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Bench Memos

NRO’s home for judicial news and analysis.

Is It the Times, or the Onion?



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Savagely beating back all rival claimants for the title of World’s Silliest Newspaper, the New York Times editorializes today that Justice Clarence Thomas’s memoir My Grandfather’s Son is so suffused with anger (but see Mona Charen for the rest of the story) that Justice Thomas should . . . wait for it . . . recuse himself in all cases involving the interests of those who opposed his nomination!

So.  If  political forces, fearing a judge will be seated who will not agree with their arguments on legal issues, gin up a phony scandal to destroy a nominee’s reputation, and the nominee survives the assault and wins through to a seat on the bench, but remains peevish with those who sought to destroy him, he is thereafter forbidden by judicial ethics to sit in judgment on the persuasiveness of those legal arguments that they feared he would reject.  Neat trick: heads they win, tails he loses.  Since no normal human being can be expected to be utterly dispassionate about past assaults on his good name and reputation, this is a surefire winner for the most unscrupulous interest groups and politicians.  The worse you behave, the more good will come of it in terms of the ethical constraints you can impose afterwards on the judge.

It is true, as the Times says, that “justices should recuse themselves from participating in cases in which they are biased against a party or lawyer or in which their impartiality might reasonably be questioned.”  But, not surprisingly, the Times has adopted a skewed understanding of what “bias” and “partiality” are in the judicial context.  The relevant question is, where do a party’s interests cross paths with the judge’s interests?  Like everyone else, judges have opinions, even strongly held ones, about persons and groups as well as about issues.  They are paid to set those aside–unlike senators and newspaper editorial writers. 

The logical consequence of the Times’ position would be that no judges could decide any cases at all, because they are human beings who have notions.  But the Times editors wouldn’t apply that standard across the board.  Only to Justice Thomas, who has a special place in their hearts.



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