Monday, February 7, 2011

Politics and the Court

When it comes to pushing the line between law and politics, Justices Antonin Scalia and Clarence Thomas each had a banner month in January.
Justice Scalia, who is sometimes called "the Justice from the Tea Party," met behind closed doors on Capitol Hill to talk about the Constitution with a group of representatives led by Representative Michele Bachmann of the House Tea Party Caucus.
Justice Thomas, confirming his scorn for concern about conflicts of interest and rules designed to help prevent them, acknowledged that he has failed to comply with the law for the past six years by not disclosing his wife's income from conservative groups.
In Supreme Court opinions, they showed how their impatience for goals promoted in conservative politics is infecting their legal actions. They joined in an unusual dissent from a court decision not to take a case about the commerce clause that turned into polemic in favor of limited government. In an important privacy case, NASA v. Nelson, they insisted the court should settle a constitutional issue it didn't need to.
Constitutional law is political. It results from choices about concerns of government that political philosophers ponder, like liberty and property. When the court deals with major issues of social policy, the law it shapes is the most inescapably political.
To buffer justices from the demands of everyday politics, however, they receive tenure for life. The framers of our Constitution envisioned law gaining authority apart from politics. They wanted justices to exercise their judgment independently -- to be free from worrying about upsetting the powerful and certainly not to be cultivating powerful political interests.
A petition by Common Cause to the Justice Department questioned whether Justices Scalia and Thomas are doing the latter. It asked whether the court's ruling a year ago in the Citizens United case, unleashing corporate money into politics, should be set aside because the justices took part in a political gathering of the conservative corporate money-raiser Charles Koch while the case was before the court.
If the answer turns out to be yes, it would be yet more evidence that the court must change its policy -- or rather its nonpolicy -- about recusal.
One possible reform would be to require a justice to explain, in a public statement and in detail, any decision to recuse or not. It would be even better to set up a formal review process. A group of other justices -- serving in rotation or randomly chosen -- could review each decision about recusal and have the power to overrule it.
In the NASA case, the two justices issued opinions on a unanimous ruling that NASA can require background checks for contract workers. Six justices (Justice Elena Kagan was recused) said the court didn't need to decide whether there is a right to informational privacy.
Justices Scalia and Thomas, on the other hand, insisted that the Constitution doesn't protect such a right and the court should settle the issue. The Scalia opinion is a rambling, sarcastic political tirade. The Thomas opinion is short but caustic. This is the sort of thing that gets these justices invited to gatherings like Mr. Koch's.
About Justice Scalia, the legal historian Lucas Powe said, "He is taking political partisanship to levels not seen in over half a century." Justice Thomas is not far behind.
Both seem to have trouble with the notion that our legal system was designed to set law apart from politics precisely because they are so closely tied.

Research on health politics, policy and law detailed by scientists at George Mason University falseAnonymous.

According to a study from the United States, "Policy universes are usually characterized by stability, even when stability represents a suboptimal state. Institutions and processes channel and cajole agents along a policy path, restricting the available solution set."
"Herein, structure is usually to the fore. But what of agency? Do no actors choose? In fact, they do, even in policy environments of incrementalism, even amid hostility. But where agency makes for momentous change is during the punctuations of long policy equilibriums, perfect storms enabling nonincremental movement onto a new policy trajectory, departing from the old path. On both levels, the interaction effects of both structure and agency make a difference-incrementally in the first case, nonincrementally in the second," wrote D. Wilsford and colleagues, George Mason University.
The researchers concluded: "It's not just one damn thing after another, nor does just anything go."
Wilsford and colleagues published the results of their research in the Journal of Health Politics Policy and Law (The Logic of Policy Change: Structure and Agency in Political Life. Journal of Health Politics Policy and Law, 2010;35(4 Sp. Iss.):663-680).
For additional information, contact D. Wilsford, George Mason University, Fairfax, VA 22030, USA.
The publisher of the Journal of Health Politics Policy and Law can be contacted at: Duke University Press, 905 W Main St., Ste. 18-B, Durham, NC 27701, USA.

When bilateral ties are pawned to petty politics

The release of three Thai nationals this week from a Cambodian prison is a good lesson on how bad politics can lead to bad diplomatic relations, with ordinary people paying a high price for those states of affairs.
The three Surin residents -- Sanong Wongcharoen, Rim Phuangphet and Rain Sabdee -- were arrested in mid-August while hunting for food in the forested area along the Thai-Cambodian border, and sentenced to 18 months in jail.
They would not have been in jail for long, for unintentionally crossing the boundary, if relations between the two neighbouring countries were normal. Normally, a local authority could easily make the decision to set them free after asking a few questions about making a wrong turn in the border jungle.
However, it was different this time, as relations between the countries were sour. Cambodian authorities suspected they were Thai spies working on security matters at the border areas and decided to send them to face prosecution in Siem Reap. The three Thais were convicted and jailed for four months before being given royal pardon in commemoration of the 60th anniversary of diplomatic relations between Thailand and Cambodia on Monday.
But for this landmark occasion, perhaps the three villagers would have remained in prison for the full term of the sentence. Thai authorities both at the local level and in Bangkok failed in their attempts to secure their release, as Phnom Penh was in no mood to consider the matter.
Relations with Cambodia have swung between sweet and sour over the past six decades. Fluctuation in the ties mostly depended on circumstances in international politics. The sour relations over the past two years during the Abhisit Vejjajiva government's term in power were mostly driven by bad politics in Thailand.
Abhisit decided to downgrade diplomatic ties with Phnom Penh in October last year when Cambodian Prime Minister Hun Sen appointed former Thai prime minister Thaksin Shinawatra as an economic adviser. Many economic-cooperation and maritime deals were scrapped or suspended.
To Abhisit, only the Thaksin issue really mattered when the fugitive ex-prime minister engaged Cambodia. The Thai government did not seem to react in the same way when fugitive Thaksin was in other countries such as the United Arab Emirates, Russia and Montenegro.
Hun Sen reciprocated the Thai government's policy with the same practice but with a different agenda. He played the Thaksin card to challenge Thai power over the boundary conflict, notably at the Hindu temple of Preah Vihear.
Thaksin is not a very important issue for Hun Sen and he easily dumped him when he realised that Thaksin's chances of returning to power were very slim. Thaksin resigned as Hun Sen's adviser in August.
Abhisit has decided to normalise relations with Cambodia since then and was working to fix every damaged mechanism to move the relations forward.
Unfortunately, bad politics in Thailand is not yet over and seemed to influence Abhisit in pushing bilateral relations with Cambodia.
The government's major supporter, the People's Alliance for Democracy (PAD), continued its demand for Abhisit to scrap the boundary-demarcation pact signed in 2000 during the Democrat-led administration to claim territory adjacent to Preah Vihear.
The boundary negotiation dragged on as the government used delaying tactics to extend the process of Parliament's reading of the Thai-Cambodian Joint Boundary Committee documents, to relieve PAD pressure. The government needed to block Cambodia's Preah Vihear management plan at the World Heritage Committee for another year to show the PAD that it really had the ability to protect territory from Cambodia's claim.
As the PAD has planned to call a huge rally in late January, Abhisit will have to do many other things to show he does not bow to Hun Sen, and such moves would be at the expense of bilateral ties with the neighbouring country.