Ex-Senator Arlen Specter has penned an opinion piece arguing the case for Justices Kagan and Thomas to recuse themselves from the Supreme Court's upcoming consideration of the Affordable Care Act (the health care law passed in 2010, I think).
He's correct in suggesting that the Court's opinions in Gore v. Bush and Citizens United v. Federal Election Commission have tainted its reputation for integrity and objectivity, at least among Democrats. Yet we shouldn't forget times when earlier Court decisions, in a differently tilted political environment, provoked the same kind of mistrust among Republicans.
But even if the Court does from time to time meander toward the impression of political favoritism, I don't believe Specter's suggestion that "Congress should act" to put in place some review system requiring a justice to justify his/her refusal to recuse. To do so would be to perpetuate the very thing we presumably don't want: Greater politicization of the proceedings of the court.
With such a procedure in place, partisans of all stripes would be further encouraged to raise a ruckus whenever they had a major "cause" being heard by the Court, turning every halfway controversial case into a circus; the process of confirming a new Justice would become more political too, especially for those nominees coming from recent service in a government position; and the decisions of any evenly divided Court such as our current one, could be skewed by removing one presumed (though not always predictably so) "safe" vote on one side or the other.
In the case of the health care law, for example, it would be assumed that if Kagan helped write and argue for the law, she did so in impartial discharge of her duties at the time and now will nevertheless be able to view it through a different prism; and if Thomas's wife is a vocal opponent of the law, Thomas himself would be able to form his own independent position without reference to her.
Last but not least I see a subtle point of "philosophy of government" here. In years past, we and our political leaders have always assumed, where evenhandedness and lack of bias were required in the interests of the nation -- on the Supreme Court, in executive positions, or even in middle-level government management -- that individuals in such positions could and would muster enough professional integrity and pride to rise above their personal political preferences. Thus was Franklin Roosevelt, for example, able to appoint Republicans of note, as well as industry magnates, to key positions in his administration.
Nowadays people seem to assume not only that such persons won't, but can't be expected to, remain impartial, so they must have all kinds of rules and limits imposed on their actions (which really means continual second-guessing on decisions). This is not only condescending to those affected, but it lowers standards for those who might fill kep positions, and it makes government less effective and slower to act.
So let's avoid the "specter" of Congress trying to involve itself in the court's recusal process. it reflects a deteriorating standard of objectivity, not so much perhaps among the justices, as among critics outside the Court.
Comments