Sen. Sheldon Whitehouse said Wednesday that he rejects the idea that a nominee to the Supreme Court should have a “judicial philosophy,” despite previously questioning past nominees to explain their own.
During the third day of the Senate Judiciary Committee’s confirmation hearings for Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, the Rhode Island Democrat argued the term “judicial philosophy” can be a “screen for a predisposition.”
“It kinda bothers me the expectation that a nominee to the Supreme Court should have a judicial philosophy,” Whitehouse said. “I don’t think you have to have a judicial philosophy. I think you have to have integrity, a judicial temperament. But a philosophy? Where does that come from?”
GRAHAM AND KETANJI BROWN JACKSON SPAR OVER SENTENCING PRACTICES
Whitehouse argued that includes the concept of “originalism” in interpreting the Constitution.
I’ve been through lots of these hearings and I’ve never heard Republicans worry so much about a nominee’s “judicial philosophy.” Here’s what’s going on. pic.twitter.com/FCiMKVh3Dp
— Sheldon Whitehouse (@SenWhitehouse) March 23, 2022
“One of the problems with ‘judicial philosophy’ is occasional adherence, selective adherence, which in my mind makes it less of a judicial philosophy and more of a doctrine of convenience to be trotted out when it helps the people you want to help, and originalism strikes me as that kind of doctrine,” he said.
But Whitehouse has asked previous nominees to the high court to explain their judicial philosophies. In 2017, he asked Justice Neil Gorsuch, during his confirmation hearing, to explain how his “judicial philosophy” differed from former nominee Merrick Garland. Gorsuch said he didn’t want to characterize Garland’s views.
President Barack Obama nominated Garland to the high court in 2016, but the Senate did not consider that nomination, and Garland is now the attorney general.
In 2009, Whitehouse told Justice Sonia Sotomayor at her confirmation hearing: “It is fair to inquire into a nominee’s judicial philosophy, and we will here have a serious and fair inquiry.”
“But the [pretense] that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history,” Whitehouse said at the time.
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Earlier this week, Jackson said her judicial philosophy is her methodology, which she outlined to include neutrality, interpreting the law to the facts of the case, and issuing rulings consistent with her “limitations” as a judge.
