Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

Over the years we have heard the stories about Supreme Court justices coming under fire for attending political rallies and symposiums and for taking gifts from political organizations.  Abe Fortas and his subsequent resignation from the Supreme Court is one instance that comes to mind.  More recently, of course,  Justice Clarence Thomas’ exploits come to mind.  “Justice Clarence Thomas is an ethics problem in a black robe. Just eight months after ThinkProgress broke the story of Thomas’ attendance at a Koch-sponsored political fundraiser, we learn that Thomas doesn’t just do unethical favors for wealthy right-wing donors — they also do expensive favors for him.

Leading conservative donor Harlan Crow, whose company often litigates in federal court, provided $500,000 to allow Thomas’s wife to start a Tea Party group and he once gave Thomas a $19,000 Bible that belonged to Frederick Douglass. The American Enterprise Institute, a conservative think tank which frequently files briefs in Thomas’ Court, also gave Thomas a $15,000 gift.”  Think Progress

What we may have missed in those earlier discussions is how important the lower courts and appeals court judges are in enforcing corporate or political legislation and policies.  What would you say if corporations and partisan foundations or think tanks and oil companies were deeply involved in making sure the judges know who their real “friends” are?

“According to a recent investigation by the Center for Public Integrity, “conservative foundations, multinational oil companies and a prescription drug maker were the most frequent sponsors of more than 100 expense-paid educational seminars attended by federal judges over a 4 1/2-year period.” About 185 federal judges participated in these “educational” events which were sponsored by multinational corporations such as ExxonMobil, Pfizer and BP.

These seminars are clearly designed to encourage judicial principles that would benefit the sponsors. According to the investigators, Justice Carl A. Barbier happens to have attended at least one of these conferences in 2009, which was sponsored by the American Petroleum Institute, Shell Oil Company, and Exxon Mobil Corporation. Barbier has since dismissed a wrongful death case against Exxon and now finds himself presiding over the BP Deepwater Horizon cases. In an ongoing trial, it is up to him to determine whether or not BP is grossly negligent and liable for tens of billions of dollars in Clean Water Act damages.”  Common Dreams

Do we want any of our Judges or Justices attending corporate sponsored “seminars”?  Is it a stretch to think that Justice can be bought so easily and so cheaply?  As the above Common Dreams article pointed out, two Pennsylvania judges are already spending time in jail for accepting bribes from the private prison industry.  “Sponsoring seminars and conferences are not the only ways that profiteers have found a way to interact with the judiciary. Pennsylvania Judges Mark Ciavarilla Jr. and Michael Conahan are respectively serving 28 year and 18 year prison sentences after being accused of accepting millions of dollars from the private prison industry and subsequently handing out harsh juvenile sentences to fill their cells.”  Common Dreams

When we allow any of our governmental branches to be bought and sold by corporate entities and political foundations, do any non corporate litigants stand a chance in court against some of these corporate “sponsors”?  Was it just a coincidence that Justice Barbier dismissed the wrongful death case against Exxon who sponsored one of the “seminars” that he attended?  Should a Justice recuse himself/herself from any case where the litigant is or has been a sponsor at a seminar or symposium attended by the Justice?

Retired United States Supreme Court Justice Sandra Day O’Connor recently went on record that she thinks all judges should be appointed and not elected in order to reduce corporate or party influence on the decision-making duties of the judge.  “Illinois and other states that continue to have judicial elections are hurting the impartiality of judges, according to the first woman to serve on the U.S. Supreme Court.

Retired Justice Sandra Day O’Connor told the packed Hammerschmidt Chapel at Elmhurst College that judges running for office makes them politicians, beholden to campaign contributions and political parties. She said even the most scrupulous of judges loses credibility in the public’s eye when he or she needs to be a fundraiser and candidate, as well as a judge.

“Studies have shown that judges are influenced by campaign contributions,” O’Connor said Thursday during the college’s annual Rudolph G. Schade Lecture on History, Ethics and the Law.”  Sun-Times 

While I agree with Justice O’Connor that electing judges can be problematic, I am not convinced that appointing judges reduces the political and donor influence possibilities when compared to electing them.  However, anything that can be done to reduce the ability of corporations and wealthy foundations from “buying” a judge or Justice is a good thing.

I submit that the same thing that is corrupting our politics, thanks in large part to the Citizens United decision,  is possibly corrupting our judiciary.  What is that corrupting influence?  MONEY.  Justice O’Connor touched upon when she stated that a judge’s impartiality is impacted when a donor is involved.  If she is correct, wouldn’t it make sense that Justice Thomas or Justice Barbier, or any judge at any level, including the Supreme Court,  be required to at least recuse themselves from proceedings that may be related in any way to one of their corporate or campaign sponsors or donors?

It sound like a no brainer to me?  Otherwise, how can individual citizens litigating against large corporate entities feel comfortable that the Judge or Justice that they are standing in front of is going to be impartial in their respective case?  What do you think?