A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.
(bold added by me) The case (which was decided 5-4) basically said Judges should recuse themselves from cases that involve campaign donors (more details here: http://www.reachm.com/amstreet/archives/2009/06/08/horse-puckey-at-the-high-court/#more-15331). Seems pretty straightforward. But Scalia seems to be saying that because we can't have judicial perfection we shouldn't attempt to prevent judicial corruption. Citing the Talmud as containing "the answers to all earthly questions" sounds overtly theological, but not particularly logical. Which is where I get confused. I usually find Scalia's conservative corporatist views appalling, but extremely logical. He's usually very good at articulating his point of view, even if you disagree with his conclusion. This time his argument strikes me as truly bizarre twist of logic.
Added: Please feel free to compare/contrast with Sonia Sotomayor's "wise Latina" comments.
No comments:
Post a Comment