Chocolate Eclairs

Well, it looks like my Congressional delegation, at best, are uninformed and, at worst, have chocolate eclairs as important components of their anatomy. 

This is the text that I sent to all of my Congressional delegation. 

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According to United States Code, Title 28, Section 455 (Disqualification of Justice, Judge, or Magistrate), “(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. And, (b) He shall also disqualify himself in the following circumstances: …(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;” 

I would like to know why impeachment proceedings against Justice Elena Kagan were not initiated in  Congress on Monday, 26 March 2012 when she failed to recuse herself from the bench during arguments related to the Affordable Care Act case which came before the Supreme Court this week.  

Even in the unlikely event that the Administration’s argument, that Justice Kagan was physically insulated from all issues associated with passage of the Affordable Care Act that her subordinates were working on, is not disingenuous, her sitting on the case certainly smacks of impropriety and serves no purpose beyond increasing the disrespect for government that is currently held by the majority of Americans. 

I am getting tired of my Congress demonstrating all the backbone of Theodore Roosevelt’s famous chocolate eclairs. What are you doing to ensure that Justice Kagan is impeached and removed from office? 

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One reply to my message was basically a brush-off and two others were founded on an error at best, and gross ignorance at worst. The best of the erroneous reply paragraphs is listed next without the political pap that surrounded it. 

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As a practical matter, however, the decision on whether or not a justice recuses him or herself from a case lies with the justice.  This is why it’s so important for the Senate to give every consideration to who it confirms for a seat on our nation’s highest court.

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My reply to this is as follows. 

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Thank you for the thoughtful reply. However, I’m afraid that the recusal decision of a Justice is NOT the final say.

The Supreme Court is certainly authorized to set its own rules of behavior AS LONG AS THEY COMPLY WITH APPLICABLE LAW.

Article I, Section 8 of the US Constitution states, “The Congress shall have Power… To make Rules for the Government and Regulation of the land and naval Forces;” Exercise of this power has enabled the Supreme Court to grow from six Justices to nine over the past two centuries, to name only one way in which this power has been directly exercised by Congress over the Supreme Court itself.

Another exercise of this power is found in United States Code, Title 28, Section 455 (Disqualification of Justice, Judge, or Magistrate), “(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might REASONABLY be questioned. And, (b) He shall also disqualify himself in the following circumstances: …(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;” (emphasis mine)

Subsection (a) is written to rely on the personal honor and recognizance of the individual judges which is as far as you took the question. However, if we take it further, we find that a judge whose honor, impartiality, integrity and performance cannot be besmirched is certainly demonstrating good behavior in the fulfillment of his or her office as Article III, Section 1 of the Constitution provides, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”. Failure to exercise impartiality and/or to ignore the rules that Congress has established as the law of the land is certainly not “good Behaviour,” especially when demonstrated by one who has been empowered to judge both “Law and Fact” in cases before the Court. It would seem to me that the highest standards of integrity and impartiality must be demonstrated by those who actually judge the law—even higher than that which must be demonstrated by those who merely write the law and those who merely execute the law.

Article I, Section 3 of the Constitution, provides a means with which to deal with judges who do not exercise “good Behaviour,” i.e. “The Senate shall have the sole Power to try all Impeachments.”

If Congress has no power to enforce those laws that affect the Supreme Court, why waste any time at all crafting them? If Congress cannot impeach Justices, then why does the Constitution not expressly state that they are immune from impeachment? After all, they most certainly are part of the government as stated in Article I, Section 8 of the US Constitution (see above).

For our system of government to work, every branch of government must be jealous of their powers and prerogatives in order to ensure that no single branch of government manages to seize enough power to enable it to run roughshod over the other two AND over the People from whom those powers derive!

So, my question still stands, what are you doing to impeach Justice Elena Kagan for demonstrating unreasonable partiality, at minimum, and high crimes and misdemeanors, at worse?

I guess that gives rise to something of a philosophical question. Please accept my apology for not keeping this missive laser-focused on the Kagan question… Why is it that Congress has traditionally seemed to lack backbone in the face of high crimes and misdemeanors? And this does not seem to be a recent development either. To the best of my knowledge, Andrew Jackson committed the most egregious example of high crimes and misdemeanors in American history when he ignored the Supreme Court and forced the Cherokee to travel the Trail of Tears to Oklahoma.

How far and how often does a judge or a member of the Executive Branch get to push the Constitution and/or the law out of shape before Congress will act? Why aren’t members of the current Administration facing impeachment for failing to reply promptly and fully to numerous Congressional subpoenas? Why wasn’t the President immediately impeached for exceeding his lawful authority as Commander in Chief in Libya? Why isn’t Attorney General Holder being impeached for lying to Congress about the Fast and Furious fiasco?

When the founders created the Constitution, Congress was supposed to be the first among equals among the branches. This does not seem to be the case today. If anything, Congress appears to have willingly given up many of its powers and responsibilities to the Executive (at least those that have not been flat-out usurped). Nobody in government seems to be interested in adhering to the Constitution except when it supports their personal agenda. Consequently, we are rapidly devolving away from the rule of law and into a state of rule by fiat camouflaged with a fig-leaf of federalism. If we stay on this road the United States of America shall soon be known as the Argentina of the North!

In your opinion, is this state of affairs correctable with some changes to the Constitution, or is it a terminal illness based in the burgeoning venality of our culture?