But the Conquered, or their Children, have no Court, no Arbitrator on Earth to appeal to. Then they may appeal, as Jephtha did, to Heaven, and repeat their Appeal, till they have recovered the native Right of their Ancestors, which was to have such a Legislative over them, as the Majority should approve, and freely acquiesce in.
-John Locke

Sunday, June 26, 2011

NYT Takes Up Where Weiner Left Off

Disgraced and soon-to-be-former Congressman Anthony Weiner had been leading a charge against US Supreme Court Justice Clarence Thomas, claiming that the justice should recuse himself from hearing the Obamacare case(s).  Specifically, the left is claiming that Thomas's wife's participation in a group that is against Obamacare necessarily mandates that Thomas not participate in Obamacare hearings.  This is nothing more than a weak stunt to hedge the expected outcome of the case; if the Justices decide along traditional conservative-liberal lines, then Obamacare is expected to fail on a 5-4 vote.  Removing one of the five (Thomas) could result in a split-vote, and the decision (even if against Obamacare) would not be precedential for purposes ofstare decisis.  Further, assuming that Thomas does not recuse himself, the left's hope is then to marginalize the decision by raising the false specter of judicial misconduct.  Think of all the people who believe that GWB was unjustly awarded the Presidency by a conservative Supreme Court; those are the same people who won't accept the decision that Obamacare is unconstitutional.  Buckle up!

Today, with Anthony Weiner reduced in profile, the NYT picks up the slack and runs this story about Justice Thomas.  It's a bit lengthy and mostly full of, well, filler and no meat. In short, it might read: Justice Thomas has a rich friend who donated money to build a museum and help preserve pat of a Congression-designated historical/cultural corridor.  Other pertinent facts are that Justice Thomas' mother used to work at the site of the museum as a crab-picker, and Justice Thomas grew up nearby.

The article tries to suggest that Justice Thomas is engaging in unethical behavior, although the writer can't quite bring himself to say exactly what the Justice has done that is unethical, choosing instead to simply waft the suggestion around.  Interstingly, the writer cites a law prof who, in advocating for more strict judicial ethics, states what the Justice shouldn't do.  However, another law prof states that he couldn't characterize the Justice's involvement as unethical.

Mostly, the article is heavy on useless filler and light on facts that relate directly to the writer's thesis.

Judicial ethics, particularly for Federal Judges, are based on general guidelines, things judges should or should not do, and the Canons state that "judges may reasonably differ in their interpretation."  Is would suggest reading Judge McKoski's Law Review article on the subject of impartiality.  At the Supreme Court level, impartiality is measured in the decisions issued by the court, and not by rampant, partisan speculation prior to a case even getting to the Supreme Court.

The war that is being waged against Justice Thomas is nothing more than a final effort from the left as Obamacare circles the drain one last time on its way to defeat.  The argument for recusal is weak, at best, and gives zero credit to Justice Thomas' abilities and track record as a jurist to perform his duty free of bias.  Of course, the left has never been overly preoccupied with the importance of fulfilling governmental duties - the Senate still hasn't provided a budget!

UPDATE: Jonathan Tobin's take on the story

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