Sen. Sheldon Whitehouse attacks Judge Neomi Rao, trying to dirty her up for potential SCOTUS nomination

Sen. Sheldon Whitehouse attacks Judge Neomi Rao, trying to dirty her up for potential SCOTUS nomination

A three-judge panel of the D.C. Circuit Court of Appeals has ordered Judge Emmet Sullivan to respond to Michael Flynn’s Emergency Petition for a Mandate ordering the district court to dismiss the prosecution against Flynn as the government wants, and removing Sullivan from the case.

Sen. Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee, reacted by singling out and attacking only one of the three judges on the panel, Neomo Rao. Whitehouse tweeted a Politico article about the panel order with this commentary:

Where you see Neomi Rao, you can expect a lot of Trumpy dirt to follow. She’s a cartoon of a fake judge. Watch this space.

Why single out and attack Rao?

And why the threat to “watch this space,” as if Whitehouse is planning more attacks on Rao?

Whitehouse Personality

Part of it is Whitehouse’s personality. I’ve followed his career for over a decade, a particular interest I have since he’s from Rhode Island, where I’ve lived almost continuously for over 25 years.

Whitehouse is a humorless scold, with a strong self-righteous streak. He was born with a silver spoon in his mouth, a product of high society, as this favorable Rhode Island Monthly profile in October 2017 described:

Whitehouse is the great-great-grandson of the West Coast railroad baron Charles Crocker, and with an estimated net worth of more than $6 million, he is reportedly the Ocean State’s wealthiest politician…. Whitehouse came from a socially and politically connected family — his father dated Jacqueline Bouvier before she married JFK and was known to enjoy fox hunting — and when he returned stateside, he followed a classic blue-blood educational track: prep school at St. Paul’s in New Hampshire; college at Yale; law school at the University of Virginia.

Throughout this political career Whitehouse’s approach has been to belittle and demonize people who oppose him, with the insinuation that they are morally inferior to him.

I’ve covered many such incidents with Whitehouse over the past decade, including how in his argument on the floor of the Senate in December 2009, Whitehouse compared the Republican Senators opposing Obamacare to Nazis and lynchers.

Whitehouse compared opponents of the Democratic health care bill to those who hung black from trees in the South and the Nazis who ran through the streets on Kristilnacht:

History cautions us of the excesses to which these malignant, vindictive passions can ultimately lead. Tumbrels have rolled through taunting crowds. Broken glass has sparkled in darkened streets. Strange fruit has hung from Southern trees. Even this great institution of government that we share has cowered before a tail-gunner having secret lists. Those malignant movements rightly earned what Lord Acton called “the undying penalty which history has the power to inflict upon wrong.”

Dana Milbank of the Washington Post noted at the time that even in the toxic political environment surrounding Obamacare, Whitehouse’s speech was part of An ugly finale for health-care reform:

One of [Democrats’] own members, Sen. Sheldon Whitehouse (R.I.) had just delivered an overwrought jeremiad comparing the Republicans to Nazis on Kristallnacht, lynch mobs of the South, and bloodthirsty crowds of the French Revolution.

“Too many colleagues are embarked on a desperate, no-holds-barred mission of propaganda, obstruction and fear,” he said. “History cautions us of the excesses to which these malignant, vindictive passions can ultimately lead. Tumbrils have rolled through taunting crowds. Broken glass has sparkled in darkened streets. Strange fruit has hung from southern trees.” Assuming the role of Old Testament prophet, Whitehouse promised a “day of judgment” and a “day of reckoning” for Republicans.

The day’s ugly words were a fitting finale for the whole sorry health-care debate of 2009.

Kavanaugh Boofing

Fast forward to the Brett Kavanaugh hearings, Whitehouse was among the most vicious attackers, and that’s saying a lot. I wrote at the time, Worst performance of Kavanaugh Hearings Day 2 – Sheldon Whitehouse:

Whitehouse never has been a happy warrior.

He demeans and belittles people who disagree with his policy provisions….

