Acting Attorney General Matthew G. Whitaker said that judges should have a "biblical view" that he could not support candidates who are "secular" and declared that federal courts should be the "inferior branch" of the government.
Whitaker's remarks, made during an unsuccessful bid for the US Senate in 2014, have drawn a new investigation since President Trump called him Wednesday to replace deposed Attorney General Jeff Sessions.
In a debate on April 25, 2014, moderator Erick Erickson asked the candidates for their faith. Whitaker said that if he was elected, he wanted judges who "have a biblical view of justice, which I think is very important …"
Erickson intervened: "Levitical of New Testament?"
"I am a new will," Whitaker replied, according to an account from that time in the Des Moines Register. & # 39; And what I know is, as long as they have that world view, that they will be a good judge. And if they have a secular worldview, where all this is what we have here on earth, then I'll be very worried about that judge. & # 39;
Anti-Defamation League spokesperson Todd Gutnick said Friday in a statement that Whitaker's remark was "very disturbing … the idea that non-Christian judges are being disqualified from the service is clearly wrong."
A spokesman for the Ministry of Justice, who refused to speak in history, defended Whitaker's comment and said: "A biblical view of justice equals justice, goodness and impartiality."
Irrespective of that, Whitaker told an Iowan blog called Caffeinated Thoughts, in which candidates from the Senate were interviewed: "The courts are supposed to be the inferior branch of our three government departments."
When asked about the worst decisions of the Supreme Court, he criticized the 1803 ruling Marbury v. Madison, which serves as the basis for the way in which courts have judicial review of public order.
Whitaker said the case enabled the Supreme Court to be "the last referee".
Stephen Vladeck, law professor at the Law School of the University of Texas, said in an interview that "it is alarming for someone who acts as the main law enforcement officer of the nation to have such an upbeat view of the role of the federal courts, I think if he was actually nominated to maintain the position he temporarily holds, it might be a disqualification. & # 39;
The court spokesman said that Whitaker only made a point of separation of powers: that each of the branches maintains independent authority and responsibility and that no branch is more powerful than the other, including the judiciary.
A Whitaker spokesperson did not respond immediately to a request for comment.
Marbury v. Madison is written by the fourth supreme judge of the nation, John Marshall. It is known for his statement that "it is emphatically the province and the duty of the legal 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 based on the epic decision in Marbury against Madison," Constitutional scholar William Van Alstyne has written.
It is the basic ruling of the judiciary, although some conservative lawyers who feel that courts have too much power have criticized the decision as a creation of authority rather than a recognition of the authority conferred by the Constitution.
Chief Justice John G. Roberts Jr. has praised Marshall's efforts as a form of legal restraint – in the specific case, Marshall concluded that the court did not have the power to do what was required – and a bold statement about the role of the judiciary.
In an interview in 2006 for a television program Roberts praised the logic of Marshall.
"Nothing in the Constitution says it's the role of the Supreme Court to interpret the Constitution in a way that would bind the other branches," Roberts said. "But Marshall leads you very clearly through his reasoning Marbury v. Madison. He says, what is the constitution? It is law. It is a law that people have set up to control this new government. What do courts do? It is the task of the court to say what the law is. If the Constitution is involved in a particular case, then it is the task of the court to say what the Constitution means. And that was his way of reasoning. Very easy. "
At his recent hearing on the confirmation, Justice Brett M. Kavanaugh described it as "one of the four greatest moments in the history of the Supreme Court."