Senator Whitehouse called nominees’ responses “preposterous.” Then he voted for one of them.
This morning, he voted to advance Sheria Clarke’s nomination to the Senate floor.
On March 25, four judicial nominees appeared before the Senate Judiciary Committee and — like many nominees before them — refused to answer questions about the outcome of the 2020 election and the January 6 attack on the U.S. Capitol.
Senator Richard Blumenthal, who has taken the lead in asking these questions during hearings, called the nominees’ responses “Orwellian in their denial of reality.” He told the nominees that their answers were “an insult to this committee, but they also fundamentally show a complete lack of independence and backbone and impartiality, which are the fundamental requirements of a United States district court judge, or a judge on any panel.”
Senator Sheldon Whitehouse immediately piled on, questioning where nominees would draw the line in their quest to prove their loyalty to the president:
Just to finish Senator Blumenthal’s point, I hope you realize how ridiculous the four of you look — spouting these preposterous, canned answers in a forum in which, A, you’re supposed to tell the truth, and B, you’re supposed to demonstrate the judicial capacity to make independent, factual decisions in hard cases. If you can’t even sit here and say that Joe Biden won that election or that the Capitol was attacked? What’s left? What’s left if a hard case comes your way as a judge, and let’s say the Trump administration is bearing down on that. Why would we ever believe that you would give the litigants a fair hearing and a fair decision if the executive branch was leaning in on you, when we can’t get a reasonable answer out of any of you with the executive branch leaning in on you to give these ridiculous answers today?
This morning, Senator Whitehouse voted to advance one of their nominations to the Senate floor.
Sheria Clarke, nominated to the District of South Carolina, was supported by all the Republicans on the committee, including her home-state senator Lindsey Graham. When the committee clerk called the roll, Senator Whitehouse — joined by Ranking Member Dick Durbin and Senator Chris Coons — also voted in favor of advancing Clarke’s nomination.
Clarke is the first judicial nominee to receive Democratic support in the Judiciary Committee since January, when Senator Whitehouse also supported the nominations of Clay Fowlkes and Aaron Peterson for district court judgeships in Arkansas and Alaska, respectively. For the two slates of nominees that followed (which included Justin Olson, Brian Lea, Megan Benton, Andrew Davis, Chris Wolfe, John Thomas Shepherd, and Anna St. John), Democrats on the Judiciary Committee voted against every nominee after each one gave painful responses to questions about the 2020 election and January 6.
It is unclear why three Democratic senators changed course today and supported Clarke’s nomination, especially given her responses.
In a statement this afternoon, Josh Orton, president of Demand Justice, criticized their votes in support of Clarke’s nomination. “Trump’s vengeance is not limited by geography, rationality, or law, and it’s impossible to believe that a judge unwilling to admit Trump lost in 2020 could provide a fair trial to, for example, an American facing a lawless political prosecution,” Orton said. “In a time of crisis, these three senators have chosen a delusion of normalcy over their obligation to their country, their constituents, their party, and the Constitution.”
When asked in writing whether Trump lost the 2020 election, Clarke simply responded that “Joe Biden was certified the winner of the 2020 election.” When answering a similar question about whether Joe Biden won the election, she added that “It is my understanding that litigation is currently pending with respect to this question” — and cited the judicial canons to justify not responding. When asked about January 6, she said that as a nominee “it would be inappropriate for me to comment on the characterization of the events that occurred at the U.S. Capitol on January 6, 2021, because it is a significant matter of political debate and also involves cases that are currently being litigated.”
When asked whether judges are “USA HATING” and “MONSTERS” for ruling against the administration, as Trump posted on Truth Social last May, Clarke said that “Under the Code of Conduct for United States Judges, it would be inappropriate for me to comment on political matters and ongoing litigation.” And when asked whether it’s a crime for a judge to rule against Trump’s desired outcome in a particular case, she wrote that “I would be remiss to comment on statements made by the President because the question calls for a response that requires me to express an opinion on a political matter. As a judicial nominee, it would be impermissible for me to opine on this issue.”
During the hearing last month, Senator Whitehouse actually called out Clarke in particular and said “it would be nice” if she could tell her “executive handlers” that she essentially doesn’t need to debase herself during the confirmation process. Senator Whitehouse pointed out that she has the support of Senator Graham, the second most senior Republican on the Judiciary Committee. He wanted her to say: “I think I’ll be okay. I don’t need to make myself ridiculous at your direction.” He said “It would be great if you could have said that. It’d be great if your answers were simple and honest here today. It’s really disappointing.”
What changed?
Senator Whitehouse’s office did not immediately respond to a request for comment.
Ranking Member Durbin has also spoken out about this before
Ranking Member Durbin, who also voted to advance Clarke’s nomination this morning, is one of the senators who asks about these issues in written questions. He also asked about the 2020 election two weeks ago when Eighth Circuit nominee Justin Smith appeared before the committee.
After Smith refused to directly answer his questions, Senator Durbin wasn’t pleased. “At the end of this exercise, at some point, there is going to be a video I’m sure that will be released, which will watch the painful explanation by every nominee from the Trump White House for the federal bench as to why they couldn’t answer the basic question every single person in this room knows is true. Donald Trump lost the election in 2020 to Joe Biden,” Senator Durbin said. “He may have denied it, but it’s a fact. And the reason why we continue to engage in these political gymnastics is a question about whether or not you can ever say no to Donald Trump when it comes to any future service. And that is a basic concern.”
At least twice during committee meetings last year, Senator Durbin has directly addressed these topics. On June 26, he said the following in his remarks about Missouri district court nominee Cristian Stevens:
I also asked Judge Stevens in written questions whether he denounced the January 6 insurrection. He responded in this way — saying the use of the word ‘insurrection’ drew a legal conclusion, and that it would be inappropriate for him to comment on a ‘highly contested political issue.’ The fact is that a violent mob ransacked the Capitol complex, and many of us witnessed firsthand, in an actual attempt to obstruct the counting of the ballots in the electoral college, that led to the deaths of five police officers and injuries to 140 other policemen. If Judge Stevens can’t acknowledge these basic facts and denounce the violence perpetrated against law enforcement on this day, I can’t support his nomination.
At the November 20 committee meeting, Senator Durbin again addressed this topic:
President Trump is still in full denial, and you hear all our nominees writhing in pain as we ask them the question — Well, who won that election? Well, I’m not supposed to say that Biden won the election, so I’ll just say he was sworn in as president — carefully tiptoeing through the facts of history, because they’re afraid it might offend the president of the United States. This reality has been a thorn in President Trump’s side. He’s taken unprecedented steps to whitewash history, to whitewash what all of us saw with our own eyes. Just like the demolished East Wing of the White House, President Trump is taking a wrecking ball to our democracy and our history. Day after day, he’s dismantling our constitutional order to protect himself and his followers and to attack his political opponents.
During other committee meetings, when Darin Smith — nominated to be US Attorney for the District of Wyoming — was on the agenda, Durbin spoke powerfully about January 6 since Smith, who is deeply unqualified, was on the Capitol grounds that day.
Still, even while making these statements, Durbin has voted since last year to confirm eight of Trump’s judicial nominees — who have all avoided answering important questions.
We’ll see what happens on the Senate floor.