Matthew Whi­taker is a crack­pot

Post Tribune (Sunday) - - Opinion - By Ruth Mar­cus Ruth Mar­cus is a colum­nist for the Wash­ing­ton Post.

The act­ing at­tor­ney gen­eral of the United States is a crack­pot.

Matthew Whi­taker, in­stalled in the job by Pres­i­dent Donald Trump to re­place Jeff Ses­sions, was asked in 2014, dur­ing an ill-fated run in the Repub­li­can sen­a­to­rial pri­mary in Iowa, about the worst de­ci­sions in the Supreme Court’s his­tory. Whi­taker’s an­swer, to an Iowa blog called Caf­feinated Thoughts, was chilling.

“There are so many,” he replied. “I would start with the idea of Mar­bury v. Madi­son. That’s prob­a­bly a good place to start and the way it’s looked at the Supreme Court as the fi­nal ar­biter of con­sti­tu­tional is­sues. We’ll move for­ward from there. All New Deal cases that were ex­pan­sive of the fed­eral govern­ment. Those would be bad. Then all the way up to the Af­ford­able Care Act and the in­di­vid­ual man­date.”

Rea­son­able peo­ple can dif­fer over the con­sti­tu­tion­al­ity of the Af­ford­able Care Act. Maybe there’s some space to de­bate the New Deal-era cases that ce­mented the author­ity of the reg­u­la­tory state. But Mar­bury? This is lu­nacy. For any lawyer — cer­tainly for one now at the helm of the Jus­tice Depart­ment — to dis­agree with Mar­bury is like a physi­cist de­nounc­ing the laws of gravity.

De­cided in 1803, at the dawn of the new re­pub­lic, Mar­bury v. Madi­son is the foun­da­tional case of Amer­i­can con­sti­tu­tional law. It rep­re­sents Chief Jus­tice John Mar­shall’s dec­la­ra­tion that the Supreme Court pos­sesses the ul­ti­mate power to in­ter­pret the Con­sti­tu­tion and de­ter­mine the le­git­i­macy of acts of Congress.

In Mar­shall’s fa­mous words, “it is em­phat­i­cally the duty of the ju­di­cial depart­ment to say what the law is.” The untested new Con­sti­tu­tion pro­vided that the Supreme Court pos­sessed the “ju­di­cial Power of the United States,” but it did not de­fine what that power en­tailed.

“With one judg­ment ... Mar­shall would chisel ju­di­cial re­view into the Amer­i­can sys­tem,” Cliff Sloan and David McKean ex­plain in their book, “The Great De­ci­sion.” The rul­ing, “as­sert­ing clearly and un­equiv­o­cally that the Supreme Court did in­deed pos­sess the power to strike down an Act of Congress as un­con­sti­tu­tional ... laid the foun­da­tion for the Amer­i­can rule of law.”

This is not a con­tro­ver­sial po­si­tion, at least in main­stream le­gal thought. On oc­ca­sion, Supreme Court nom­i­nees, in­clud­ing An­tonin Scalia and Neil Gor­such, de­clined to state their agree­ment with Mar­bury. But this coy­ness is not be­cause they dif­fer with the rul­ing; rather, it is be­cause they fear stepping onto the slip­pery slope of as­sess­ing past cases.

More com­monly, Mar­bury is the un­con­tested sub­ject of lav­ish ju­di­cial praise. Chief Jus­tice John Roberts en­dorsed it dur­ing his con­fir­ma­tion hear­ings, and he ex­panded on that view in a 2006 C-SPAN in­ter­view. Mar­shall’s de­ci­sion meant “we have the courts to tell what (the Con­sti­tu­tion) means and what’s bind­ing on other branches,” Roberts said, “and that im­por­tant in­sight into how the Con­sti­tu­tion works has been, I think, the se­cret to its suc­cess.”

But if you think, as Whi­taker seems to, that Roberts is too much of a squish (”he’s not a good per­son to point to when it comes to ac­tu­ally just call­ing balls and strikes in prac­tice,” Whi­taker said of Roberts in the 2014 in­ter­view), con­sider Roberts’s pre­de­ces­sor as chief jus­tice, Wil­liam Rehn­quist. In his book on the Con­sti­tu­tion, Rehn­quist de­scribed Mar­bury as “the linch­pin of our con­sti­tu­tional law.”

Or con­sider Jus­tice

Brett Ka­vanaugh’s com­ments dur­ing his con­fir­ma­tion hear­ings, de­scrib­ing Mar­bury as among the “four great­est mo­ments in Supreme Court his­tory.” Ka­vanaugh of­fered a more extended de­fense of Mar­bury in a 2014 Notre Dame Law Re­view ar­ti­cle. “It’s my sub­mis­sion,” Ka­vanaugh wrote, “that Mar­bury v. Madi­son con­tin­ues to mark the proper ap­proach for con­sti­tu­tional in­ter­pre­ta­tion.”

Yet we seem to have, as the na­tion’s chief law en­force­ment of­fi­cer, a man who begs to dif­fer. Is this still his po­si­tion? If so, how does that view — that the court in Mar­bury was too as­sertive in ex­er­cis­ing its power — square with Whi­taker’s si­mul­ta­ne­ous beef that the court was in­ad­e­quately as­sertive in striking down laws dur­ing the later New Deal era and when deal­ing with the Af­ford­able Care Act?

That’s not the only trou­bling ques­tion about Whi­taker. Dur­ing a 2014 Se­nate de­bate spon­sored by a con­ser­va­tive Chris­tian or­ga­ni­za­tion, he said that in help­ing con­firm judges, “I’d like to see things like their world­view, what in­forms them. Are they peo­ple of faith? Do they have a bib­li­cal view of jus­tice? — which I think is very im­por­tant.”

At that point, the mod­er­a­tor in­ter­jected: “Levit­i­cal or New Tes­ta­ment?”

“New Tes­ta­ment,” Whi­taker af­firmed. “And what I know is as long as they have that world­view, that they’ll be a good judge.

And if they have a sec­u­lar world­view, then I’m go­ing to be very con­cerned about how they judge.”

Mar­bury was wrong. Re­li­gious tests for judges. If you thought the big worry about Whi­taker was how he would han­dle spe­cial coun­sel Robert Mueller, that might be just the be­gin­ning.


Matt Whi­taker, right, now the act­ing U.S. At­tor­ney Gen­eral, par­tic­i­pates in a round ta­ble event with the Joint In­ter­a­gency Task Force-South for­eign li­ai­son of­fi­cers Aug. 29 at the Depart­ment of Jus­tice Kennedy build­ing in Wash­ing­ton, D.C.

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