When Vice President Joe Biden visited Providence Feb. 23 to appear at a fundraiser for U.S. Sen. Sheldon Whitehouse, he offered surprising insight into the Obama administration's deliberations over how to fill the Supreme Court vacancy created by the retirement of Justice John Paul Stevens in 2010.
Speaking at the Biltmore Hotel downtown, Biden divulged that the opening very nearly went to Rhode Island's own Whitehouse, whom the vice president "approached... to be a nominee to the U.S. Supreme Court," according to the Providence Journal. Whitehouse allegedly declined the offer, explaining that he had a "commitment to the people of Rhode Island."
By most accounts, Obama's eventual nominee Elena Kagan has served admirably, ruling with the court's liberal minority on issues such as whether states may distribute funds to private religious schools or offer matching funds to publicly financed candidates running against big-spending opponents. She has also sided with the majority on two important free speech cases, one striking down a state ban on the sale of violent video games to minors, the other permitting organizations such as the Westboro Baptist Church to picket soldiers' funerals.
But Biden's juicy admission raises an interesting counterfactual, and, in light of it, I cannot help but wonder - would Little Rhody's junior senator have been a better choice?
That Whitehouse would have been eminently qualified for the nomination is beyond dispute. As a member of the U.S. Senate, he has spent nearly six years crafting complex legislation, which puts him in an excellent position to interpret the law of the land as a justice. His experience as a member of the Senate Judiciary Committee has given him even greater familiarity with the judicial branch and the contemporary legal issues that it faces. Before his election to the Senate, Whitehouse served for four years as Rhode Island attorney general, and before that as U.S. Attorney for the District of Rhode Island.
Whitehouse's legislative experience would have been a strong asset. As an elected official, legislator and non-academic, he would have brought important perspectives to a court that is all too homogeneous in its current composition. The last justice to have been elected to public office was Sandra Day O'Connor, a former majority leader of the Arizona State Senate who retired from the court in 2006. Since then, the court has suffered for the lack of background diversity among its members - of the nine justices, all but three are former academics, and only Kagan had not served as a federal judge.
The damaging consequences of the court's dearth of former political officeholders were on fullest display in the regrettable 2010 Citizens United decision. Writing for the majority, Justice Kennedy wrongly asserted that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." He justified this nonsense by arguing that the "absence of prearrangement and coordination of an [independent] expenditure with the candidate" undermines both the value of that expenditure to the candidate and its efficacy as quid pro quo.
This logic demonstrates a serious misunderstanding of the manner in which money corrupts politics. First, candidates often take political actions or positions in reasonable anticipation of financial assistance from interested third-party groups. Second, even when corporate donations do not alter the preexisting beliefs of their recipients, they distort the political agenda by ensuring that their interests are given disproportionate attention and consideration relative to those not backed by millions of dollars in electioneering.
This is a line of reasoning that a non-politician might have difficulty understanding, but it is terribly obvious to an experienced officeholder. Had Whitehouse been on the court when Citizens United was deliberated, he would have been in a powerful position to articulate the danger of limitless corporate campaign finance capabilities.
Of course, Whitehouse's background as a senator would have its detriments. As a supporter of the Affordable Care Act, he could have made a strong case for its constitutionality, but he would have faced pressure to recuse himself from the case, given his vote for the law's passage. His ascension to the court would have also created a Senate vacancy that would have been filled by former Gov. Don Carcieri '65, a conservative Republican. Elena Kagan, meanwhile, has turned out to be a commendable justice and a formidable voice for the left. In those areas in which her voting record has been less than exemplary - she has voted twice with the majority to gut Miranda rights - there is little reason to think that Whitehouse, a former prosecutor, would have necessarily voted differently.
Ultimately, Obama's appointment of Kagan was probably wise. She is performing well in her current role, and Whitehouse is likewise. Nonetheless, as a progressive Rhode Island resident, Sheldon Whitehouse's swearing in as the 112th justice of the U.S. Supreme Court would have been a proud and satisfying moment for me. My consolation is that at least we get to keep him here in Rhode Island - for now. Who knows what will happen next time a vacancy arises?
Bradley Silverman '13 is a former intern for Senator Whitehouse. He hosts Taking Liberties, a weekly podcast on law and politics available on iTunes or at news.wbru.com. He can be contacted at bradley_silverman@brown.edu.
