According to United States Law, "Reasons for disqualification are laid out in the United States Code (Title 28, Section 455), but the justices themselves are their own final arbiters". According to the statute, Justices, judges, and magistrates should recuse themselves if they have a personal bias concerning anyone in the case, or independent knowledge of the facts in dispute; if they worked on the case as a private or government lawyer; or if they or close relatives have a financial interest in the case ( http://www.slate.com/id/1006177/)." In the past, Justice Scalia was politically forced to defend his buddy-buddy relationship with then Vice President Dick Cheney, by basically saying--hey, we are people too and should be able to have friends and besides (an argument also made by Justice Ginsberg--if I step down it'll be a 4-4 split and then what? (http://www.slate.com/id/2097350/#add-comment). From this same article, Lithwick spells out the test for us, "The legal test of whether a Supreme Court justice should recuse himself asks, unhelpfully, that judges step aside when their impartiality might reasonably questioned.'"
Here we are again in 2011, and in the past six months, several Justices have been skirting the edge of what I believe is a degradation of the Court. Now, let me make this clear--I am not accusing Justice Scalia, Justice Thomas of any specific wrong doing--these facts are not in evidence. However, far more important to our system of government is that all Justices avoid the perceived impartiality or bias. Let's take a look at two recent threats to the perceived impartiality of the highest Court in the land. First, my least favorite Judge (always important to admit your own bias) Justice Clarence Thomas. There are many reasons for my distaste...but, for a short and simple explanation, let me just say I watched the Thomas/Hill hearings and wrote about them at the time and I still believe Anita Hill.
Justice Thomas' wife, Ginni Thomas (she of the late night phone calls to Anita Hill in recent months) is and has been for many years an activist in Tea Party/Conservative circles. His wife's claim is that her First Amendment's rights don't end simply because she is married to a Supreme Court Justice (http://www.slate.com/id/2248017/). However, just yesterday, Justice Thomas came under fire from watch dog groups for not reporting her income from Liberty Central (among other employers) for 13 years (http://articles.latimes.com/2011/jan/22/nation/la-na-thomas-disclosure-20110122). Now, why does this matter? Because if it is an oversight on Justice Thomas' part, it is a massive one and a bit hard to believe...but, if it was intentional--to avoid scrutiny, then it is blatantly unethical and means his wife earned a substantial amount of money from Conservative activism on issues that have already faced the Court and more on the way...
Onto our next set of Justice no-no's...attending partisan events, particularly if no media is allowed. Just this week, Justice Scalia ( also not one of my favorites, but a brilliant mind and sometimes funny at least) attended a closed door event sponsored by Rep. Michelle Bachmann (R, Minn.) According to the New York Times and the Washington Post, "Justice Antonin Scalia's decision to give constitutional pointers Monday to the House Tea Party Caucus" was widely criticized by watch dog groups. The Healthcare reform that passed last year will certainly end up in front of the Court. How do we know what was discussed in this meeting sponsored by people who are actively and loudly advocating a repeal of this law. Imagine my Conservative friends, if the shoe were on the other foot...Justice Ginsberg (may she live forever) attends an ACLU event without press present, knowing that these same lawyers/activists will appear in front of her in significant cases in coming months. Regardless of actual impropriety, it is the perception of impropriety that matters.
Here's what I don't know (because I haven't done enough research)--what were the arguments by the Founders about how to shape and form the Supreme Court? Did these sorts of questions come up? We know that the Founders had disagreements about how to shape their new Democracy for years...fighting fiercely over each and every word. What were there arguments about how to provide accountability to the Supreme Court? Did they need a body that was above all others with little chance for accountability? Why? Is there no recourse for a Justice who tarnishes the Court with the perception of impartiality?
Why does this matter to you? Because the Supreme Court is supreme. It makes decisions that can take your property, decide how you live your private life, give Corporations the same rights as individuals (still the one that irks me the most--see the film The Corporation for more info), make it ok for any individual foreign or domestic or Corporation can anonymously decide to fund a candidate in an unlimited way (thanks Citizens United! http://www.npr.org/blogs/itsallpolitics/2010/10/07/130399554/fresh-air). Now, some liberal watch dog groups argue that Citizens United may ultimately be overturned because of yet another conflict of interest involving Justice Thomas and Justice Alito. According to Thom Hartmann, "In the petition to the DOJ - Common Cause argues that Justices Clarence Thomas and Antonin Scalia should have recused themselves from the Citizens United case since they were actively involved in political strategy sessions hosted by the billionaire Koch Brothers - two men who benefited considerably from the Supreme Court's ruling (http://www.opednews.com/articles/Could-the-Supreme-Court-s-by-Thom-Hartmann-Har-110120-990.html)."
It is doubtful that this will come to pass and you may ask yourself--who polices the police? With regard to the Supreme Court, it seems we must trust in the innate integrity of the Justices to recuse themselves to protect the Court as a whole from the perception of impropriety. Unfortunately, at least two members of the Court have repeatedly demonstrated by their actions that this is not a concern for them. As for us...the common citizens who face all the consequences of the decisions decided by the Court--it is cause to mourn why the Founders did not foresee such a circumstance and provide a check and balance on the Court itself. My suggestion: one member of the Court should be able to anonymously (to preserve the congeniality of proceedings) suggest and provide evidence of why a peer Justice should be recused. The case should be presented to a Jury of everyday people. Of course, this would have to be passed by Congress as a law and we all know that in the partisan cess pool that has become Congress--this has no chance of being addressed.
Most Americans are (sadly) vastly ignorant and apathetic about politics in general and can't even name one Supreme Court Justice (http://news.yahoo.com/s/ynews/ynews_ts2356). I'm not sure most people think it really matters what happens up there in the staid halls of justice--until something impacts them personally. I'm begging you...if you are 2 out of 3 Americans that cannot name a Justice...start reading. Take a class. Read a book. If you love America...love her history, her present, her (perhaps precarious) future. Flying a flag or sticking a yellow ribbon on your car is simply an easy way out. Taking time to truly learn about and shape your country and your community is much, much harder. What makes a patriot? Do you really love your country? Democracy is fragile and demands the participation of its citizens to continue to evolve and stabilize simultaneously. Please do your part.
Btw, I know students, former students and teachers that I did not use proper MLA format. I chose not to because in an online forum, links can be followed immediately.
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