The Dangerous Effort to Delegitimate Supreme Court Justices

It has been clear for some time now that activists have moved from impugning the character of conservative Supreme Court nominees to delegitimating them as sitting justices. Curt Levey has an interesting article idescribing these tactics and the possible motives of the attackers: Ganging Up on Justices Thomas, Scalia, and Alito. Here is how the article begins:

President Obama’s 2010 State of the Union address featured an unprecedented scolding of the conservative Supreme Court justices, seated before him, for their Citizens United campaign finance ruling. It signaled a dangerous escalation in the left’s politicization of the courts and “set the tone,” says Politico, for this year’s “aggressive — and, at times, personal — attack on the… impartiality and ethics of Justices Clarence Thomas, Antonin Scalia, and, to a lesser extent, Samuel Alito.”

The attack is being led by left-wing activist groups, talking heads, and a group of liberal congressmen. It is born of unhappiness about the Court’s recent and prospective decisions impacting the Obama agenda, as well as paranoia about a corporate cash-fueled, vast right-wing conspiracy headed by the Koch brothers. And it is maintained by cobbling together tenuous suggestions of conflicts and misconduct involving Scalia, Thomas, and Alito in the hopes of creating an ethical cloud.

At the heart of the charges are contacts that allegedly compromised the three justices’ ability to impartially decide cases, particularly Citizens United and the constitutional challenges to Obamacare. Much of the focus has been on the expense-paid attendance of Justices Scalia and Thomas at events connected to the semiannual conservative conferences organized by Koch brothers David and Charles, generous donors to limited-government causes and the left’s favorite bogeymen. A much-publicized complaint against the justices, submitted to Attorney General Eric Holder by the longtime liberal advocacy group Common Cause, centers on these conferences.

Liberal critics are also up in arms over Justice Scalia’s closed-door talk this January to a bipartisan group of congressmen because it was organized by the House Tea Party Caucus. Justice Alito skipped the Hill lecture and Koch conference, but was denounced by the left for attending conservative fundraising events, including dinners for this magazine. Even Alito’s natural reaction to Obama’s State of the Union ambush — in which the Justice shook his head and mouthed “not true” — has been widely portrayed as evincing a lack of impartiality and professionalism.

Justice Thomas’s wife, Ginni, has also been a subject of the ethics assault. The left is obsessed with her past and current employment by organizations — conservative nonprofits and Liberty Consulting — that potentially benefit from Citizens United or oppose Obamacare. A group of 74 House Democrats led by the always theatrical Anthony Weiner (D-NY) cited these ties and a related error on Justice Thomas’s financial-disclosure reports in an accusatory letter asking the justice to “recuse yourself from any deliberations on the constitutionality of [Obamacare].”

No There There

THE ETHICAL CONSTRAINTS on the conduct of Supreme Court justices are murky and open to lots of interpretation. The relevant federal law requires a judge to recuse himself where “he has a personal bias or prejudice concerning a party,” “a financial [or other] interest in the subject matter in controversy,” or where “his impartiality might [otherwise] reasonably be questioned.” If that language were interpreted broadly enough, the activities of the conservative justices and virtually every other federal judge would run afoul of the law. But under common, reasonable interpretations of the law, the charges against Thomas, Scalia, and Alito come up short. It suffices to say, as Politico did, that “even liberal legal experts have brushed off the complaints as hollow.”

“[I]t is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views,” writes Harvard Law School professor Noah Feldman in a New York Times op-ed, just as it would be if conservatives attacked Justice Breyer “when he consorts with his numerous friends and former colleagues in the liberal bastion of Cambridge, Mass.” Similarly, a Washington Post editorial points out that the conservative justices “are not the only members of the high court who routinely enjoy all-expenses-paid excursions funded by third parties, including some that may be considered controversial.” The Post cites liberal justices Sotomayor, Breyer, and Ginsburg as examples.

The motive for this assault?

When explaining why he introduced his Supreme Court ethics bill, Rep. Murphy admitted “My interest is certainly piqued by the fact that [the justices] may be taking on…the health care law.” Rep. Weiner was even more brazen in explaining the letter he and colleagues wrote to Thomas: “If Justice Thomas does not recuse himself and the Court rules [against] the law, I will be making the point that this is not a credible decision.” In other words, the plan is to try intimidation, and if that fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.

Yes, that Anthony Weiner, who was until recently the point person making these charges. The existence of this assault is clear, and was continued this week by the New York Times advancing another empty charge against Justice Thomas. This is a very dangerous maneuver. Just as the personal attacks on Republican judicial nominees discourage many qualified persons from accepting nominations and have resulted in a downward spiral of tit-for-tat personal attacks on Democratic nominees, this sustained “ethics” attack on conservative justices will eventually lead to similar attacks on the liberals. No one is so virtuous as to be above false attacks. This campaign will also serve to undermine the bite of genuine ethical lapses, which will inevitably get lost amid the noise of manufactured pseudoscandals. When “ethics” is used as a political weapon, ethics will ultimately suffer. And, in the process, the authority of the Supreme Court, which relies on its authority rather than on its power, will be undermined. By this route, another check in the scheme of “checks and balances” on Congressional and Presidential power will be dangerously weakened.

There is absolutely nothing wrong with criticizing the substance of decisions of the Supreme Court, and there is much to criticize. And there is nothing wrong with bringing genuine ethical lapses and conflicts-of-interest to light. But baseless politically motivated personal attacks on sitting justices are another matter entirely. Although nothing can stop these ad hominem attacks by activists from continuing, one way of muting their influence is simply to be more aware of their sources and motives. Reading Levey’s article is a useful start.

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