In an April 25, 2014, debate, moderator Erick Erickson asked the candidates about their faith. Whitaker said that, if elected, he would want judges who “have a biblical view of justice, which I think is very important …”
Erickson interjected: “Levitical or New Testament?”
“I’m a New Testament,” Whitaker answered, according to an account at the time in the Des Moines Register. “And what I know is as long as they have that world view, that they’ll be a good judge. And if they have a secular world view, where this is all we have here on Earth, then I’m going to be very concerned about that judge.”
Anti-Defamation League spokesman Todd Gutnick said in a statement Friday that Whitaker’s comment was “deeply troubling . . . the notion that non-Christian judges are disqualified from service is patently wrong.”
A Justice Department spokesman, who declined to speak on the record, defended Whitaker’s comment, saying, “A biblical justice worldview is one that upholds justice, goodness and impartiality.”
Separately, Whitaker told an Iowan blog called Caffeinated Thoughts, which interviewed Senate candidates, “the courts are supposed to be the inferior branch of our three branches of government.”
When asked about the worst Supreme Court decisions, he criticized the landmark 1803 ruling in Marbury v. Madison, which serves as the foundation for the way courts have judicial review of public policy.
Whitaker said the case enabled the Supreme Court to be “the final arbiter.”
Stephen Vladeck, a law professor at the University of Texas Law School, said in an interview that “it is alarming for someone who is acting as the nation’s chief law enforcement officer to have such a stilted view of the role of the federal courts. I think if he had actually been nominated to hold the position that he is temporarily assuming, it might well be a disqualifier.”
The Justice spokesman said Whitaker “was simply making a separation of powers point — that each of the branches retains independent authority and responsibility and no branch should be more powerful than the other, including the judiciary.”
Marbury v. Madison was written by the nation’s fourth chief justice, John Marshall. It is famous for its declaration that “it is emphatically the province and duty of the judicial department to say what the law is.”
“The concept of judicial review of the constitutionality of state and federal statutes by the Supreme Court is generally rested upon the epic decision in Marbury v. Madison,” constitutional scholar William Van Alstyne has written.
It is the foundational ruling of judicial power, though some conservative legal scholars who think courts have too much power have criticized the decision as a creation of authority rather than a recognition of the authority granted by the Constitution.
Chief Justice John G. Roberts Jr. has praised Marshall’s efforts as both a form of judicial restraint — in the specific case, Marshall concluded the court lacked the power to do what was asked of it — and a bold statement about the role of the judiciary.
In an interview in 2006 for a television program, Roberts lauded Marshall’s logic.
“Nothing in the Constitution says that it’s the role of the Supreme Court to construe the Constitution in a way that would bind the other branches,” Roberts said. “But Marshall walks you through his reasoning quite clearly in Marbury v. Madison. He says, what is the Constitution? It’s law. It’s law that the people have established to control this new government. What do courts do? It’s the job of the courts to say what the law is. If the Constitution is implicated in a particular case, then it’s the job of the courts to say what the Constitution means. And that was his mode of reasoning. Very straightforward.”
During his recent confirmation hearing, Justice Brett M. Kavanaugh described it as “one of the four greatest moments in Supreme Court history.”