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Group Sees Possible Conflicts by Scalia, Thomas

Common Cause is asking the Justice Department to investigate whether Supreme Court Justices Antonin Scalia and Clarence Thomas should have disqualified themselves from participating in the landmark Citizens United case.

Common Cause asked the Justice Department Wednesday to investigate whether the  justices had conflicts of interest that warranted their disqualification, and if it concludes a conflict existed, seek to to have the campaign finance ruling vacated, according to a New York Times article.

In a letter to Attorney General Eric Holder, Common Cause wrote:

“It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision.  With respect to Justice Thomas, there may also be an undisclosed financial conflict of interest due to his wife’s role as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections.”

The letter alluded to news reports last fall “that Justices Scalia and Thomas have attended one or more invitation-only retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the Citizens United decision.” You can learn more about the events by clicking here for an earlier Gavel Grab post.

The letter also discussed a period when Virginia “Ginny” Thomas served as CEO of Liberty Central (see Gavel Grab for background). Read more

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Nan Aron: 'Question of Integrity' Hangs Over Supreme Court

The Alliance for Justice (AFJ) weighs in on continuing calls to implement a Code of Conduct to the U.S. Supreme Court in a Huffington Post article. Introducing a new video, AFJ President Nan Aron says the public’s confidence in the Court is greatly reduced by the absence of an ethics code that applies to all other federal judges.

Aron argues that the general public must perceive judges as impartial arbiters of the law, rather than partisan agenda-setters, in order for the judiciary to function effectively:

“Everyone who walks into a courtroom needs to know they will get a fair hearing before a judge who has not pre-judged their case as part of a political agenda. …As a country rooted in the rule of law, we simply can’t afford to have Supreme Court justices who feel unconstrained by the same formal ethical standards that bind all other federal judges. The code prohibits participation in political activities. It bans serving as the keynoter at fundraising events, no matter how seemingly benign. It instructs judges not to do anything that creates even the ‘appearance of impropriety.’ ”

A new Alliance for Justice short film, A Question of Integrity: Politics, Ethics, and the Supreme Court,


provides examples of questionable ethical conduct by the Justices. Among these are Justice Thomas’ and Scalia’s trips to a Federalist Society conference hosted by the Koch brothers and keynote speeches by Justice Alito at American Spectator magazine and Intercollegiate Studies Institute fundraisers.

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Applying History's Lens to Supreme Ethics

From judicial ethics to ideological pairings, the work and conduct of the Supreme Court get a lot of attention in a smorgasboard of news media articles and commentary following the end of the court’s term.

In one of the most intriguing pieces, Jeff Shesol brings a historic lens to simmering controversy over some of the extrajudicial activity of the court, in a New York Times commentary entitled “Should Justices Keep Their Opinions to Themselves?” He is author of “Supreme Power: Franklin Roosevelt vs. The Supreme Court.”

“Surely there is nothing new or unnatural about justices holding political views and seeking the company of others who share them,” Shesol writes. At the same time, “there are few, if any, precedents” for Justice Clarence Thomas’s and Justice Antonin Scalia’s involvement with fund-raising efforts by the conservative Koch brothers, he says.  Shesol then zeroes in on public trust in the courts:

“The public’s faith in the rule of law depends, to no small degree, on the idea that judges try, as best they can, to maintain a judicial temperament — that they keep a certain distance from public and even private events that appear, in the truest sense of the word, partisan, and that they maintain an open mind.”

“It’s not that we need justices without political impulses; we need justices who can keep them in check.”

Shesol predicts that “proposals to curb the court,” and dealing with recusal or ethics codes, won’t happen. He explains: “As Justice Harlan Fiske Stone wrote in the 1930s, sternly rebuking some of his brethren, ‘the only check upon our own exercise of power is our own sense of self-restraint.’” Read more

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In Plea for Supreme Standards, Caperton Cited

In arguing for new ethics standards for Supreme Court justices, an activist cites the court’s landmark Caperton v. Massey ruling from 2009.

Nan Aron, president of the Alliance for Justice, writes in a Washington Post op-ed:

“The Supreme Court, whose members are shielded with lifetime appointments, is the only entity in our government that is not subject to mandatory ethics requirements. That is why reformers are calling for the Code of Conduct that governs all other federal judges to apply to the justices. Surely it makes no sense to have lesser standards for the highest court than those in place for lower courts.”

Aron discusses questions raised about the appearance by Justices Antonin Scalia and Clarence Thomas at “political strategy conferences hosted by the conservative Koch brothers” (see Gavel Grab for background). If the judicial Code of Conduct were applied to Supreme Court justices, she says, only a small number of events would be placed off-limits for justices, and the impact on the court’s integrity would be “huge.”

Aron concludes by citing Caperton:

“Some suspect this is an effort by progressives to tweak justices they don’t like. But the Supreme Court itself effectively answered that charge in 2009. In Caperton v. A.T. Massey Coal Co., a case that dealt with a West Virginia Supreme Court justice who ruled in favor of a corporation that had made large contributions to his campaign, the high court said that ‘codes of conduct serve to maintain the integrity of the judiciary and the rule of law.’”

