By Brent Budowsky - 03/13/13 11:08 PM EDT
Nothing is more important to “equal justice under law” than an unelected, life-tenured judiciary respecting the fact and appearance of impartiality in a system of separation of powers, checks and balances, and one person, one vote. With important electoral decisions involving repeat offenders against fair elections in Alabama and Texas pending before the Supreme Court, the court stands on the brink of a historic usurpation of power against the elected branches, while one justice, Antonin Scalia, conducts himself in a manner appropriate to a political speaker at a conservative meeting but not an impartial adjudicator of law.
In the 2010 Citizens United case, the Supreme Court virtually legalized the buying of elections by wealthy factions that the Founding Fathers warned us against in the Federalist Papers. Two justices voting with the majority — Scalia and Justice Clarence Thomas — engaged in discussions with interested conservative parties that, regardless of the topic of discussion, raise profound questions among large numbers of Americans about their impartiality.
The same Supreme Court majority could now overturn crucial sections of the Voting Rights Act, despite the fact that the law was enacted with overwhelming support from elected representatives of both parties in both houses of Congress and was signed or supported by every president from both parties, without exception, since it became law.
It would be a stunning legacy of the Roberts court if at one extreme it sanctions the buying of elections by interested factions using unlimited money, acting contemptuous of the elected legislative and executive branches, while at the other extreme it sanctions discrimination against individual voters, again acting contemptuous of the elected legislative and executive branches, in another “political decision” achieved through another “party line” vote of justices.
It would be constitutionally absurd for the high court to hold that corporations have a protected right to buy elections while individuals lack a protected right to vote in them.
This contempt for “one person, one vote” is echoed in Senate filibusters aimed at “packing the court” by obstructing confirmation of judicial nominees.
President Obama should offer nominees to fill ALL judicial vacancies by May 1. If filibustering senators obstruct confirmation, Senate rules should be changed. The decision of the D.C. Circuit Court of Appeals overturning presidential recess appointments should be ignored as precedent until vacancies are filled.
American justice is dishonored by the party-line votes of conservative justices, repeated appearances by conservative justices before interested conservative groups and usurpation of power by the unelected branch against elected branches.
Scalia’s conduct destroys any appearance of impartiality or judicial temperament. He makes comments offensive to gays while gay rights are pending before the court. He makes racially insensitive comments about voting rights while voting rights are pending. He makes constitutionally ignorant comments about legislative intent.
Scalia has a right to believe voting rights are a “perpetuation of racial entitlement” for blacks and Hispanics, but should promote this repellent and biased view on conservative talk radio, not the court.
Scalia has a right to show contempt for elected legislators with his legally ludicrous notion that overwhelming bipartisan legislative support merits ignoring legislative intent. He should offer this view as a political candidate, not as an unelected, life-tenured jurist.
Scalia has a right to make presentations before conservative groups and to have his name used to raise money for conservative causes. He should do so working for a political super-PAC, not as a jurist deciding cases in favor of views held by groups to whom he grants preferential status with his presence.
Scalia should recuse himself from cases in which his appearance of impartiality is fatally compromised or he should resign from the court.
Budowsky was an aide to former Sen. Lloyd Bentsen and Bill Alexander, then chief deputy majority whip of the House. He holds an LL.M. degree in international financial law from the London School of Economics. He can be read on The Hill’s Pundits Blog and reached at firstname.lastname@example.org.