Congress, Constitutional Law, Courts, Justice, Lawyering, Media, Politics, Society, Supreme Court

Should Scalia and Thomas Be Retroactively Recused From Citizens United?

I just participated in a press conference (with Stanford Professor Deborah Rhode) dealing with Common Cause’s letter (below) asking the Justice Department to look into alleged conflicts of interest related to Justices Scalia and Thomas in the Citizens United case. Common Cause identified extremely serious issues related to the participation of Scalia and Thomas in events organized by Koch Industries CEO Charles Koch as well as Ginny Thomas’ involvement in Liberty Central.

Common Cause isolates the participation of both justices at these Koch events, which are advertised as seeking “to change the balance of power in Congress.” They are mentioned in promotional material with such conservative celebrities as Glenn Beck and Rush Limbaugh.

During the press conference, Common Cause confirmed that, in the separate years that they each attended the program, both listed their expenses as being paid for by the Federalist Society (and made no mention of the Koch brothers). They also detail the failure of Thomas to disclose the financial interests of his wife as well as the benefit that she received from the Citizen United decision.

Ben Smith has written that he believes that the timeline of Common Cause is erroneous on one issue: he says that his research shows that Scalia attended the Koch event shortly before the Citizens United case was filed and Thomas participated shortly after it was filed. That is clearly material to any ethical review and Smith’s research is important to consider. However, it does not address all of the issues raised in the letter or the more general problem with a lack of enforceable ethical rules for justices. Moreover, both justices should have been aware of the highly ideological and political tenor of these programs. I believe attending such meetings is, to use Thomas’ word for critics of the Court, “irresponsible.” How important do you believe the timing is in evaluating the ethical issues raised by the letter?

While the Judicial Code of Conduct, Canon 4 of the Judicial Code of Conduct states in part that a judge should not take part in any activities that “reflect adversely on the judge’s impartiality.” This canon specifically warns that “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.” Canon 5 states that a “judge should not . . . make speeches for a political organization . . . or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate . . . A Judge should not engage in any other political activity.”

“Political organization” includes “a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.”

Justices are subject to the conflict rules contained in 28 U.S.C. §455(a) which requires judges and justices to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(b) includes various categories for recusal, including:

(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material
witness in the proceeding.

The problem is that Congress failed to include an enforcement provision in the law. The result is that it has been viewed at best as aspirational and at worse a nonsensical. Without any enforcement, the conflict controversies are left to the individual justice. This has created a situation that is anathema in a legal system: rules are are left to the accused to resolve with no appeal.

I honestly do not believe that either Thomas or Scalia were influenced by these events. Moreover, one can disagree with their participation and still not believe that the allegations support a recusal — let alone a retroactive recusal. My main interest in today’s conference call is to raise the continuing problem of a lack of binding rules and procedures for such conflict allegations.

Participation in events like the Koch programs show a lack of personal restraint and judgment. The increasing number of these controversies show the need for ethical reforms that bring the Supreme Court in line with the lower courts.

Scalia has made clear that he views these controversies as a problem with the media and critics — not him. In his conflicts memorandum following the dispute over the Cheney duck hunt, Scalia stated “[t]he people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.” For his part, Thomas has denounced criticism of the individual justices as “irresponsible.”

The Common Case letter asks for a finding of a conflict that would lead to the Court considering a request to vacate the decision. That is doubtful. First, civil libertarians have been trying for years to get Attorney General Holder to fulfill our treaty obligations to investigate torture allegations. If he is unwilling to enforce the Geneva Conventions, he is not going to enforce these matters of judicial ethics. Second, the Court itself does a poor job in policing its members or dealing with its past failings. When asked to reconsider United States v. Reynolds when documents proved the Air Force had lied to the Court, its members simply refused.

That frank assessment does not undermine the importance of this letter. The letter highlights the need for greater ethical standards and procedures for justices. These controversies show that they cannot or will not police their own members. These controversies do great damage to the integrity of the Court and the judiciary generally.

Here is the letter: Common Cause letter to DOJ re. Citizens United conflict 1.19.11 final signed

Jonathan Turley

58 thoughts on “Should Scalia and Thomas Be Retroactively Recused From Citizens United?”

  1. Much as I hate to say it, the fact that Scalia’s son was merely associated w/ Olsen in Bush v. Gore isn’t sufficient grounds per the CJC for Scalia’s disqualification. The son must have been a “lawyer in the proceedings.” If he was adequately screened or otherwise not at all involved in the case, no conflict per CJC 3E(1)(d)(ii) and commentary thereto.

    But there are multiple grounds for Thomas, especially, to have been disqualified in Citizens United and whatever develops in the health care debate. Personal/familial economic/other interest, interest gleaned extrajudicially–the list goes on. The flouting of the Code undermines our belief in the impartiality of the administration of justice and that it is being done with abandon at the highest level of the federal judiciary is especially troubling.

    Moreover, Kagan’s involvement as a government lawyer prior to litigation is not grounds for removal per CJC 3E(1)(b)–she is not considered “associated” as she might in a private firm.

    Just studying for the MPRE here.

