Beyond the Bounds of Ethical Norms?

by Matthew J. Franck

Every so often in Washington politics, tired old retread politicians–sorry, that would be “wise old statesmen”–issue Olympian pronunciamentoes that we could do without.  The latest such yawp that I have seen comes from Lee Hamilton, David Boren, Zbigniew Brzezinski, and a handful of others, published in the current online issue of the New York Review of Books.  Billed as a letter to President Obama on Middle East policy–and seemingly sent to him privately in January, and only now published–the statement takes a (predictably) tough line against Israel, which comes in for the only blame the authors can muster to assign to anybody for anything, while coddling the Palestinians and asking essentially nothing of them.

But regardless of the political position taken in the letter, what should make it of interest to Bench Memos readers is that one of the letter’s signatories is Sandra Day O’Connor.  Were Justice O’Connor fully and completely retired, this would be no one’s business but her own.  But O’Connor has taken “senior status,” not full retirement from the bench, and still occasionally sits on circuit panels and adjudicates cases.  She is still, in short, a serving federal judge in some capacity.

What is the propriety of a serving federal judge–even one on senior status–lending her name to a campaign to lobby the president of the United States to pursue certain objectives in foreign policy?  We know that Justice O’Connor has felt liberated to engage in various sorts of politicking since she vacated her seat on the Supreme Court.  Ed Whelan has rightly raised the ethics questions such behavior prompts.  Is Justice O’Connor capable of no ethical self-examination?  Does she lack the gene for embarrassment?

This latest escapade, whatever the letter of the ethics standards (which do not, in terms, apply to Supreme Court justices, active or “senior,” but which supply some sound guidance), is an intervention in politics that would raise howls of outrage if it were, say, a senior-status Justice Scalia signing a public pro-Israel letter to the president.  I’m quite sure he would never do it, and that no conservative elder statesman would invite him to sign.  But on the left, it seems, ethics are optional (as a certain congressman is daily reminding us).

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