Wednesday, March 16, 2011

To Recuse or Not To Recuse...

I learned something new today.  I love learning new and curious things, but it is a particular joy when that new fact (or in this case, a phrase) fits right into something that has been really bugging me.  
The newly discovered Latin phrase is, I learned today from a New York Times editorial, [Here] an old and established legal principle:  nemo iudex in causa suaThe Times tells us that it means “no one should be a judge about his or her own case.”
This brings us, of course, to our Supreme Court’s curious recusal policy--or lack thereof.  Our highest court’s justices enjoy life appointments to assure their independence from political pressures and influence.  However, we leave it up to each individual justice’s conscience to decide whether to recuse him or herself when a particular issue arises for which a justice might not be impartial.  Remember Justice Scalia’s hunting trip with Dick Cheney after the court had scheduled a case involving the Vice President?
The editorial mentions that a bipartisan group of 107 law professors from 76 different law firms have made a proposal [Here] to the House and Senate Judiciary Committees, urging them to enact legislation to have the Supreme Court Justices follow the procedures and ethical codes that all other federal judges follow.  The Times points out that under that code Scalia would not have gone on that duck hunting trip.  (Incidentally, accompanying Cheney who has a gun in hand is not such a hot idea.)        
The editorial did not mention the uproar that has surrounded Clarence Thomas’s wife Ginny who has worked for various rightwing advocacy groups and who has recently opened her own rightwing lobbying firm.  What would have happened with Citizens United v. FEC and its subsequent effects on corporate rightwing funding if both Scalia and Thomas had recused themselves because of their attendance at Koch strategy sessions?  Certainly the SCOTUS vote would have gone 4 to 3 against instead of 5 to 4 for. 
The Times also said this about the current call for a clear recusal policy: [Here]
The court is still not addressing the issue despite months of questions about possible cozy friendships, suspected political biases and family ties. Last week, Justice Antonin Scalia was asked to recuse himself from an upcoming case about alleged gender bias at Wal-Mart Stores because his son is co-chairman of the labor and employment practice at the law firm representing the company.
The Times would prefer that the court come up with its own plan rather than have Congress write one for it.  With the current make-up of the Court, can we trust it to monitor itself?  
Nemo iudex in casa sua...    

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