“That indisputable principle ought to be applied to the same court that wrote those words.” Read more

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Ethics Attack on High Court Judges 'Dangerous'?

Critics have gone far in recent months to challenge the ethics and impartiality of several conservative Supreme Court justices. Now a political journal tries to give context to the charges.

The attacks on Justices Clarence Thomas, Antonin Scalia and to a lesser extent Samuel Alito “represent the most concerted attack on a bloc of justices since the early 1970s, when conservatives waged a long campaign against the liberal justices of the Warren court, most notably Justices William O. Douglas and Abe Fortas,” a Politico article reports.

Across the political spectrum there are legal scholars and court watchers who dismiss the critics’ campaign “as a stretch, at best, and dangerous, at worst,” the article says.

Readers of Gavel Grab have seen reports about numerous lines of attack. They include the watchdog group Common Cause questioning whether Justices Thomas and Scalia should have stepped aside from hearing the Citizens United case, to questions raised about the pair’s reported attendance at one or more retreats sponsored by Koch Industries. It’s a major player in conservative politics and a beneficiary of Citizens United. Read more

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Recusal Issue at Supreme Court is Highlighted

The watchdog group Common Cause grabbed plenty of media coverage for questioning whether Justices Antonin Scalia and Clarence Thomas should have stepped aside in voting on the Supreme Court’s landmark Citizens United case.

Common Cause trained a spotlight on a topic that doesn’t get a lot of media attention — recusal by Supreme Court justices — while it also drew mixed reviews for its petition to the U.S. Justice Department.

Common Cause seeks (see Gavel Grab) an investigation of whether a conflict had existed for either justice, and if it did, for an effort to vacate the 5-4 ruling of one year ago. The group said it appeared the justices had participated in political strategy sessions with corporate leaders “whose political aims were advanced by the decision.”

Election law scholar Rick Hasen was skeptical the appeal to the Department of Justice would succeed, Politico reported. “Justice Scalia has refused to recuse himself from cases involving a far closer relationship,” Hasen said. He noted the lack of  evidence that the justices participated in political strategy meetings. Hasen added:

“I am a big critic of the Citizens United case. I would love to see it reversed.

“But this approach seems both unlikely to yield the desired result of seeing the case overturned and appears to be an unwarranted attack on the ethics of the Justices.”

Common Cause held a telephone conference call with reporters that was joined by Stanford Law School professor Deborah Rhode and George Washington University Law School professor Jonathan Turley. The Common Cause petition highlights a lack of ethics enforcement at the Supreme Court, they said, according to a Blog of Legal Times post.

“The rules are left to the accused,” Turley said. “They become their own judges.”

Turley called the charges leveled by Common Cause “disturbing.” He also said, “At a minimum, the Common Cause letter should raise questions about what we need to do, so there isn’t this vacuum at the Supreme Court when it comes to judicial ethics,” according to a Christian Science Monitor article. Read more

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Alito: Role at Conservative Fundraiser 'Not Important'

Supreme Court Justice Samuel Alito was among attendees toasting the keynote speaker at an annual fundraising event held by the conservative American Spectator magazine, according to a liberal blog account.

The Think Progress blog said the event featured such prominent Republicans as Republican National Committee chairman Michael Steele. Justice Alito was approached as he entered the event. He was asked why it was appropriate for a justice to attend such a political fundraiser with the national GOP chairman, and he responded, according to the blog, “It’s not important that I’m here.”

Last month, the same blog wrote about two other justices, Clarence Thomas and Antonin Scalia, having attended seminars sponsored by Koch Industries, a manufacturing conglomerate that bankrolls conservative causes. You can learn more about the reports, and about questions of ethics that have been raised, from Gavel Grab.

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Justices' (and Spousal) Ethics, Decorum Eyed

Published reports that two Supreme Court justices attended seminars sponsored by Koch Industries, a manufacturing conglomerate that bankrolls conservative causes, have stirred up questions about judicial ethics, according to a Huffington Post article.

An article in the liberal Think Progress blog reported extensively on an internal memo about a Koch gathering in June, attended by “industry titans” and Republican operatives to plan the 2010 election and more. The article noted, “Past Koch meetings have included various Republican lawmakers…and Supreme Court Justices Clarence Thomas and Antonin Scalia as speakers.”

“It is intriguing because the Koch brothers are so politically active and identify with a point of view,” Huffington Post quoted  Stephen Gillers, who teaches law at New York University, as saying.

“I know I would be curious to know exactly what forums the Justices went to. Obviously they could not go to a strategy session about how to elect more Republicans. On the other hand if it was a forum on the meaning of the First Amendment and it didn’t involve strategy or fundraising a Justice could appear.”

The Think Progress blog followed up on its initial report with another post that was headlined, “What Role Have Scalia and Thomas Played in the Koch Money Machine?” The justices’ attendance also was noted near the end of a New York Times article entitled, “Secretive Republican Donors are Planning Ahead.”

Meanwhile reports (click for New York Times here, Washington Post here) that Ginni Thomas, the wife of Justice Thomas, left a telephone message seeking an apology from Anita Hill, the judge’s sexual-harassment accuser 19 years ago, have sparked a flurry of debate. Read more

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