Last night on Rachel Maddow, I discussed the controversy over Supreme Court justices attending political fundraisers. Specifically, Justices Scalia, Thomas, and Alito have been criticized for their participation in such events. Most recently, Justice Samuel Alito was identified by Think Progress at a fundraiser for American Spectator. Alito reportedly said that “it’s not important” that he attends such events. I disagree.
Alito has previously attended Spectator dinner and actually was a headliner in 2008 at a dinner used to raise money for the conservative magazine. He has also previously headlined at the fundraising dinner for the Intercollegiate Studies Institute (ISI). Justice Scalia and Thomas have also been criticized for attending fundraisers organized by conservative oil billionaires David and Charles Koch.
I have long criticized the new model of justices represented by Scalia, Thomas and others. I prefer the model of John Paul Stevens who followed the traditional approach of avoiding public speeches except for a narrow category of law schools and circuit speeches. In a prior column, I criticized Scalia for his past speeches at conservative organizations. I feel the same way about liberal justices like Justice Ginsburg appearing in such politically charged events. However, I am unaware of Ginsburg participating in fundraisers like this one.
The problem of jurists giving politically charged remarks is growing. It is not just justices. In 2004, Judge Guido Calabresi (who I have tremendous respect for as an academic and a judge) was criticized his remarks about George Bush at the American Constitutional Society.
There are no ethical rules preventing justices from participating in ideological events, including seminars. However, the Judicial Code of Conduct does state “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.” It appears that, while these justices did not personally fundraise, they did attend events to raise money for these politically active organizations. In that sense, I view some of these events as crossing the line. It is not, as has been suggested by some, enough for impeachment.
This is the type of violation that is usually resolved by the Chief Justice or Chief Judge in having a stern conversation with the individual. For Alito, one would think he would be loathe to be seen at such events after his poor performance during the Obama State of the Union. Yet, Chief Justice John Roberts not only did not appear to disapprove of this conduct, he appeared to defend it. What is clear is that Roberts is not carrying out his responsibility to protect the integrity of the Court by discouraging such entanglement with political organizations or fundraisers.
What I am most concerned about is the disregard shown in these appearances for the traditional model of justices avoiding the appearance of political advocacy and involvement. In my view, it certainly violates the spirit of the ethical rules and undermines the integrity of the institution.