Litigation

Judicial Ethics Questions: Valid or Misplaced?

By Peter Hardin

Supreme Court Justices Antonin Scalia and Clarence Thomas have faced a liberal outcry in recent weeks questioning the judicial ethics of their “pushing the line between law and politics,” as a New York Times editorial put it (see Gavel Grab).

Now two analysts who respond to the critics have offered divergent commentaries.

Conservative writer Dan K. Thomasson has a commentary in the San Francisco Examiner entitled, “Clarence Thomas’ wife putting his judicial impartiality at risk.” A New York Times op-ed by professor Noah Feldman of Harvard Law School takes a different tack, under the headline, “Sometimes, justice can play politics.”

Thomas states that Virginia “Ginni” Thomas “has launched a new business to lobby for conservative causes that clearly raises questions about the impact it might have on her husband?s ability to render independent decisions. It could as a result limit his voice and vote on myriad issues before the court including election reform, health care and immigration ? all matters that his wife might have an active role in advocating for or lobbying against.” He goes further to ask:

“For whatever reason, Mrs. Thomas seems oblivious to the appearance of impropriety her job might cause….Does she not understand that there is nothing before Congress that might not also end up before her husband and that her involvement might bring about a challenge to his participation in a decision? She either is naive politically or callously unconcerned about how this looks.”

Harvard’s Feldman maintains that the heart of criticisms of Justices Thomas and Scalia don’t have to do with judicial ethics, but with an attack “driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.” He says some condemnation of the justices’ activities outside the courtroom seems “suspiciously partisan,” and he concludes:

“The justices are human ? and the more we let them be human, the better job they will do. Let the unthinkable be said! If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.”

Justice Scalia has encountered questions about his meeting privately to discuss the Constitution with a group of lawmakers in Congress led by the leader of the House Tea Party Caucus (see Gavel Grab post here). The watchdog group Common Cause has asked a Justice Department investigation of whether both he and Justice Thomas should have disqualified themselves  from participating in the landmark Citizens United case (for more, check out this Gavel Grab post).

Full post as published by The Gavel on February 14, 2011 (boomark / email).