Whitehouse brought that attitude to the questioning, working in repeated references to “dark money” supporting Kavanaugh, and trying to make the Federalist Society into some sort of nefarious operation undermining the country. That’s how Whitehouse rolls, his opponents are portrayed as devious and conspiratorial….

Whitehouse rolled out lists of donors to the Federalist Society, as if he had just unveiled some anti-American conspiracy.

Whitehouse’s most (laughingly) notorious attack on Kavanaugh was over high school yearbook entries, Senator Sheldon Whitehouse grilled Brett Kavanaugh about a high school yearbook fart joke. Seriously.

Here’s are some key quotes:

Kavanaugh’s yearbook page includes the phrase, “Judge, have you boofed yet?” This apparently references his friend Mark Judge, who is alleged to have participated in Kavanaugh’s sexual assault of Christine Blasey Ford in 1982. Judge’s yearbook page has the phrase, “Bart, have you boofed yet?” Judge went on to write a memoir in 1997 about his alcoholism that included a character called “Bart O’Kavanaugh,” though Kavanaugh did not confirm if it was based on him.

“Boofed” is also sometimes used as a vulgar slang term, usually referring to some mix of anal sex and drugs. The New Yorker said it “refers to the practice of anally ingesting alcohol or drugs.”

But Kavanaugh said it was simply a teenage joke between him and Judge about “flatulence.”

“If we want to talk about flatulence at age 16 on a yearbook page, I’m game,” he told Sen. Sheldon Whitehouse when questioned about it.

To say that Whitehouse lacks self-awareness is an understatement. He just kept going:

Whitehouse also aided and abetted the media smear campaign, when he referred a Kavanaugh false accuser to reporter at same time notified FBI and Judiciary Committee.

But wait, there’s more.

Threats to Supreme Court

Whitehouse’s most recent bullying stunt was to threaten the U.S. Supreme Court in an “amicus brief” that was critized even by liberal anti-Trump legal professionals as inappropriate, Dem Senators to Supreme Court: Rule our way on 2nd Amendment case, or face possible restructuring:

A group of Democratic Senators (Whitehouse, Gillibrand, Hirono, Blumenthal, Durbin) just filed an extraordinarily vitriolic Amicus Brief in support of the Respondent, N.Y. City. The Brief was signed by Sheldon Whitehouse (D-RI) for the group, listing himself as Counsel of Record….

It was a double-barrel attack — impugning the motives of those holding different views of the 2nd Amendment and threatening to damage the Court’s legitimacy:

Yet this is precisely—and explicitly—what petitioners ask the Court to do in this case, in the wake of a multimillion-dollar advertising campaign to shape this Court’s composition, no less, and an industrial-strength influence campaign aimed at this Court. Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gunsafety regulations. Particularly in an environment where a growing majority of Americans believes this Court is “motivated mainly by politics,” rather than by adherence to the law,2 the Court should resist petitioners’ invitation….

To stem the growing public belief that its decisions are “motivated mainly by politics,” the Court should decline invitations like this to engage in “projects.” See Quinnipiac Poll, supra note 2 (showing fifty-five percent of Americans believe the Court is “motivated mainly by politics”)….

The influence effort directed at this Court has been industrialized. In this particular “project” to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici. As usual, the true identities and funding sources of most of these amici are impossible to ascertain. Amicus groups claim status as “socialwelfare” organizations to keep their donor lists private,7 and this Court’s Rule 37.6 is ineffective at adding any meaningful transparency.8 Were there such transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support
rallying to a cause.

The closing paragraph was at best a thinly-veiled threat (emphasis added):

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

This was not so much a legal argument, but a shot across the bow of the Court and Chief Justice Roberts in particular.

Nice Court you have there, Chief, shame if something happened to it.

Unfortunately, Whitehouse’s attempt to intimidate worked, and the Supreme Court found the case to be moot, with Roberts and Kavanaugh joining the four liberal Justices in the per curium opinion:

The dissent [by Alito, joined by Thomas and Gorsuch] took note of the threats by the Democrat Senators:

Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal. Brief for Sen. Sheldon Whitehouse et al. as Amici Curiae 2–3, 18 (internal quotation marks omitted).

