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Sheldon Whitehouse’s risky game

The use of government power to crush political opponents is dangerous and anti-democratic

Sen. Sheldon Whitehouse speaks before the Senate Judiciary Committee on Oct. 13, 2020. Associated Press/Photo by Anna Moneymaker/The New York Times

Sheldon Whitehouse’s risky game
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As a sitting United States senator, Sheldon Whitehouse gets to live the life of the rich and famous even if he is neither. Being powerful is a good substitute, I guess. Or perhaps more particularly, the rich and famous deign to rub elbows with the powerful for their own reasons.

In all events, Sen. Whitehouse, D-R.I., has a standing invitation, for instance, to the events put on by the Democratic Senatorial Campaign Committee. “Senators are flown on a private plane chartered by the DSCC” to these “luxurious” and “lavish” “retreats,” “which are held at five-star resorts like the Ritz-Carlton,” reports MSNBC. These “semi-annual DSCC retreats on Martha’s Vineyard and in Palm Beach, Florida … always feature a large group of Democratic senators who are brought to schmooze with donors.” Senators can hang at the pool, walk the beach, enjoy the buffet, or take a private shoreline cruise with lobbyists and megadonors.

Yet Sen. Whitehouse is offended—outraged—that U.S. Supreme Court Justices Clarence Thomas and Samuel Alito have friends who have invited each one to their private homes, and those homes are, well, as nice as the houses one might find on Martha’s Vineyard or Palm Beach. And so Sen. Whitehouse, who has been on a conspiratorial jihad against the Supreme Court’s conservative majority for years, and his colleagues on the Senate Judiciary Committee are moving toward subpoenas to force these friends to disclose the details of their association.

Whitehouse’s investigation is nothing more than McCarthyism—“I have here in my hand Clarence Thomas’s Christmas card list.” This is the same sort of shenanigans that brought shame on the Nixon White House—before there was Watergate, there was the Nixon administration’s enemies list of potential candidates for IRS audits, bureaucratic harassment, and contract denials. It’s no accident the three subjects of the putative subpoenas are two successful businessmen who have been generous supporters of Republican and conservative causes and Leonard Leo, an influential conservative power-player, particularly on legal issues. The Democrats’ lawfare against Republican donors, staffers, and activists is well-known—Whitehouse’s latest stunt is of a piece with a mindset that grips the Department of Justice and other organs of power: that special counsels, subpoenas, and FBI raids are the normal tools of the trade to target the players on the other side. If they’re Republicans, they must be doing something wrong.

Whitehouse would love nothing more than for these Republican supporters to decide now is the time to step back from politics.

The supposed investigation here is especially ridiculous given its thin-as-gruel rationale. Sen. Whitehouse has been pushing a bill to impose an ethics code he has crafted on the Supreme Court. That bill has already been adopted by the Democrat-controlled Senate Judiciary Committee. So it’s hard to believe evidence is needed to inform the Committee’s consideration of a bill that has already been voted on.

In reality, this is about intimidation, institutional credibility, and feeding the political base. Intimidation is evident in subpoenas, which are a useful tool to bully people into silence. Whitehouse would love nothing more than for these Republican supporters to decide now is the time to step back from politics. Institutional credibility is at risk because the accusations cast aspersions on Thomas and Alito and make them look unethical. The insinuation is then that all of their decisions are somehow “illegitimate,” like having an asterisk in a sports scorebook after a win. And it’s about feeding the liberal Democratic base with the idea that Republicans are stonewalling an investigation to hide their dirty laundry, as though the government is entitled to see and expose the private activities of people in public life and their friends.

All three of those considerations are just symptoms of the underlying disease: Whitehouse and the Democrats are angry that the U.S. Supreme Court has a conservative majority that is actually committed to following the Constitution and respecting the rule of law. They’re beside themselves that Justices Thomas and Alito and their colleagues reversed Roe and are paring back the bureaucratic behemoth in Washington. So they’re using every tool at their disposal to attack, undermine, and bully the Court in the hopes that the justices will pause or pull back from their convictions.

I wouldn’t bet on it—these justices are made of stronger stuff than that. They took an oath to uphold the Constitution, and Whitehouse’s latest stunt is not going to throw them off course.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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