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Another Liberal End-Run Around the Constitution?



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The Wall Street Journal this morning looks at Pat Leahy’s new court-packing plan, joining Ed Whelan in questioning its constitutionality: It would effectively re-appoint Supreme Court justices who have relinquished their seats and been replaced, and does so not through the constitutional means of nomination by the president and confirmation by the Senate, but by a simple majority vote of the Supreme Court justices eligible to sit on a case in which one justice has recused himself.

The plan appears to be a bald political move designed to give the three left-leaning retired justices another shot at impacting the Court. Remember, the most common absence this term will be the presumably liberal Justice Kagan, who will recuse herself from 25 cases this term. Furthermore, Leahy’s proposal would insert even more politics into justices’ recusal choices. Knowing your vote could be replaced by, say, John Paul Stevens’s would not make the recusal decision easier for any of the justices right of center. Chief Justice Roberts had the best solution for the recusal issue (to call it a “problem,” as Leahy does, seriously overstates the impact of the rare cases in which justices are recused and 4-4 results are reached): He simply sold stock in the company that was to come before the Court as a party. This avoids any appearance of partiality on his part and permits the Court to operate with its full complement of justices.

That said, it is a strange world when ownership of — in Chief Justice Robert’s case — $15,000 of stock could cause us to question a Supreme Court justice’s impartiality. After all, how much will stock prices change with the outcome of the cases before the Court this term? If the prospect of several hundred dollars in stock gains or losses will really color a justice’s opinion in a case — well, in my book, he doesn’t win points for judicial temperament. (For the record, I am confident Roberts could have decided the cases impartially even before his stock sales, although recusal on stock-ownership grounds is a well-established Court practice.) There are other huge values at stake in Supreme Court cases, including literal matters of life and death, and we trust the justices to deal with them on a regular basis.

Recusals and conflicts of interest pose a much smaller threat to the Court’s legitimacy than the rhetoric of President Obama and Democratic senators over the past year, trumpeting misconstruals and even lies about Court decisions they disagree with. Leahy’s plan is hardly the way to bring dignity and the proper level of judicial temperament to the bench.



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