Sometimes, Justice Can Play Politics - NYTimes.com
No, no, and no. The argument "They've done it before", simply doesn't wash. Is that the best a Harvard Law professor can come up with? That doesn't work on five year old children, it can't work on Supreme Court Judges.
With regard to the examples alluded to in this op-ed article, I would say that the quality of the men cited played more than a little role in their ability to honestly and ethically discharge their duties as Supreme Court Judges. I'm sorry, but there is a steep and drastic drop off from the likes of John Marshall and Robert Jackson, when you get to the bottom of the barrel with today's Scalia, Thomas, and the other radical Conservative toadies.
Now, one may say the Court has had it's share of toadies in the past. No question about it. The anti bellum Court was a swamp of pro-slavery neanderthals. But none of this excuses the need for, and the quest for, ethical and honest judges not locked into idealogical boxes.
One last item. In the modern Senate confirmation hearings, when nominees are under oath, they are asked pointed and direct partisan questions from all sorts of highly partisan Senators. While the nominees have learned to avoid answering these questions with any measure of specificity, they all do promise, under oath , to judge cases fairly, to recuse themselves when appropriate, and to respect stare decisis, the precedence of law or settled cases. This Harvard Law professor doesn't seem to think that the testimony of potential Supreme Court judges, under oath, might cause the expectation of non partisan judicial stewardship.
As Sarah Palin might say, WTF?