Recusal! More than just an ‘appearance’ of impropriety

Posted by AzBlueMeanie:

Yesterday the U.S. Supreme Court granted certiorari in three appeals challenging the Affordable Care Act. In all of the reporting I have read on this matter, what I have not seen is any indication that Justice Clarence Thomas recused himself from hearing and deciding the case based upon his wife Virginia "Ginny" Thomas' extensive poliitcal activities with the Tea Party organization Liberty Central that she founded which very publicly opposed the Affordable Care Act.

I posted about this back when "Ginny" Thomas may have had one glass of wine too many and drunk dialed Anita Hill to ask her to apologize to her husband. Remember that? And the evil billionaire bastard Koch brothers make a cameo appearance as well. What was really going on with the Anita Hill sideshow:

On Tuesday evening, the New York Times published a story about the Billionaire Kock brothers (aka the "Kochtopus"), who are trying to buy themselves a Congress this election thanks to the U.S. Supreme Court decsion in Citizens United v. FEC, planning to host a meeting in January for the plutocratic "two percenters" and their newly purchased Congress. Koch Industries and Network of Republican Donors Plan Ahead. 21 paragraphs into this disturbing story of political corruption is this passage:

To encourage new participants, Mr. Koch offers to waive the $1,500 registration fee. And he notes that previous guests have included Justices Antonin Scalia and Clarence Thomas of the Supreme Court, Gov. Haley Barbour and Gov. Bobby Jindal, Senators Jim DeMint and Tom Coburn, and Representatives Mike Pence, Tom Price and Paul D. Ryan.

Would that have been before or after the Citizens United v. FEC decision in January 2010? Was the decision a quid pro quo for Justices Scalia and Thomas patronizing the Koch brothers biannual shindig for the plutocatic "two percenters"? Was the Citizens United ruling and how it could most benefit the Koch brothers and other far-right corporate funded 501(c)(4) non-profit political organizations ever discussed at this meeting? There are some serious ethical questions raised by Supreme Court Justices ruling favorably for their friends and associates who have business before the court, especially on something as controversial as Citizens United.

Justice Thomas' ethical lapses are not limited to his friends the Koch brothers. As I told you in March of this year, shortly after the Citizens United decision, Thomas' wife, Virginia "Ginny" Thomas, formed a 501(c)(4) nonprofit political organization. Wife of Justice Clarence Thomas launches a Tea Party organization. (3/15/2010).

Supreme Court Justices and their spouses traditionally are not politically active nor actively involved in anything remotely controversial that could bring disrepute upon the Court or give cause for the public to question the impartiality and fairness of the Justice or the Court.

Apparenlty Justice Clarence Thomas and his wife Ginny are not happy with this longstanding tradition and feel it is appropriate for them to politicize the U.S. Supreme Court. I posted that legal experts were critical of Mrs. Thomas' ethically challenged decision to establish a 501(c)(4) nonprofit political organization, i.e., Tea Party, at the time. Wife of Justice Clarence Thomas is violating law. (3/19/10).

I recently posted about Justice Thomas' conflict of interest with his wife's political activities in DNC goes on the offensive against foreign-funded "U.S." Chamber of Commerce:

It turns out Justice Clarence Thomas has a serious conflict of interest as the Citizens United decision directly benefitted his wife's 501(c)(4) conservative political action committee. Thomas should have recused himself. Activism of Thomas’s Wife Could Raise Judicial Issues:

[Virginia] Thomas is the founder and head of a new nonprofit group, Liberty Central, dedicated to opposing what she characterizes as the leftist “tyranny” of President Obama and Democrats in Congress and to “protecting the core founding principles” of the nation.

It is the most partisan role ever for a spouse of a justice on the nation’s highest court, and Mrs. Thomas is just getting started. “Liberty Central will be bigger than the Tea Party movement,” she told Fox News in April, at a Tea Party rally in Atlanta.

But to some people who study judicial ethics, Mrs. Thomas’s activism is raising knotty questions, in particular about her acceptance of large, unidentified contributions for Liberty Central. She began the group in late 2009 with two gifts of $500,000 and $50,000, and because it is a 501(c)(4) nonprofit group, named for the applicable section of the federal tax code, she does not have to publicly disclose any contributors. Such tax-exempt groups are supposed to make sure that less than half of their activities are political.

