PROVIDENCE, R.I. (WPRI) — When news broke Friday night about the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, many Americans were stunned. U.S. Sen. Sheldon Whitehouse was saddened, but not surprised.
“Some of the people in your profession who cover the court very closely had an inkling that things were going this way,” Whitehouse told 12 News on Wednesday.
Now the third-term Rhode Island Democrat faces one of the biggest battles of his 14 years in the Senate. The fight has already begun even before President Trump makes his expected nomination to succeed Ginsburg on Saturday, and as one of the Senate Judiciary Committee’s senior Democrats, Whitehouse is being looked to by his party to help lead the fight.
In fact, this week one unnamed Democratic senator told Politico that some colleagues want either Whitehouse or Senate Minority Whip Dick Durbin to take the lead on the committee for the confirmation, out of fear that the ranking Democrat — Dianne Feinstein of California — is no longer up to the job at age 87.
Whitehouse has given no indication he supports pushing out Feinstein. But he is adamant that Republicans are guilty of “hypocrisy” for pushing to replace Ginsburg with a conservative justice so close to the election, when they cited an election much further away in 2016 to deny a hearing on President Obama’s final court pick, Merrick Garland.
“I think that is an important 180 to point out to the American people, not just because it’s a 180 and not just because it’s hypocrisy, but because I think it’s one of a number of signals that something very weird is going on in judicial nominations,” Whitehouse said.
That view has turned Whitehouse into a key protagonist in America’s judicial wars. He has relentlessly criticized the conservative Supreme Court bloc led by Chief Justice John Roberts, and regularly highlighted the hundreds of millions of dollars being spent by outside groups to support the confirmation of right-leaning justices, often from donors who remain anonymous.
Whitehouse, flanked by Senate Democratic Leader Chuck Schumer, in May released a 54-page report drawing attention to what he described as “a crooked scheme” by such groups, and Tuesday he even crossed Capitol Hill to testify before a House Judiciary Committee panel on the topic. He argues that “big corporations and right-wing ideologues” are seeking to control the courts in order to gut environmental, campaign-finance and other regulations through litigation.
Republican leaders “have been able to round up votes for a nominee before they know who the nominee is,” Whitehouse said of Trump’s coming pick. “That’s a little weird. So it raises a lot of questions about what’s really going on here and what forces of influence have been brought to bear, and I think that is something that is very much worth looking at in this whole process.”
During Wednesday’s interview, the senator insisted his problem was not just the usual distaste of a liberal Democrat for conservative jurisprudence. He cited the late Justice Antonin Scalia as showing an independence from the groups he criticizes when Scalia called for campaign finance transparency as part of the controversial 2010 Citizens United decision.
“What is going on is an effort for the court to rule in favor of conservative political interests,” Whitehouse said. “There’s a very big difference between a court that will follow conservative judicial principles and get to whatever result they dictate, and a court that wants to get to results that will provide victories for Republican political interests.”
That full-throated critique has won Whitehouse many fans on the left.
“Senator, you’ve been instrumental in trying to talk about this dynamic at work, not just through the Supreme Court but this dynamic at work for judicial nominations throughout the federal court system,” Rachel Maddow, the liberal MSNBC host, told Whitehouse during an interview Monday. She said Whitehouse has helped “explain why Mitch McConnell in particular and Republicans in general have prioritized judicial nominations.”
It’s also put him squarely in the crosshairs of The Wall Street Journal’s influential editorial page, a longtime champion of Republican efforts to reshape the federal judiciary. The paper has published 19 editorials critical of Whitehouse in the past year, including one in Wednesday’s edition that criticized him for failing to answer questions under oath at Tuesday’s House hearing — questions the same editorial board had posed in a piece just a day earlier.
“We didn’t know Sheldon Whitehouse scared so easily,” the editorial writers crowed.
Whitehouse instead answered the editorial board — which he has nicknamed the “polluter page” — in a tweet that said he has received no contributions from a liberal dark-money group flagged by the paper, and that he supports disclosure rules which would “cover all sides,” not just conservatives.
As a senator, Whitehouse’s way of discussing and analyzing political issues often seems to reach back to his days as a prosecutor, when he was first Rhode Island’s U.S. attorney and then its attorney general. On climate change, he has suggested following the litigation strategy against big oil companies that brought down Big Tobacco; during the Mueller inquiry, he frequently offered his own theories about the president and Russia based on his reading of the public evidence.