  2. Antonin Scalia’s influence rests upon his ability to rhetorically appeal to substantive and/or contentious issues while also appealing to the smug self-assurance of ideological partisans. In most highly controversial cases, he presents an excellent partisan view — but is almost totally lacking in self-knowledge or judicial disinterest needed in a good judge. One has to search to find his casuistry [documented in my August 2010 blogs. On the whole his tenditious and ideological distortion of the Constitution’s mixture of idealism, practicality,and imperfection is now a permanent stain on the history of American {U.S.] jurisprudence.

    Lon Clay Hill

  3. I did not know before this discussion that justices were allowed to accept gifts such as travel from third parties such as The Federalist Society is astonishing. How is this really different than permitting lobbying of the justices?

    Scalia says “the people must have confidence in the integrity of the Justices…” Well I do not have confidence in he, Thomas or Alito because of their arrogance and blatant behavior. While I would prefer to not single out these three conservative right wing justices in this regard, it is in fact their behavior that is undermining the reputation and confidence in the court.

    The absence of these same three at the State of the Union address further reinforces the idea that these justices make up a ideological, political cabal inside the highest court of our land, and rightfully undermines the faith in the judiciary.

    However I am grateful they have been acting in such a breathtaking arrogant fashion so we know who they are, that the court is broken beyond our wildest imagination, and that corrections need to be made. How long, if repaired, until the court regains the respect of the citizens, if ever, is an unknown.

  5. I think they should have never been placed on this court to start with….start with that presumption…..W….a legacy to recall…..

  6. I had a relative that was a Supreme Court Justice during Roosevelt’s administrations, Wiley Rutledge,and the stories that I have of those days makes me long for something that could be close to their civil discourse. These fellows are certainly cut from a different cloth.

  8. “the invited guests? Two of my favorite people–Jamie Dimon and Lloyd Blankfein”

    Elaine,
    Obama makes me sad, but then it was naivete’ that invested him with beliefs that he obviously lacks.

  9. With Justices like Scalia and Thomas, along with Roberts and Alito, I shudder to think what this country will be like in 10 – 20 years. How long before they rule that non-corporate “citizens” are really just serfs?

    I applaude Common Causes efforts. They may not prevail but it very well may have caused many to finally open their eyes as to the direction of SCOTUS.

  10. Not that my kingdom is not offered to all as as reward if the faitful, they have chosen a different master to follow. We can’t all be as wonderful and species as one chooses. They have free will.

  12. Raff/Buddha,
    Thanks for the confirmation. That fact and the total lack of outrage that followed it was for me the beginning of a true understanding of how little our “Democracy/Republic” is a real entity, rather than the Potemkin Village hiding our real masters, the wealthy and the corporations.

  13. Also, very impressive letter by Common Cause. I think someone used Orwell’s “Politics and the English Language” as a how-to guide.

  14. Wow. And to think that Scalia had the chutzpah to claim his vote in Citizens United was based on textualism and originalism. Little did I know that Charles Koch had sneakily paid him off by giving money to the Federalist Society which in turn paid for his travel expenses when he spoke at the FedSoc lawyers convention. Figures.

    Koch to Scalia: You wanna keep those fancy hotel rooms on the road, don’t you? Better be a good boy and vote the way I want you to.

    The world’s gone to hell . . .

  15. I think we can all agree that there is no way in this world that either of these two will be removed from the bench for any reason. They could be filmed doing cocaine and underage hookers with people who have cases before the court and it would play out:
    RESPONSIBLE PEOPLE: This is unacceptable and these two must be impeached!
    DEMOCRATS: Lets start hearings of impeachment.
    REPUBLICANS: POLITICS! DIRTY LIBERAL POLITICAL TRICK! THE DEATH OF AMERICA!
    FAUX NEWS: WHAT KIND OF ANTI-AMERICAN SCUM GOES AFTER SITTING USSC JUSTICES? THIS IS AN UNPRECEDENTED ATTACK ON THE JUDICIARY.
    DC PUNDITS: Why all this partisanship? Lets find a middle way, after all the cocktail parties I have been at with these two fine gentleman I’m sure this little mistake will not cloud their judgment.
    MSM: Oh look, shiny, Sarah Palin, sparkly, missing white women, balloon boy . . .huh, wha?
    HEADLINE: Today in a contentious session Congress narrowly avoided impeaching two USSC justices alone a party-line vote.

  17. pete,

    “just tell thomas that anita hill is waiting for him in a closet. when he goes in lock the door after him.”

    Normally I’m not in favor of using a baited field, but in this case I’ll just have to say that’s a fine idea.

  18. Citizens United should be vacated because of Scalia
    & Thomas bias & Alito / Roberts perjury @ their confirm. Hearings. Stare Decisis my ass!

  19. impeach scalia

    just tell thomas that anita hill is waiting for him in a closet. when he goes in lock the door after him.

  20. Mike S./raff,

    That is very much the truth about Scalia’s son in re Bush v. Gore.

    Scalia didn’t just turn into a fascist scumbag over night.

    He was one already when Reagan appointed him.

Comments are closed.