Mrs. Thomas, known as Ginni, declined through a spokeswoman to be interviewed without an agreement not to discuss her husband.

* * *

Nonprofit groups with political agendas like Liberty Central are operating in this election cycle under evolving legal and regulatory standards, most notably the ruling last January by the Supreme Court in the Citizens United case, which eased restrictions on independent campaign spending by corporations and unions. In that case, Justice Thomas, long an advocate of dismantling campaign finance restrictions, was in the 5-to-4 majority. Wealthy individuals and some corporations, emboldened by the ruling, are giving to such groups to influence the election but still hide their tracks.

* * *

This month, Liberty Central began what it called its first ad campaign, but the ads were limited to Web sites for the conservative talk-show hosts Rush Limbaugh and Mark Levin — suggesting an effort to build membership for Liberty Central, not elect candidates. The ads link to Liberty Central’s Web site and a video of Mrs. Thomas soliciting 100,000 signatures against the “Obama tax increase” — referring to the scheduled expiration of the Bush tax cuts on Dec. 31.

The bigger question for many is how she is financing these activities. Liberty Central reported the initial $550,000 on its 2009 tax return, though the identities of the two donors are redacted.

A federal law requires justices to recuse themselves in a number of circumstances where real or perceived conflicts of interest could arise, including in cases where their spouses could have a financial interest. But the decision to step aside is up to each justice; there is no appeal from the nation’s highest court.

“It’s shocking that you would have a Supreme Court justice sitting on a case that might implicate in a very fundamental way the interests of someone who might have contributed to his wife’s organization,” said Deborah L. Rhode, a law professor and director of the Stanford University Center on the Legal Profession.

Justice Clarence Thomas and his wife Ginny have 'gone rogue," ignoring judicial ethical canons of conduct longstanding traditions of the Court. They are trying to make it acceptable for a U.S. Supreme Court Justice and his spouse to be politically active and politically involved in controversial organizations. This will only bring disrepute upon the Court and give cause for the public to question the impartiality and fairness of the Justice and the U.S. Supreme Court.

The U.S. Supreme Court is largely self-policing on matters of ethical conduct. They do not answer to any bar association. But Congress has the power of oversight and could investigate ethical miconduct.

So on the very same day that the U.S. Supreme Court granted certiorari in three appeals challenging the Affordable Care Act, Justice Clarence Thomas and his buddy Justice Antonin Scalia "were feted at a dinner sponsored by the law firm that will argue the case before the high court." Scalia and Thomas dine with healthcare law challengers as court takes case – latimes.com:

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

* * *

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court's conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. [Only because] justices are exempt from the Code of Judicial Conduct that governs the actions of lower federal judges. [The classic "do as I say, not as I do" double standard.]

If they were, they arguably fell under code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

* * *

“This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges,” said Bob Edgar, the president of Common Cause. “The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.”

Now, the right-wing noise machine has been ginning up a recusal controversy of its own. Justice Elena Kagan served as solicitor general in the Obama administration when the first legal challenges to the law were brought at the trial court level. Her critics have pushed for Kagan to recuse herself from hearing the case, saying that she was too invested in defending the law then to be impartial now.

I would agree that Justice Kagan, if she actively participated as legal counsel in any of the cases now before the Court on appeal should recuse herself, as she has done previously.

Having represented the U.S. government as counsel in a case, however, is not unethical behavior.

What are bad boys Antonin Scalia, and Clarence Thomas and his wife Ginny are doing is, in fact, unethical behavior for any federal judge under the Code of Judicial Conduct. As Justices of the Supreme Court, they have exempted themselves from the Code. They clearly do not care about their appearances of impropriety and lack of objectivity and impartiality to which they would hold other federal judges accountable. They see themselves above the law, accountable to no one.

This could subject our bad boys to congressional hearings and even impeachment under the U.S. Constitution. This Tea-Publican Congress is never going to permit this. The only option is intense public scrutiny and public pressure brought to bear on these Justices to recuse themselves from hearing and deciding these cases. Six Justices can decide the case.