Author, Lecturer, Ethicist

Adams & Jefferson Must Be Turning Over in Their Graves

Question: What two things do Supreme Court Justices Louis D. Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan have in common?

 Jefferson and Adams

Jefferson and Adams

Answer: First, they all are (or were) Jewish; and second, were the new “acting attorney general” Matthew Whitaker’s worldview be the historic law of the land, none of them would have ever been nominated - let alone seated - on the United States Supreme Court, Whitaker’s reasoning? Look no further than point number one: they are (or were) Jewish. Back in 2014, when Whitaker was running for a United States Senate seat from Iowa (he came in 4th in the Republican primary, garnering a paltry 7.53% of the vote), he stated in a question-and-answer session that he would not support "secular" judges and that judges should "have a biblical view of justice." Asked if he meant Levitical or New Testament justice, he replied "I’m a New Testament [sic].” Many understood this to mean that Whitaker would disqualify non-Christian judges. I can just hear Adams and Jefferson screaming out: “Idiot! This is utterly unconstitutional . . . read Article VI, Clause III, which reads, ‘The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Then too, Whitaker has on more than one occasion stated that the courts are “supposed to be the inferior branch.” Whitaker has been been critical of the Supreme Court’s 1803 decision in Marbury v. Madison). This decision, arguably the most important in American history, allows judicial review of the constitutionality of the acts of the other branches of government. Whitaker, of course, is woefully, stupidly wrong. Commenting on Whitaker’s opinion of Marbury v. Madison, Laurence Tribe, the Carl M. Loeb University Professor at Harvard Law (and one of the preeminent Constitutional scholars of the past half century) said, "the overall picture he presents would have virtually no scholarly support," and that they would be "destabilizing' to society if he used the power of the attorney general to advance them."

 Matthew Whitaker

Matthew Whitaker

Those who have been paying attention to the ever-widening story of Matthew Whitaker, now know about his work on the board of an invention assistance company, World Patent Marketing, that the Federal Trade Commission has labeled a “scam.”  Reporting on the scam, a team of researchers for the Washington Post explained: “Whatever the concept, no matter how banal or improbable, investigators found, the salesperson would pronounce the idea fantastic and encourage the customer to pay for a package to market and patent the idea, documents show. Many people ended up in debt or lost their life savings, according to the FTC.” Ironically, Whitaker’s brief bio on the World Patent Marketing website described the former U.S. Attorney for the District of Southern Iowa as having “ . . . obtained invaluable insight and experience regarding the enforcement of federal crimes including . . . corporate fraud, terrorism financing and other scams.”

If all this - the churlish, puerile understanding of both the U.S. Constitution and makeup of the federal government as well as the highly partisan (e.g. pro-Trump) political weltanschauung were not enough to disqualify Matthew Whitaker from serving as acting attorney general, there is the question of its legality. The first question, of course, is its timing: Doing this the day after the midterm elections pretty much erased any doubt that this was delayed for political reasons and then done as quickly as possible. Sessions reportedly wanted to stay on until Friday, but White House Chief of Staff John F. Kelly told him no. Despite saying that he did not personally know Whitaker (there exists at least one video to the contrary) it’s not at all difficult to paint Whitaker as a stooge for Trump in the Justice Department — or at least someone Trump had to know sided with him on substantial, Russia-related matters. Thanks to his brief career as a pundit for CNN, Whitaker has taken Trump’s side on many aspects of the Russia investigation.

Which brings us to the next problem: whether this appointment is even legal. George Conway (husband of White House adviser Kellyanne Conway) and former solicitor general Neal Katyal argued Thursday in the New York Times that it’s not. They argue, compellingly, that the Constitution explicitly requires principal officers of the U.S. government — that is, those who have no superior except the president — to be confirmed:

In times of crisis, interim appointments do need to be made. Cabinet officials die, and wars and other tragic events occur. It is very difficult to see how the current situation comports with those situations. And even if it did, there are officials readily at hand, including the deputy attorney general and the solicitor general, who were nominated by Mr. Trump and confirmed by the Senate. Either could step in as acting a.g., both constitutionally and statutorily.

A principal officer must be confirmed by the Senate. And that has a very significant consequence today . . .

With this past week’s midterm election results mostly tabulated, it is clear that the vote against Donald Trump was overwhelming. And even though the Senate will continue to be in the hands of the president’s party, one must believe that there’s a lot of thinking, worrying and reassessing going on. From where I sit, ‘45, whether from the point of intent or just plain ego, has pushed that most dangerous of buttons . . . the one labeled BEWARE: CONSTITUTIONAL CRISIS! One wonders if he or his aides can hear the sound of Adams and Jefferson turning over in their graves.

I for one hope the sound continues growing in intensity . . .

Copyright©2018 Kurt F. Stone