It’s All About the Judges


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?


43 thoughts on “It’s All About the Judges”

  1. raff, Rule #1 NEVER RUN. That triggers the bears sense that you are prey. Loud noises, back away. But, I hear what you’re saying. Every cell in your body says to “RUN!” The old joke is if you’re w/ a group of people. You don’t need to out run the bear, just the slowest member of your group.

  2. Bron,
    If you will read what I wrote, I was asking that the Supremes follow the same ethical standards as other judges to recuse themselves. I was not stating that Thomas was doing anything unethical under Supreme Court rules, because they basically don’t have any to follow. However, it would be ethical to recuse himself when he is taking and receiving gifts from litigants. I do not try to guess here Bron. Show us the evidence that Liberal judges are taking money and gifts from litigants at the Supreme Court level. I wasn’t making this a political issue because I gave examples of two Supremes, nominated by a Republican and one nominated by a Democratic President. It was you who are trying to make it a partisan issue. I merely responded to your unfounded statements.

  3. The ‘extra curricular’ activities of both Justices Clarence Thomas and Anthony Scalia have been knows to many of us. There isn’t a person on that court who is impartial. The POTUS nominates them for one and only reason: to help ensure that his (there hasn’t been a female president last time I checked) friends and party will rule a certain way on certain issues. There is no such thing as a ‘pure’ person, or is there? Feel free to enlighten me.

  4. Impeach the miserable Thomas. He does not look at all happy to be there.

  5. raff, You’re absolutely correct, but that was when we realized they were present. The cubs looked toward us but the mom did not. We just backed away SLOWLY and they sauntered up a hill.

  6. One of the most important programs on the politicising of the judiciary was the Geraldo program on the FBIs bugging of the conference room and phones of the Justices…the program was an expose of the work done by Alexander Charns in his book…Cloak and Gavel….(google charns)…this writer filed suit on this same subject… w.voinche v. FBI, 940 F.Supp. 323(DDC 1996)….forcing the fBI to release about 200 pages on this subject and finally filing a writ of certiori on this subject with the Supreme Court…this subject is bigger than watergate and we wonder why establishment and punditory journalist are not even interested in this subject…we are supposed to have an executive, legislative, and judicial form of government that gives us a balance of power between the various branches, But this seems to have been pre-empted by an unelected group of orwellian bureaucrats at the FBI that is intimidating the other branches of government….(the tail wagging the dog)and acting as the invisible government…as a side bar in another suit this plaintiff served robert mueller with interrogatories about investigation and harrassment of this plaintiff and he lied about this investigation when the fbi had admitted this in another lawsuit….this has been going on since the bush administration
    but pundits dont want to apply the same standard to the bush administration as to the obama administration

  7. It was Lewis Powell, before he became a Supreme Court justice, who emphasized the importance of gaining control of the judiciary in order to solidify corporatist policies in American legal doctrine. Control of the Congress and Executive is fleeting and too unpredictable, therefore the Judiciary was the more effective branch for establishing a hegemony and required a more focused effort to recruit and seat judges more favorable to right’s agenda.

  8. rafflaw:

    the supreme court does not hold itself to the same ethical standards according to one of your links. So Thomas was doing nothing unethical.

    The idea that liberal judges have not taken money or some other form of percs from individuals or organizations is quite funny. One doesnt need to do research to know that has occurred.

    Honestly rafflaw do you really believe that? If someone told me that republican judges or libertarian judges had never taken anything, I would find that as improbable as well. I am sure there are many ethical judges on each side but I am also sure there are many who are not.

  9. Justice Thomas is referred to in our legal circle as Uncle Clarence. It is an allusion to Uncle Tom but is attuned to his new public attempt to put on a fatherly, kind and caring profile of himself. The Confederate Flag thing on the wall was his way to say that he was not some stereotyped Yale guy who was keen on pushing an affirmative action agenda out in the Show Me STate.

  10. When Clarence Thomas was an assistant attorney general for John Danforth in Jefferson City, MO he had a Confederate Flag on the wall behind his desk in his office. If one asked what was up with that you would be told that Clarence is Unreconstructed. What that term means in former slave states like Missoura is that the person rejects the 14th Amendment and any notion that the due process clause and liberty rights are protected against s state infringement.

  11. Bron,
    Please provide us with the evidence that liberal organizations or companies sponsored judicial seminars for liberal judges. I am unaware of any and I try not to guess. I do not remember any of the Justices nominated by Democrats receiving gifts from litigants. Finally, any judge or Justice who receives a gift or money or benefits from a corporation and/or think tank, should recuse himself/herself. Unfortunately, Justice Thomas, just to name one, refuses to hold himself to any judicial ethics.
    250 yards from a momma grizzly is too close for comfort!

  12. Bron, You are an uber carnivore. The elk and bison are so much healthier than beef. One of the many things I love about the great western states are the Indians. They are some of the kindest, gentle, people I’ve ever met.

  13. Raft,

    You bring up great points….. And any party which gives a gift to a judge of any kind including a US Sct justice anything of monetary value that justice should be required to recuse themselves….. I’m am sure that folks that idntify themselves as democras wont be calling themselves racist… just because hes a republican and black…… Unlike folks that call for Holder or Obamas resignation are called racist….. why is there a difference….. if they are white…..

  14. nick:

    bison and elk are really tasty animals. i like them better than beef. bear isnt bad either. I had Korean bear bq once, it was good eating.

    the best thing though, is after a hunt to cut out an elk heart and roast it over a fire with a side of rabbit. save the liver for breakfast, yummy.

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