That prosecutorial bent was on full display in 2018 as the Judiciary Committee explored a sexual assault allegation against Justice Brett Kavanaugh during his heated confirmation hearings. Whitehouse famously — or infamously, in the eyes of many on the right — drilled the judge about entries in his high school yearbook as part of a search for evidence about Kavanaugh’s teenage behavior.
Former R.I. Supreme Court Justice Robert Flanders, who was the GOP nominee against Whitehouse in 2018, is among those who argue the senator mishandled the Kavanaugh hearings.
“I said at the time and I still believe that it was a shameful cross examination of this man on his high school yearbook — all the things that Senator Whitehouse was asking him about that were intended to embarrass him and put him in a very bad light,” Flanders told 12 News.
“I just thought it was over the top, and I am hoping that the same kind of inquiry doesn’t take place with whoever President Trump nominates,” Flanders added.
Whitehouse dismissed the critics, expressing no regrets about how he dealt with Kavanaugh and arguing Democrats were faced with an unprecedented situation that required an unprecedented approach. He said he still believes Christine Blasey Ford’s allegation against Kavanaugh was “very credible” and that Senate Republicans engaged in a “fake investigation” of the matter.
“You can’t ignore, when somebody is about to go onto the Supreme Court, an allegation of a past sexual assault,” Whitehouse said. The questions about Kavanaugh’s yearbook were “devoted to a very legal, tight testing of the veracity of what he was saying about that central issue: are we about to put a sexual assailant onto the United States Supreme Court?”
“This is going to be totally different,” he added of the upcoming confirmation hearings. “Those questions I don’t think are going to come up in any respect. That was a one-in-a-million-type proposition, that that set of factual circumstances would arise.”
There appears to be little political risk to Whitehouse from his central role in the judicial battles. Just weeks after the Kavanaugh hearings, 61% of Rhode Islanders voted to give the 65-year-old Newport resident a third term, choosing to keep him in the Senate through at least 2024.
Yet Whitehouse is not universally beloved on the left, despite his liberal voting record and outspokenness on key progressive issues such as climate change.
Some activists see Whitehouse as too much of an institutionalist and even too moderate. He is not a perfect fit for the party’s rising progressive wing: he has expressed doubts about the current structure of the Green New Deal resolution, relished his friendship with the late Republican John McCain, and was even intrigued by Mike Bloomberg’s presidential bid.
With that in mind, progressives held a rally Sunday outside the offices of Whitehouse and U.S. Sen. Jack Reed demanding that they support efforts to grind all Senate business to a halt in order to stop Republicans from pushing through Ginsburg’s replacement.
“What is the point of being in the Senate for as long as our senators have been there, of knowing the rules so deeply, of having this much power, if not to throw sand in the gears of this illegitimate process so that Trump cannot appoint a justice who will decide our fate for generations to come?” asked former state Rep. Aaron Regunberg, who helped organize and publicize the rally.
As examples, the protestors suggested Senate Democrats should withhold unanimous consent on day-to-day matters, crippling the chamber’s ability to function; enforce a rule barring committee meetings after the first two hours of the day; force all bills to be read out loud; or block the budget.
Whitehouse poured cold water on such a strategy.
“If there were a triple secret procedural strategy that would allow us to do that, I think we probably would have done it on [Justice Neil] Gorsuch after the trick that the Republicans pulled on everybody with Garland, and I think we probably would have done it with Kavanaugh after the incomplete investigation and the sort of ramrod nature of that confirmation,” he said.
“We also know that if we’re going to take back the Senate in a race in which decency and normalcy versus Trump’s behavior is very much an issue, and Trump is desperate to try to make Democrats look as badly behaved and dangerous and odd and extreme as possible, we want to be very careful about playing into that narrative,” he added. “We want to make sure we’re being as responsible and aggressive as we can, that we do everything in our power to slow this down.”
Whitehouse demurred when asked about calls from some Democrats — including his colleague Ed Markey of Massachusetts — to “pack the court” by adding more justices if their party wins back control of the Senate in November and Republicans have filled Ginsburg’s seat.
“Democrats are very active and very passionate people — it’s kind of in our nature,” he said, smiling. “And one of the things we love is quarrelsome hypotheticals to fight with each other over. Right now I think it’s much more important that we engage in the real battle that’s in front of us, which is winning the election in November.”
But, he added, “if we take the Senate and it goes into Democratic hands, I believe that … our Republican colleagues will have forfeited any right to cry foul on any procedural maneuver that we may choose to undertake in the Senate.”
Ted Nesi (firstname.lastname@example.org) is WPRI 12’s politics and business editor and a Target 12 investigative reporter. He is a weekly panelist on Newsmakers and hosts Executive Suite. Follow him on Twitter and Facebook