The New York Times reports Justice Thomas' five year silence on the Supreme Court and an op-ed piece makes light of the Justice's partisan connections. Both reflect poorly upon the Justice and the Court.
On my first day as a federal judge I ate lunch at a local restaurant close to the courthouse. As I was attempting to pay my bill (for a grilled cheese sandwich and a glass of milk), the cashier said that my bill had been paid by a lawyer whom he pointed out to me. The lawyer (whom I did not know) waved. I walked over to his table, thanked him, and reimbursed him for the lunch. Prof. Feldman (for whom I have great respect) asks rhetorically whether anyone seriously thinks "Justice Thomas would become more constitutionally conservative as a result of his wife's political activism?" The answer obviously (or probably) is: No. But that is only half of the question. The question is: Will the public justifiably perceive that Justice Thomas' opinions are influenced by his wife and her activities.
I also hope that no one would think that I would be influenced by someone purchasing a grilled cheese sandwich for me, but how would the lawyers, the jurors and the cashier in that courthouse restaurant perceive me for accepting it. The test isn't only actual bias or influence but rather the appearance of it. I do not doubt Prof. Feldman's historical anecdotes regarding political activity by former Justices, but to equate Justice Robert Jackson serving as chief prosecutor at the Nuremberg trials with attending a party at the Kochs or the political activities of Virginia Thomas is a stretch. No spouse of a sitting Justice to my knowledge has ever engaged in such blatant, partisan and anti-administration activities on issues likely to come before the Court as Justice Thomas' wife.
Judges running for office and accepting contributions can all say I will not be influenced by such contributions, but does the public believe that? Chief Judge Jonathan Lippman speaking on that very subject said: "Nothing could be more important for the judiciary that to have the public see that we are neutral arbiters of disputes. If we don't have that, we don't have anything."
Prof. Feldman suggest that if the Justices had enjoyed the real world experience of drinking regularly with President Clinton, they never would have mistakenly let the testimony of the president be taken 'and the resulting impeachment that preoccupied the government for more than two years." True as to the mistaken decision, but how much worse for the country if the decision were perceived to be have been based upon personal friendship with or personal opposition to the president.
Paling around, "hobnobing" or "consorting" with persons of like mind and learning the ways of the real world as Prof. Feldman recommends is to be applauded, but activities which raise questions about the Court's impartiality and may serve to impugn its decisions and integrity are not. Justice and the public's faith in it does not require "isolation" or becoming a "monk," but rather impartiality and the appearance of it.
I have previously written on the subject of electing judges. To read my post, click here.
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