There has been a lot of discussion today as to whether it was lawful for Trump to appoint Matthew Whitaker as Acting Attorney General after Jeff Sessions was fired. I’ve read a lot on that, and I think it probably was lawful, although it seems to be an open question whether Whitaker would need to be confirmed by the Senate to serve as Attorney General.
But all of that probably doesn’t really matter very much. What matters is that Whitaker is not just a right-winger but a very rabid right wing extremist!
He says he thinks most Supreme Court decisions in history are invalid (although he is bound by them under the law). But most incredible to me is that he believes the landmark case of Marbury v. Madison (1803) was wrong decided! nymag.com/…
That article includes the following about Whitaker’s beliefs:
• All federal judges should be “people of faith” who take “a biblical view of justice.”
• The Supreme Court is “supposed to be the inferior branch of our three branches of government,” and has claimed far too much power for itself. Specifically, Whittaker says that Marbury v. Madison — the case that gave the court the power to strike down duly enacted laws — was wrongly decided, as the Supreme Court should not be “ final arbiter of constitutional issues.”
As a U.S. lawyer for more than 30 years, I’m shocked beyond belief to have an Acting Attorney General who holds such views. Marbury v. Madison (1803) is the most important Supreme Court case of all time. It is always the very first case studied in Constitutional Law in law school. See this wikipedia write-up: en.wikipedia.org/…
The decision elevated the Supreme Court (and the other federal courts) to a coequal position with the executive and legislative branches of government. It established the absolutely fundamental principle of judicial review, which means that federal courts can overturn laws and certain executive actions upon a finding that they are unconstitutional.
I just can’t believe that we have an Acting Attorney General who repudiates that!
Incidentally, his statement from the quote above is also wrong, because the President and the Congress have always had lawful ways to declare some law or some action unconstitutional. Kenneth C. Davis, Administrative Law Treatise, one of my favorite set of books. But under long-settled law, when push comes to shove, the Supreme Court has the last word.
Whitaker’s written views make it plain that he is a mad dog. We’re in for nuclear war over the Mueller investigation. I’m horrified. But I suspect that Mueller has out-plotted them.