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The price of Scalia's political stardom
Justices who flaunt their politics publicly do more than just lecture - they also can raise cash for ideological allies. Scalia and Thomas have reportedly attended events funded by conservative billionaires David and Charles Koch. Last week, Thomas admitted through a spokesman that he "dropped by" a Koch session in 2008. Both justices were even featured in Koch promotional material with Glenn Beck and Rush Limbaugh.
Alito has spoken at a fundraiser for the Intercollegiate Studies Institute, a conservative educational group. He regularly attends conservative fundraisers, including a recent event for the American Spectator magazine; he headlined that annual dinner in 2008. When confronted about his presence at the clearly partisan event, Alito dismissed concerns, saying, "It's not important."
But it is important. Perhaps not to Alito or Scalia, but to the court. If justices come to personify political movements, the law appears to be merely an extension of the personalities - and the politics - on the bench.
Some judicial commentary and appearances raise serious ethical questions. Canon 4 of the judicial Code of Conduct states that a federal judge should not take part in any activities that "reflect adversely on the judge's impartiality." This canon specifically warns that "a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose."
But this code applies only to lower-court judges; the members of the highest court in the land are not, in fact, subject to any code of conduct. The only direct limitation is the federal law that requires a judge or a justice to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This law, however, lacks a process for making a complaint and has never been enforced against a justice. Each justice is left to be the judge of his or her own alleged misconduct.
This is not a problem only for the more conservative justices. While Justices John Roberts, Scalia, Thomas and Alito have all spoken to or been honored by the conservative Federalist Society, Justice Ruth Bader Ginsburg has headlined for the liberal American Constitution Society, and Justice Stephen Breyer appears frequently before outside groups. In one speech at a foreign conference, Ginsburg assailed conservative members of Congress for statements that she said "fueled" an "irrational fringe" that threatened her life.
Ginsburg's remarks highlight an irony with celebrity justices. During her confirmation hearings in 1993, she refused to answer questions about issues that might later come before the court. Thus the "Ginsburg rule" was born: Aspiring justices, at very cautious confirmation hearings, avoid engaging on the substance of their legal opinions. Yet, after confirmation, justices are increasingly entering into public debates over the law.
Monday's Bachmann-convened summit featuring Scalia magnifies this problem. The effort to educate new lawmakers about the Constitution is commendable. (I have met several times with members of Congress, including Bachmann, for lunches to discuss constitutional principles.) However, if Scalia educates new members, that undermines both the court and Congress. The principle of judicial neutrality should not be compromised for a legal seminar.
Justice Robert Jackson once advised that justices "are not final because we are infallible, we are infallible because we are finalâ." That winking observation is certainly true - justices Justices clearly can make mistakes. Few can resist public adoration. However, as they justices yield to that temptation, citizens may find it hard to accept the finality of their decisions. If justices merely carry the torch for their political allies, law becomes little more than a part of politics.
Justices do not have a "base." They must ask more of themselves by offering less to their respective constituencies.
Jonathan Turley is the Shapiro professor of public interest law at George Washington Law School.