Litigation

NY Times: High Court Must Revise Recusal ?Nonpolicy?

By Peter Hardin

Some recent news reports have questioned whether actions of some Supreme Court justices pose a threat to public confidence in impartial courts. Now an editorial in the New York Times, entitled “Politics and the Court,” has weighed in:

“When it comes to pushing the line between law and politics, Justices Antonin Scalia and Clarence Thomas each had a banner month in January.”

The editorial cites Justice Scalia’s 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) and Justice Thomas’ acknowledgment he didn’t comply with the law and failed to disclose his wife’s employment, including by conservative groups (see Gavel Grab post here).

The editorial needles Justice Scalia, saying he sometimes is nicknamed “the Justice from the Tea Party.” It slams Justice Thomas, saying his action confirmed “his scorn for concern about conflicts of interests and rules designed to prevent them.”

In addition, the editorial refers to a request by Common Cause to investigate whether the two justices had a conflict of interest when they ruled in the Citizens United case — and asking whether the decision should be vacated (background in Gavel Grab here).

“If the answer turns out to be yes,” the editorial continues, “it would be yet more evidence that the court must change its policy — or rather its nonpolicy — about recusal.”  The editorial suggests one avenue:

“One possible reform would be to require a justice to explain, in a public statement and in detail, any decision to recuse or not. It would be even better to set up a formal review process. A group of other justices — serving in rotation or randomly chosen — could review each decision about recusal and have the power to overrule it.”

Both justices, the editorial stated, “seem to have trouble with the notion that our legal system was designed to set law apart from politics precisely because they are so closely tied.”

Meanwhile a New York Times article dated the same day reports that Virginia Thomas, the wife of Justice Thomas, has set up a conservative lobbying shop and rebranded herself as a self-appointed “ambassador to the Tea Party movement.”

Virginia Thomas discussed her new role on libertyinc.co. It is a Web site for her political consulting business, Liberty Consulting, according to the article. You can learn more about Virginia Thomas’ past work, and questions raised in the context of her husband’s sitting on the high court, from Gavel Grab.

Full post as published by The Gavel on February 05, 2011 (boomark / email).