All GOP Senators Rebuke 5 Democrats for Assault on Judicial Independence

September 3, 2019 Updated: September 3, 2019

WASHINGTON—Arguing that “judicial independence is under assault,” all 53 Republican U.S. senators have signed a letter to the Supreme Court criticizing five Democratic senators for, in their view, “openly” threatening the court with “political retribution” if it fails to embrace a restrictive view of Second Amendment rights in an upcoming challenge to a New York City gun law.

Led by Sen. Sheldon Whitehouse (D-R.I.), the five Democratic senators filed a sharply worded friend-of-the-court brief Aug. 12 in New York State Rifle and Pistol Association v. City of New York, the court’s first gun-rights case in nine years, which is expected to be heard during the approaching fall term.

Former President Barack Obama, a Democrat, often attacked the Supreme Court. During his 2010 State of the Union address, he lectured the justices sitting in the audience in the Capitol about how, in his view, they decided the famous Citizens United campaign finance case wrongly. He also used his bully pulpit to warn the justices not to overturn the Obamacare law, his signature legislative accomplishment.

In the case at hand, gun owners are suing the Big Apple over a local law that, among other things, prevents lawful gun permit holders from transporting their unloaded, locked-up weapons outside the city limits. The Supreme Court denied a motion April 29 to declare the controversy moot after the city amended the law in question, so the court case continues.

Whitehouse was joined in the brief by Sens. Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York, who, on Aug. 28, dropped out of the race for her party’s 2020 presidential nomination.

“The Supreme Court is not well,” the Whitehouse brief states. “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.”

Republicans in the Senate have responded by sending a strongly worded letter to the Clerk of the Supreme Court, Scott S. Harris, protesting the Democrats’ epistolary tactic.

Without taking a position on the merits of the New York gun case itself, the Republicans said the fact that their counterparts filed a brief—a commonplace thing—isn’t the problem, “[but] our colleagues did more than raise legal arguments in favor of mootness. They openly threatened this Court with political retribution if it failed to dismiss the petition as moot.”

The implication from the paragraph about healing and reducing the influence of politics “is plain as day: Dismiss this case, or we’ll pack the Court,” the GOP senators wrote.

“[Judicial] independence is under assault. Democrats in Congress, and on the presidential campaign trail, have peddled plans to pack this Court with more justices in order to further their radical legislative agenda. It’s one thing for politicians to peddle these ideas in tweets or on the stump. But the Democrats’ amicus brief demonstrates that their court-packing plans are more than mere pandering. They are a direct, immediate threat to the independence of the judiciary and the rights of all Americans.”

The letter continues: “We are deeply concerned by” the Democrats’ brief “and the ideas it promotes … [but] judicial independence is not negotiable.

“We therefore ask that the Justices … rule in this case only as the law dictates, without regard to the identity of the parties or the politics of the moment. They must not be cowed by the threats of opportunistic politicians.”

Whitehouse’s brief, in which he was identified as “counsel of record,” generated controversy, William A. Jacobson, clinical professor of law of Cornell Law School, wrote on the Legal Insurrection website.

In addition, the nonprofit government watchdog Judicial Watch filed a complaint with the Unauthorized Practice of Law Committee of Rhode Island’s Supreme Court, since the senator signed the brief while on “inactive” bar status in that state.

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