Wednesday, January 04, 2012


OK, Iowa is over for another four years. I'll let the dust settle and comment on the outcome another day. Suffice it to say that the results weren't exactly earthshaking.

What does come to mind this morning is that one of the themes injected into the last few weeks of the Republican campaigns was the the peskiness of the federal judiciary. Newt Gingrich took the extreme position that as president he would simply ignore any decisions he disagreed with and might even be open to having judges and justices arrested for more egregious displays of judicial activism. Given the current nature of the Supreme Court, it's hard to imagine Newt being terribly dismayed by any decisions emanating from that august body. Still, it's a meme popular with conservatives so it's not surprising he would trot it out.

Sadly, it's also not an entirely frivolous concern. Appointments to the federal bench are for a life time. The only way to remove a judge or justice is by impeachment, which is exceedingly rare and very time consuming. And while judges at the trial and appellate levels are governed by ethics rules, the justices at the US Supreme Court are not bound by those rules. That anomaly is coming into play at the present time with respect to the challenge of the healthcare reform law.

Conservatives want Justice Kagan to recuse herself because she was the Solicitor General when the law was being hammered out. Liberals want Justice Thomas to recuse himself because his wife heads a lobbyist group which wants the law stricken. There is no way to force either justice to do so under the current state of the law.

Chief Justice Roberts doesn't see that as a problem. He has stated that he has the utmost confidence that members of his court will always do the right thing when it comes to ethical considerations. His confidence may be well-placed, but that is hardly comforting, something the editorial board of the Los Angeles Times noted a couple of days ago. The editorial does point to one way to ensure that Supreme Court justices at least think seriously about the issue:

A federal statute states that any "justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The problem is that each justice decides for himself or herself whether to recuse, usually without explanation. A rare exception was a detailed statement issued by Justice Antonin Scalia in 2004 after he refused to disqualify himself in a case involving then-Vice President Dick Cheney, whom Scalia had accompanied on a duck-hunting excursion.

Legislation introduced by Rep. Christopher S. Murphy (D-Conn.) would require a justice who recused himself in a case to provide the reason. If a justice rejected a petition that he withdraw, the reason for that decision also would have to be made public, and that decision could be appealed to a panel of retired justices and senior judges. Finally, Murphy's bill would require the justices to abide by the Code of Judicial Conduct, which they presently consult but are not bound by. Congress should not interfere with the decisions of the court, but judicial ethics are a fit subject for legislation, which would be unnecessary if the court acted on its own.

The decision to participate in — or withdraw from — a controversial case is a weighty one, especially on the Supreme Court, where one recusal creates the possibility of a 4-4 tie. But when a justice complies with, or rejects, a serious request to withdraw from a case, the public deserves an explanation.

Rep. Murphy's bill is hardly an attempt to "rein in" the court and should pass constitutional muster. The problem will be getting passage of the bill, especially during an election year. And that's a shame.

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