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