Wednesday, February 16, 2011

The Selling of the Supreme Court

It is hardly surprising but nevertheless extremely disappointing to learn that Justice Clarence Thomas and Atonin Scalia have sold out the country by refusing to recuse themselves from the Citizens’ United case due to their close association with the groups that both brought the case and benefited from their votes. Additionally, Justice Thomas’s wife was the CEO of an organization that had a vested interest in the result. Federal ethics laws would have required the justices to recuse themselves from this case for either of those two reasons and because neither situation was common knowledge at the time they saw no need take the high road.

The organization Common Cause has written to Attorney General Eric Holder asking him to investigate the matter and if appropriate to petition the court to vacate the decision. It is not my intention to lay out the facts all over again and I would urge anyone interested in the story to look at the Common Cause website where the facts and supporting documentation are expertly and coherently laid out.

In theory the Supreme Court is a non-partisan and a-political branch of government whose purpose is to adjudicate the cases brought before it in terms of their constitutionality. Unlike lower courts they do not consider themselves finders of fact or arbiters of the truth. Their sole purpose is to ensure that the lower court’s rulings are in line constitutionally in order to protect the integrity of that most precious of documents. Unfortunately that theory has transmogrified into an ever more politically based institution responding to its various constituencies in a very aggressive and activist political manner.

The process of getting a nominee approved for the high court has evolved into a witch hunt centered on the candidate’s political philosophies and ignoring their judicial qualifications for the most part. Partisan bickering over their perceived judicial temperament or how they are likely to vote on various issues seems to be the only consideration. Liberals want liberal judges and conservatives want conservative judges and their constitutional knowledge and qualifications be dammed.

Over time that attitude has divided the court in a way that it is consistently described by how it leans one way or the other politically. Decisions that are decided five to four are typical of a divided court and some now think of the court more as a super legislature than a judicial bench considering legalities. This is a frightening and intolerable situation that threatens the very fabric of our constitution and the principals on which we were founded.

To be sure the sitting justices are human and prone to have predilections, prejudices’ and political beliefs that influence their views and opinions. One would hope though that through a process of conversation, argument and debate with their sole purpose being the fairest and finest finding of constitutionally appropriate applicability they would be capable of putting personal preference aside for a more judicial approach.

There is no doubt that Justices Scalia and Thomas should have recused themselves and that if they had done so the ruling would have been different, in fact it would have been four to three against. That two justices of our highest court would rule on a case where they are closely involved or benefiting financially from their involvement with either of the litigants is just unconscionable on their part and should be resolved through impeachment. Once trust is broken it is irrevocably broken especially with one so highly placed.

It would be an open invitation to those people and entities that would not hesitate to compromise a sitting Supreme Court justice either financially or through strictly ideological postulation if we let this impropriety pass unpunished. The court needs to be put on notice that if any member transgresses the ethical, moral or legal boundaries’ they are expected to observe and respect that we will quickly move to terminate their privilege and regulate them to history’s garbage dump.

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