One of the main downsides of this outcome is that Sheldon Whitehouse will feel emboldened to threaten the judiciary in the future. Whether his threats had an actual impact is hard to know, but clearly that was his intent. Whitehouse is a classic bully, he senses weakness, and Roberts is the weak link.

And sure enough, Whitehouse is back, this time attacking Rao.

Prepping Future SCOTUS Nomination Battlefield

But it’s not just Whitehouse’s personality, it’s tactical. Rao is a potential nominee to the Supreme Court, particularly now that she has appellate court experience. That’s why Whitehouse and other Democrats fought a vicious battle when Trump nominated her to fill the seat vacated when Kavanaugh was confirmed to the Supreme Court.

Rao has impressive conservative legal credentials, as her Federalist Society biography at the time of her nomination showed:

Neomi Rao is the Administrator of the Office of Information and Regulatory Affairs, which is an office in OMB focused on regulatory review. Administrator Rao is a former professor of structural constitutional law, administrative law, and legislation and statutory interpretation at the Antonin Scalia Law School at George Mason University. Administrator Rao founded the Law School’s Center for the Study of the Administrative State and focused her scholarship on the political and constitutional accountability of administrative agencies and the role of Congress. Additionally, Administrator Rao’s comparative analysis of the use of dignity in constitutional law has been widely cited in the United States and abroad. She also served as a Member of the Administrative Conference of the United States and on the Governing Council of the ABA Section of Administrative Law and Regulatory Practice.

Prior to joining the Law School, Administrator Rao served in all three branches of government. She served as Associate Counsel and Special Assistant to President George W. Bush. Administrator Rao also served as counsel to the U.S. Senate Committee on the Judiciary, where she was responsible for judicial nominations and constitutional law issues. In between government service, Administrator Rao practiced in the London office of Clifford Chance LLP, specializing in international law and commercial arbitration. After receiving a B.A. from Yale University and Juris Doctorate from the University of Chicago, Administrator Rao clerked for Judge J. Harvie Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit and for Justice Clarence Thomas on the U.S. Supreme Court.

It’s that conservative, and particularly Federalist Society, background that seems to infuriate Whitehouse above and beyond his normal anti-Trump fervor. And the fact that Rao is talked about as a potential future Supreme Court nominee.

That explains why Democrats launched a campaign of misinformation and falsehoods to try to stop Rao’s nomination, Dems are trying to Bork and Kavanaugh appeals court nominee Neomi Rao.

As Politico noted at the time, the attacks on Rao were to damage her as a potential Supreme Court nominee, Dems hope to draw blood from potential Trump SCOTUS pick:

When the conservative lawyer Neomi Rao appears before the Senate Judiciary Committee this week, she’ll be interviewing for a job on the country’s second most powerful court.

But both her allies and enemies will be watching with something even bigger in mind: her viability as a future Supreme Court nominee.

Growing buzz on the right about Rao, a legal scholar and Trump administration regulatory official, has raised the stakes of her Tuesday confirmation hearing to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals.

Republicans expect Democrats to contest Rao’s nomination with particular energy given what White House allies call the prospect that the 45-year-old former law professor could be on deck for a Supreme Court seat. A recent Wall Street Journal editorial said the left is intent on publicly “destroying” her.

Whitehouse was front and center in the mob attack, and as usual Whitehouse alleged a conspiracy:

“Neomi Rao is another judicial nominee from the Donald Trump/Federalist Society special interest machine.  Her ideology was birthed in the petri dish of the Republican corporate donor class that believes it is above government regulation and disdains accountability to juries and the judicial process.  She has led a campaign as Trump’s regulatory czar to deliver huge benefits to corporations at the expense of public protections that safeguard families, workers, and our environment.  The Roberts Court has already demonstrated its fealty to the donor class with its string of 73 partisan decisions in their favor.  I hope Ms. Rao does not fit this pattern; her record to date suggests she will.”

Whitehouse has threatened that people need to “watch this space.”

That Whitehouse space will be filled with the conspiracy theories, falsehoods, distortions, and threats. You can bet on it.

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