S. Supreme Court.”

“Attacking the federal judiciary and openly threatening the U.S. Supreme Court is unbecoming for a member of the legal profession as well as a sitting U.S. Senator,” the ethics complaint states. “Senator Whitehouse’s assertion, without basis, that the Court does not rule on the merits of cases but rather on partisan beliefs undermines confidence in the legal system. It is one thing for a politician to make such a claim on the campaign trail, it is another for a lawyer to make such a charge as part of a legal proceeding. In doing so, Senator Whitehouse has violated the rules of professional conduct.”

The progressive senators who signed on to Whitehouse’s brief in the current Second Amendment case that directly challenged the impartiality of the Court were Richard Blumenthal, Mazie Hirono, Richard Durbin, and Kirsten Gillibrand.

“The Supreme Court is not well,” the brief claimed. “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,'” alluding to a possible strategy of packing the Court — increasingly being discussed on the left as a way to regain control of SCOTUS. “Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

“Senator Whitehouse’s bald-faced threat to ‘heal’ or face the consequences is inappropriate and shows just why an independent judiciary is essential to our system of government,” Elizabeth Slattery, a legal fellow at The Heritage Foundation, told the Daily Caller News Foundation. “The justices should, and most likely will, ignore attempts to intimidate them, and instead focus on what the Constitution requires.”

“And further, the facts don’t bear out Senator Whitehouse’s claim that the justices are driven by a partisan agenda,” Slattery continued. “Just look at the voting records of the newest justices, Neil Gorsuch and Brett Kavanaugh, who ended up on opposite sides in nearly a third of cases last term. That doesn’t look like the outcome-oriented judging to me.”

The brief also boldly charged that the conservative justices, dubbed “the Roberts five,” cooperate with “an industrial-strength influence campaign” characterizing conservative efforts to fund and defend certain issues that come before the Court as pushing an extreme political agenda through strategic litigation.

Whitehouse has defended the amicus brief, casting it in the light of doing the neighborly thing. “In the same way that you might warn somebody walking out on thin ice — ‘Hey, the ice is thin out there, you want to be careful, maybe you want to come in’ — I think that was the motivation for filing this brief,” the senator said.

In an interview with the Washington Post, he said that the Court needs to “urgently consider it reputation” given potentially treacherous decisions that are pending such as gun control, gay rights, and the DACA program.


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