Is Whitaker a Heretic or Just a Hack?

by Michael C. Dorf

My latest Verdict column--which first appeared on Wednesday--asks whether the framers goofed by failing to spell out in the Constitution exactly what the limits are on the ability of Congress to authorize the president to designate as an "acting" principal officer someone who has not been confirmed by the Senate. My answer: kind of, but one shouldn't get too mad at the framers for failing to anticipate all contingencies; a greater share of the responsibility rests with Congress for acquiescing in what looks like circumvention of the spirit, if not necessarily the letter, of the Appointments Clause; still more responsibility lies with Trump, who does not feel constrained by norms, no matter how longstanding or sensible.

The column focuses on the procedural defects in the designation of Matt Whitaker as Acting AG, but of course, one can also point to his substantive shortcomings. Whitaker's role in advising and promoting the Trump-University-esque World Patent Marketing casts doubt on his ethics. His 2014 statement, when campaigning unsuccessfully for the Republican nomination for a Senate seat, that he would have trouble with judicial nominees who lack a "Biblical view" of justice, shows either ignorance of or indifference to the Constitution's prohibition on religious tests for office. Here I want to focus on Whitaker's identification of Marbury v. Madison as a problematic precedent. I will offer a tepid defense of the position but no defense of Whitaker.

To eliminate the suspense, I'll answer the question that titles this blog post: Whitaker is a hack, i.e., not a person with serious views about important legal questions but rather someone who states and may actually believe whatever internally inconsistent views will appeal to his fellow right-wingers. In his 2014 interview, he gave one far-right answer after another, mostly on policy matters, but he also said this:

Unelected judges are deciding many of the issues of the day. There are so many (bad rulings). 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.

As Andrew Coan and Toni Massaro observed in USA Today, these views are mutually contradictory:

Whitaker’s skepticism of Marbury implies that he believes other branches are better at constitutional interpretation than the Supreme Court. But his rejection of the New Deal cases is actually a call for more aggressive judicial review. This not only makes Whitaker’s position deeply incoherent; it demonstrates his own ineptitude at constitutional analysis, further reinforcing the need for judicial oversight of the executive branch on his watch.

Whitaker's seamless segue from criticizing Marbury for giving the Supreme Court too much power to his critique of the Supreme Court's New Deal cases for exercising too little power shows that, as Coan and Massaro conclude, Whitaker is not exactly a constitutional scholar. But is it possible to imagine a serious person who holds the views Whitaker espoused? Let's call this imaginary person Shmitaker. Shmitaker is a heretic, not a hack.

Suppose that a well-informed scholar or journalist were interviewing Shmitaker, who said roughly what real-world Whitaker said. We might then get the following exchange:

Interviewer: Whoa. Slow down there Mr. Shmitaker. How can you criticize the Court in Marbury for claiming the right to invalidate federal statutes but then in the next breath criticize the Court for not invalidating the federal statutes enacted during the New Deal? 

Shmitaker: You asked me: "What’s the role of the courts and what is or what are some of the worst decisions in the Supreme Court’s history?" I identified Marbury as one of the worst decisions, but I didn't actually say that the Constitution doesn't or shouldn't recognize judicial review. I objected to the view of Marbury that treats the Court as final. As Larry Kramer argued in The People Themselves, when Marshall said in Marbury that the Court has the power to "say what the law is," he was not asserting an exclusive or even supreme power. He was only saying that the Court, in its domain, gets to construe the Constitution, just like the other branches do. In his first Inaugural, Lincoln took this view. So in pointing to Marbury I was really just using it as a shorthand for the idea of judicial supremacy or judicial exclusivity. 

Shmitaker (continuing): Okay, you say, but what about my critique of the New Deal cases? Your question asked me what the worst decisions were. In saying I thought Marbury was one of them, I meant to call into question strong-form judicial review. But then, in thinking about other bad decisions, I assumed you meant other bad decisions, given Marbury. And my point then is that if you're going to have strong-form judicial review, then have it for the right cases -- those in which the federal government violates the Constitution by legislating in areas that are reserved to the states. Yet the Court in the New Deal cases upheld such legislation.

I should be clear that I don't find the foregoing line of argument persuasive, nor do I think that real-world Whitaker had anything so sophisticated in mind as what I've attributed to hypothetical Shmitaker. But at least Shmitaker recognizes the internal tension in his position and tries to reconcile it.

Let's go a little further, however, and imagine someone who wanted to be Acting Attorney General or even the actual appointed Attorney General but was a strong critic of judicial review. Let's suppose that such a nominee had written law review articles and/or books arguing that an ideal constitutional design would leave the legislature supreme in matters of constitutional interpretation. Our nominee--I'll call him Shmeremy Shmaldron--does not argue that the US Constitution, best understood, lacks judicial review. That position, although it has been espoused from time to time, is very difficult to square with Article III's extension of federal court jurisdiction to all cases arising under the Constitution. No, Shmaldron's argument is one of ideal design. He thinks that, given our political divisions, we would be better off in the long run having elected officials rather than judges decide fundamental matters. Should that sort of view be disqualifying for an Attorney General?

I would hope not. To be sure, Shmaldron's view swims very much against the tide. Although not all that long ago, some liberal democracies lacked judicial review, just about all of them now have it. The UK, once the bastion of parliamentary supremacy, now has what is sometimes called "soft" judicial review. The Netherlands still lacks judicial review under its Constitution but is a party to the European Convention on Human Rights and thus subject to decisions of the European Court of Human Rights. So is the UK, and it will continue to be after Brexit. New Zealand still lacks judicial review of legislation, although it has had a Bill of Rights Act since 1990 that assigns to the Attorney General the task of looking out for incompatibility for parliament to correct; in addition, courts construe ambiguous legislation to avoid unconstitutionality. Just about every other constitutional democracy has some form of judicial review.

That convergence could reflect a shared recognition of the importance of judicial review for protecting minority rights and other purposes. But Shmaldron might say that it simply reflects a kind of herd mentality. It would be nearly impossible to design any sort of experiment to test whether judicial review does more good than harm or even to agree on what counts as good and what counts as harm. Thus, for my money, Shmaldron ought to be confirmed as AG, so long as he recognizes that the US has judicial review and he will work within that system. A willingness to question the ultimate normative desirability of even fundamental institutions--like judicial review or, say, the Senate--displays the sort of open-mindedness we should want in our public servants.

But while Shmaldron may be commendably open-minded and Shmitaker may be a highly competent lawyer, alas, Whitaker appears to be neither.