July 01, 2011

Randy Barnett on Curt Levey's Article in American Spectator

From Randy Barnett at the Volokh Conspiracy, in a post titled "The Dangerous Effort to Delegitimate Supreme Court Justices:"
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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