C-SPAN aired (and its website has a link to) an interesting debate between Justices Breyer and Scalia respecting the role of international legal thought on Supreme Court jurisprudence. Justice Breyer believes that it has something to add to the debate since other countries have to deal with many of the same problems as we do, while Justice Scalia both finds it troubling on originalist grounds (and we generally are interpreting American law) and because it is too easily abused by those who want to selectively use it to advance a certain point of view.
Both sides have something to add to the debate, especially since at times Justice Breyer appears to support what "works best" vs. what the Constitution in particular says. OTOH, the jurisprudence of other nations have something to add to our own, including in such areas as what is "cruel and unusual" in current times.
Justice Breyer has also received some criticism for not recusing himself in the recent federal sentencing guidelines because of his past role in the sentencing commission. It is unclear what would have occurred if he recused himself, which Breyer did not after checking with an ethics expert, but there might have been a 4-4 deadlock on one major issue if everything staid the same. Justice Breyer clearly has a personal connection to the old law and was strongly opposed to any basic change in how it was implemented, and this troubled some legal analysts.
Nonetheless, it seems to me a bit silly to in turn expect him to recuse himself because many federal judges have a political past that is touched upon once they get on the bench. For instance, Justice Black was a member of Congress before FDR appointed him to the bench, but did not recuse himself from the various legislation that he was involved in once they reached the Supreme Court. Chief Justice Taft was President less than ten years before being appointed -- was he asked to recuse himself whenever something involving his presidency came in front of the Court?
Other examples can be raised, including Justice Ginsburg and her past work as a woman's right advocate. And, this is not a matter of ongoing involvement or the like. On first blush, Justice Breyer made the right choice.
Justice Thomas is not free from controversy or connection with conservative voices. For instance, he presided over Rush Limbaugh's most recent wedding. Nonetheless, it is not usually the case that strong liberal, moderate progressive, and conservative voices join together to oppose something that Justice Thomas did. The current blow-up involves his involvement with the swearing-in ceremony of a conservative Southern judge, who not only is closely aligned with Judge Roy Moore (of Ten Commandments fame), but also some groups a bit too closely connected to white supremacy groups.
The issue first caught some people's eyes because Justice Thomas' statements respecting how the oath is ultimately to God -- which is after all what one does when one "swears." The concern, underlined by Atrios, is that some public officials think God's law trumps man's law in certain situations. Fair enough, but the distasteful company Justice Thomas -- who took a break from his no involvement in oral argument rule during a cross burning case -- is perhaps more notable.
Oh, and CJ Rehnquist made an appearance to swear in President Bush for his second term -- would not it be fitting if he [Rehnquist, though Bush would work just as well] submits his resignation letter tomorrow? You know, sort of how the offensive (in both respects of the word) coordinator of the NY (choke) Jets "resigned" and a replacement was announced a few hours later?