Washington, DC – Today, during the Supreme Court nomination hearing of Judge Ketanji Brown Jackson, Senator Sheldon Whitehouse (D-RI) took on Republicans’ repeated concerns with Supreme Court nominees’ “judicial philosophy.” As Whitehouse pointed out, Republicans and their judicial nominees have adopted so-called judicial philosophies – like the doctrine of “originalism” – to advance the rights of corporations and powerful special interests at the expense of the American people. And then they flagrantly violate “originalism” by creating a very un-original role for corporate power in American politics. In contrast, Judge Jackson has made clear: “my philosophy is my methodology,” which is to “consistently appl[y]” the “same level of analytical rigor” to a case “no matter who or what is involved in the legal action.”
At last check, Republicans had mentioned the phrase “judicial philosophy” 48 times over the course of Judge Jackson’s nomination hearings this week thus far.
Video of Whitehouse’s remarks is available here; a transcript is below.
There are two things that have come up during the course of the hearing, Mr. Chairman, that I’d like to take my time to have a chance to respond to.
The first has been questions – you know, I’ve been through a bunch of these now, and I don’t think I’ve ever heard it come up so much – questions about the nominee’s judicial philosophy. I didn’t know you needed to have one. I actually thought that when you’re dealing with the Constitution, your oath of office, the constitutional precedents, and the Constitution itself gave you your guide path. And when you’re construing statutes, the law, the conventions of the language, and your logic gave you that path.
So the fact that Judge Jackson has said, “I don’t have a judicial philosophy, I’ve got a judicial methodology,” doesn’t bother me a bit. In fact, it kind of bothers me that the expectation is that a nominee to the Supreme Court should have a judicial philosophy, because a judicial philosophy can be a screen for a predisposition that judges frankly should not have — but that folks and powers and interests influential in the process may very well want them to have.
When I think about judicial philosophy, one of them that has come up a lot has been originalism, and one of the problems with that judicial philosophy is occasional adherence, selective adherence — which in my mind makes it less of a judicial philosophy and more a doctrine of convenience to be trotted out when it helps the people that you want to help. Originalism strikes me as being that kind of a doctrine.
The place where I think we have the biggest gap between philosophy and practice in all of this has been with respect to what I’ve witnessed with corporate power in our democracy in the time that I’ve been in the Senate.
If you go back to the founding days, there was no expectation that corporations would have any role in American democracy – nil. It doesn’t turn up in the constitutional debates. It doesn’t turn up in the arguments leading up to the approval of the Constitution. It’s only when corporations became big and powerful, many decades later, that they began to intrude in our politics – and they corrupted our politics in a terrible way. History shows it.
That led to the movement by the “muckrakers,” whose best leader was Teddy Roosevelt, to knock down the grasping political power of corporations and rein them in. We had some real victories at that time.
But ambitions of those of great wealth and power do not go away, and they have continually crept forward. It’s an age-old story.
Right now, we have corporate power controlling this Congress in a way that is really remarkable. We have a complete inability to address the climate havoc that fossil fuel emissions are creating, because half of Congress has been disarmed and disabled by the political influence of the fossil fuel industry. We can’t even have a reasonable and sensible discussion on it, because the power of that industry is so great.
We’ve seen that manifested first with Republican justices on the Supreme Court letting corporations into politics. That was an interesting invention. Then once they were in, they let them spend money in politics. Then once they let them spend money in politics, they let them spend unlimited money in politics.
Now, we’re looking at a Court whose majority is in the process of building a right for corporations – the biggest and most powerful corporations that we have – to not only get into politics, spend money in politics, and spend unlimited money in politics, but to spend unlimited money in politics anonymously; to hide from the real voters, the “we the people” who we actually are, when they’re intervening in our politics; and to play this game through phony front groups with ridiculous names – “Rhode Islanders for Peace and Puppies and Prosperity.”
Let’s not get too excited about judicial philosophy if it’s nothing more than a screen for a predisposition that will benefit certain players in the arena. Let’s certainly not take judicial philosophy too seriously when it evaporates in the face of the interests that have pushed the philosophy. I think originalism qualifies in that way.
I just wanted to say that. I don’t think you have to have a judicial philosophy. I think you have to have integrity. I think you have to have a judicial temperament. But a philosophy? Where has that come from?
Rich Davidson (202) 228-6291 (press office)
