Senator Sheldon Whitehouse is a bully. Last week the Rhode Island Senator personally attacked a federal appeals court judge, calling her a “cartoon of a fake judge.”
The judge is Neomi Rao, a brilliant young jurist and administrative law expert whom President Trump appointed to the United States Court of Appeals for the D.C. Circuit in March 2019. At the time of her nomination, the American Bar Association Rao rated Rao “well qualified,” the organization’s highest rating.
So what’s Senator Whitehouse’s problem?
Rao is part of a three judge appellate panel (selected at random) that recently ordered U.S. District Judge Emmet Sullivan to explain why he declined to dismiss the case against former National Security Adviser Michael Flynn after prosecutors dropped the case. Together, Judge Rao, Judge Karen Henderson, and Judge Robert Wilkins will determine whether Judge Sullivan must dismiss the prosecution.
But Whitehouse’s inappropriate comments aren’t just about the Flynn case. They are part of an attempt to paint Rao, an obvious Supreme Court contender in coming years, as a political hack. “Where you see Neomi Rao,” Whitehouse tweeted, “you can expect a lot of Trumpy dirt to follow.”
As a federal judge, Rao is constrained from defending herself. But Senator Mike Lee, who sits on the Senate Judiciary Committee with Whitehouse, scolded his colleague for making such intemperate remarks.
“Not cool, Sheldon. Judge Rao is a gifted, hard-working legal scholar and jurist. I know you disagree with her here — and I strongly disagree with you on that point — but is it ever appropriate to call a sitting jurist ‘a cartoon of a fake judge’? I can’t think of a good reason. Ever,” the Utah Republican fired back.
Attorney Sean Marotta went further, implying that Whitehouse’s remarks were not just inappropriate, but discriminatory: “Respected former law professor. Former head of [the Office of Information and Regulatory Affairs]. Former #SCOTUS clerk. I guess attacking accomplished female judges who are the daughters of immigrants is okay when you think they won’t rule how you want them to.”
Will Whitehouse rein it in? Unlikely. The Senator has a history of attempting to undermine the separation of powers and the independence of the federal judiciary.
Last year, he and four Democratic colleagues filed a “friend-of-the-court” amicus brief in a case before the Supreme Court. But friendly, it was not. To the contrary, the brief described the Court as “unwell” and threatened that, if the Court did not dismiss the case, it might be “restructured.” In other words: do as we say, or we will pack the Court with additional justices who will.
Federal judges should, of course, ignore the unhinged rants of politicians. But Senate leadership must make clear to its members that attempts to intimidate federal judges will not be tolerated.