U.S. House Minority Leader Nancy Pelosi is angry at Supreme Court Justice Antonin Scalia.
She’s mad at remarks that Scalia made during oral arguments involving an affirmative case involving the University of Texas. Scalia contended that African-American students might not do as well academically at UT as they would in “slower-track schools.” The statement has drawn much criticism against the outspoken justice.
Pelosi thinks Scalia now must recuse himself from future discrimination cases because of his bias.
Let’s hold on, Mme. Minority Leader.
Don’t misunderstand me. I dislike Scalia’s world view as much as the next progressive. But calling for him to recuse himself from these cases goes way too far. According to Politico: “It’s so disappointing to hear that statement coming from a justice of the Supreme Court. It clearly shows a bias,” Pelosi said. “I think that the justice should recuse himself from any case that relates to discrimination in education, in voting, and I’m sorry that he made that comment.”
Consider something from our recent past.
The highest court in the land once included two justices who were philosophically opposed to capital punishment. The late Justices Thurgood Marshall and William Brennan voted automatically in favor of capital defendants’ death sentence appeals. If a death row inmate’s case made it to the Supreme Court, he or she could depend on at least two votes in favor of the appeal.
In fact, Justice Marshall was particularly blunt about it. He said repeatedly that he opposed capital punishment, yet he took part in those appeals.
Did he ever recuse himself? Did pro-death penalty forces make the case that he should? No to the first; and unlikely to the second.
Federal judges — and includes the nine individuals who sit on the highest court — all have lifetime jobs. That’s how the Constitution set it up. Presidents appoint then; the Senate confirms them and then they are free to vote their conscience.
Scalia need not recuse himself. He is free — as he has been since President Reagan appointed him to the court in 1986 — to speak his mind. He has done so with remarkable candor — and even occasionally with some callousness — ever since.