Setting aside the fundamental constitutional issue of whether Congress may dictate the administrative workings of the Supreme Court, Sen. Leahy’s (D-VT) ambiguous plan to avoid tie votes on the Supreme Court should be seen as nothing more than naked political opportunism which could, over time, foster greater partisanship on an already divided High Court.
Leahy’s proposal is dangerously seductive in that its goals, on the surface, appear laudable. Leahy is correct in suggesting that more justices should recuse themselves from cases in which they could have a possible conflict of interest, and his proposal would supposedly encourage more recusals. But let’s be honest, the practice of recusal on the Supreme Court is a voluntary endeavor at best. The fantastic notion that the High Court is just nine umpires who simply “call balls and strikes” while remaining faithful to the law over partisan interests is almost laughable. As legal scholar Stuart Taylor, Jr. accurately describes it, the justices do not live in a political vacuum and “interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part.” A sitting justice with a potential or “grey area” conflict would inevitably consider his or her potential “replacement” for that case in making a decision regarding recusal, even if only indirectly or subconsciously. The mere existence of Leahy’s policy, in other words, could potentially distort the High Court’s decision making at a whole new level.
More troubling, we believe that Sen. Leahy’s recent fixation on this issue has more to do with trying to game the Court for short-term advantage (after all, the conundrum of tie votes on the court has existed for more than 200 years). In case you missed it, newly appointed Justice Kagan has identified a dozen cases in which she will be pressured to recuse herself as a result of her service as Solicitor General. With the Court’s fall docket growing, the number of cases heard by a short bench could double. That the left’s new star would have to sit out at the very moment the Obama team is trying to nail down its reworking of the Constitution has the senator reaching in a truly troublesome direction.
Let’s imagine for a moment that the Leahy plan is adopted. Then the question becomes, who will select the replacement justice? Will it be the chief justice? Will it be the justice who chooses to sit out? This part of Leahy’s proposed plan is unclear. On cases so contentious that they are likely to tie, imagine the rancor and rhetoric that would surround the selection process. In effect, this proposal has the potential to set up the replacement justice as a potential “super justice” with the selection being done with the outcome in mind – hardly the blindfolded woman balancing an unbiased scale.
We agree with Leahy that the Supreme Court is in need of some structural changes to be more effective. But if Leahy is seriously concerned about the fundamental inner workings of the Court, he should focus his energy on items such as replacing life tenure with a limited term of service instead of wasting our time and his on pie in the sky ideas, which ostensibly concern items like recusal and tie votes but in reality are nothing more than attempts to create a system of “pinch hitters” that would be replete with opportunity for partisan abuse regardless of the batting order.
Ford O’Connell and Steve Pearson are the co-founders of CivicForumPAC.
