The Appointments Clause of the Constitution does not specify qualifications for Supreme Court justices. So, presidents have routinely established their own criteria for nominating people to the Supreme Court.
by Kevin Seraaj, J.D., M.Div., Orlando Advocate
To get past the Senate vetting process, most presidents choose candidates who have relatively strong legal credentials and a decent reputation for expertise in a specific legal field. And while being a lawyer is not a constitutional or legal requirement for a Supreme Court justice, all nominees to date have had a legal background, meaning they all understand the seriousness of engaging in activities that evince the appearance of impropriety. The problem is that when it comes to the Supreme Court, the Constitution does not outline the intellectual or temperamental traits justices should possess.
The proverbial saying that ‘power corrupts, and absolute power corrupts absolutely’ conveys the view that, as a person’s power increases, their moral sense of right and wrong tends to diminish. Lifetime appointments give Supreme Court Justices— the final authorities on what the Constitution says and means— immense power. Justices with character flaws are no less imbued with power, and when power is bolstered by the arrogance of knowing it is nearly impossible to have them removed, corruption inevitably follows.
Clarence Thomas and Antonin Scalia, for example, were shown to have both been frequent recipients of money, trips, favors and other gifts from people appearing before the high court seeking favorable rulings. Thomas’ wife, Ginny, has made a very substantial living apparently trading her husband’s position for money, contracts and influence.
The late Justice Ruth Bader Ginsberg and retired Justice Stephen Breyer also “got while the getting was good.” Bader, to her credit, only accepted one trip. The others: hundreds. In the real, non-Supreme Court world we would call those things what they are— bribes. But the shroud of the High Court protects them from prosecution– or any form of meaningful censorship.
It’s not that nothing exists in writing. Last year, after the lavish gifting of Justice Thomas and Alito caused a media storm, and after the Court double-downed that Justices were fully capable of simply doing the right thing, the Justices did an about-face and cobbled up a quick ethics code. The code says, in part, that a justice “should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
Most recently, Justice Samuel Alito has formally refused to recuse himself from any and all cases involving ex-president Donald Trump or the January 6, 2021 insurrection. Recusal is a judge’s withdrawal from a case when he or she is not qualified to be involved because of a possible conflict of interest or lack of impartiality.
In an unbelievable display of bad judgment, Alito (he says it was “his wife”) actually flew the “Stop the Steal” flag at his home three days before Biden was inaugurated president. He also blamed her for publicly flying the U.S. flag outside his home upside down. Excuses aside, can there be a more obvious statement of his (and his wife’s) pro-Trump bias? This is exactly why he should recuse himself. But he refuses to do so. And I get it– after all, he can’t help his friend if he’s not involved in the decision-making process.
National security and political affairs analyst and commentator David Rothkopf recently noted— correctly, in my view— that “Alito, by saying he should not recuse, demonstrates clearly why he should not be on the court in the first place.”
To this reasonable person, flying Trump-support flags is a pretty clear indication of bias. While Justices are as entitled as anyone to have a bias or political preference, when matters come before the court that may cause such a bias to predetermine a Justice’s decision, he or she should voluntarily step aside– or be forced to do so. This is why lawyers routinely weed out biased jurors during jury selection– they are more likely to decide a case based on their biases rather than the evidence.
Despite all the revelations about judicial improprieties, and creation of the ethics code, little will change at the Supreme Court– principled Justices will continue to be principled, flawed ones will continued to be flawed, without consequence.
Years ago, Congress enforced ethics at the Supreme Court. Back in 1969 Justice Abe Fortas resigned under threat of impeachment for alleged financial improprieties unrelated to his duties on the court. Today, such a thing would simply never happen– thanks to a Trumped-up GOP and despite the Ethics Code:
“a Justice should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties, reflect adversely on the Justice’s impartiality . . ..”
The problem with the code is that it has no teeth. If a Justice of sufficient arrogance decides to ignore it, there is no penalty to pay for violating it. It would appear that an offending Justice would be expected to simply punish him/herself.
Supreme Court Justices have a license to be unethical for life, the so-called Ethics Code notwithstanding. Not all are inclined to use it– Chief Justice John Paul Roberts, for example, has reported very few gifts since joining the court in 2005. He seems to prioritize integrity over the appearance of impropriety.
Still, the absence of an enforcement mechanism is telling. It is patently unconscionable for any man or woman with no moral compass to be beyond the reach of all authority.
National security and political affairs analyst and commentator David Rothkopf recently noted— correctly, in my view— that “Alito, by saying he should not recuse, demonstrates clearly why he should not be on the court in the first place.”
It may be extremely naive of me and others similarly minded to believe that the Supreme Court could ever be more than the collective biases, prejudices and personal agendas of the people appointed to serve. But if justices get to be glaringly political in their approach to cases that come before the court, maybe the nation would be better served by a court that reflects that reality— one with an equal number of Democrats, Republicans and Independents appointed each presidential term. At least then we could dispense once and for all with the fantastical notion that the Supreme Court is an institution of high principles and judicial integrity.
Lifetime appointments for morally and ethically challenged people do the nation a great disservice in the long run.
POST UPDATED JUNE 2, 2024 09:50
