Justice Kagan has mused that perhaps — just perhaps — the Supreme Court's mild suggestions on ethics should be enforceable, and perhaps inquired into by a "special committee" of seasoned, respected lower-court judges. Naturally, the Mouth of Sauron the WSJ editorial board is vehemently opposed. This particular board includes not one lawyer (or even holder of a law degree who never practiced); not one individual who has ever been part of a corporation's special litigation committee evaluating a lawsuit (or personnel matter) involving conflicts of interest by one or more members of the full board; not one individual who has ever been part of an organization (such as, but far from only, the US military) with an effective, independent Inspector General system. They clearly don't understand that an IG, which is what Justice Kagan describes (albeit not by that name), doesn't make final decisions, but instead makes recommendations of varying strength based upon the facts discerned in particular incidents. But then, given the particular biases of the WSJ and its ownership, "credible, effective government" isn't their highest priority in the first place… and they don't understand "review and recommend" and how that actually reinforces the independence of decisionmakers (nor do they care).
I have reviewed and recommend extreme skepticism regarding Judge Ho's latest extrajudicial attempt to claim victimhood — but that's all it is. Whether his remarks call into question his ability to be unquestionably impartial on matters raising issues that he has ideologically, umm, prejudged is not for me to decide; it is, however, for me to suggest that the stated factual record does not support his conclusion, particularly when it includes all of the data from the lab (let alone evidence gathered in the field).
Oops. I think I've just betrayed my own decisional framework: That when the data either fails to support prevailing decisional frameworks or even outright undermines them, continued unthinking reliance on those prevailing decisional frameworks is unjustified. Is theocratic. Is downright stupid. The scientific method cannot determine all decisions in human affairs; that way lies strictly numeric, non-context-sensitive "solutions" to the Trolley Problem (that neglect what the Trolley Problem does to those not in the frame, particularly the driver whose trolley has been diverted onto that track, not to mention the maintenance guys who know damned well that parts fail and blame themselves when they do). It's a bit of a chicken-and-egg problem: Determining what data matters requires some reference to decisional frameworks, like accepting that it's the feather's nonzero mass and local gravity that determine how quickly it will fall in a vacuum and not its color or species of origin or, well, featherness.
Too much decisional ideology, however, pays a lot more attention to the beautiful plumage of the Norwegian Blue than it does the bird's life status. That pathway leads to self-inflicted wounds based on the bigotry of (in-practice-unreviewable) decisionmakers.1 And that brings us back to Justice Kagan's suggestion that appointed-for-life-on-good-behavior members of the otherwise-unreviewable court should be subject to some review short of the high crimes and misdemeanors that lead to impeachment. The precise mechanism will matter to merits and workability, but the concept is sound, particularly in a context in which judges in general do not recuse enough (let alone clearly).
- We shall leave for another time the self-reinforcing structures that both put unsuitable persons in those roles and exclude the Other (however well suited). Not that I'm also questioning overreliance on three or four law schools as comparable to overreliance on two (now three) military academies or anything like that, or questioning how prior stovepiping of candidates when they're 18 (or 21) can be counterproductive when considering actual decisionmaking in their fifties and sixties. Or how that early judgment of potential presumes a good basis for that judgment and the suitability of those doing the judging to do so. Oh, wait, maybe I am…