There’s no question Supreme Court Justices Clarence Thomas and Antonin Scalia will soon find themselves under fire over their extracurricular political activities. The question is whether or not they and their powerful friends will actually get burned.
Eyebrows are raised over Justices Thomas and Scalia’s involvement with conservative groups that have an interest in the 2010 case Citizens United v. Federal Elections Commission, which allowed corporations to give unlimited, undisclosed funds to political committees and organizations.
While Scalia’s appearance at political gathering put on by Republican donors Charles and David Koch has some wondering whether he has a conflict of interest, and Scalia has admitted the right wing Federalist Society paid for his room and board, that complaint’s a mere irritant when compared to those lobbed at Thomas.
Like Tea Party favorite Scalia, Thomas’ work with the Koch brothers has produced a flurry political questions, and just today the liberal advocacy group Common Cause asked the Department of Justice to review Thomas’ 2008 trip to such an event.
Thomas’ spokesman claims the trip was just a “brief drop-by,” but Thomas’ financial disclosure forms indicate that the Federalist Society footed the bill for four days of travel and accommodations, something that qualifies as a “gift.” If Common Cause gets their way, the Justice Department will reopen Citizens United without Scalia and Thomas’ involvement.
And there’s the added complication of Thomas’s wife Virginia’s work with the Tea Party movement, the founding of her lobbying group and years of work for the socially conservative Heritage Foundation, who paid her $686,589 between 2003 and 2007, compensation Thomas neglected to include on disclosure forms.
Meanwhile, the group Protect Our Elections, filed a bar complaint against Thomas for “hiding the fact that Citizens United Foundation had supported his nomination and spent at least $100,000 on commercials attacking several Senators opposed to his nomination,” and 74 Democrats led by New York Rep. Anthony Weiner sent a letter from Thomas asking him to recuse himself from health care reform lawsuits involving some of his wife’s clients.
“The appearance of a conflict of interest merits recusal under federal law. From what we have already seen, the line between your impartiality and you and your wife’s financial stake in the overturn of health care reform is blurred,” they wrote.
Thomas and Scalia’s opponents have a pretty strong case. As Common Cause points out the Supreme Court code of conduct instructs Justices to recuse themselves in instances in which they could be said to have a bias, a position backed up by a 1974 law saying federal judges should do them same when their “impartiality might reasonably be questioned.”
It’s unclear how the Justice Department will react to the complaints, but the government’s response is less important than that of the public.
As Supreme Court historian Jeff Shesol told Katrina vanden Heuvel, “What’s at risk is not just a loss of faith in particular justices or even the Supreme Court as a whole, but a broader loss of public faith in the rule of law and the fairness of the judicial system. When the Supreme Court is simply politics by other means there is corrosion that seeps into the rest of the system.”
If Common Cause and Protect Our Vote convince enough of the electorate that Thomas and Scalia are biased, they can link that bias back to the Koch Brothers and the Tea Party candidates they support, like Sens. Rand Paul and Marco Rubio, and how back room corporate dealings have tainted the grass roots movement, thereby eroding the Main Street rhetoric on which the Tea Party was founded. But that’s a very big “If.”
There are compelling arguments that partisan news produces a more informed public, but that doesn’t guarantee the public will be convinced by facts.
While more liberal journalists will highlight the apparent bias on Thomas and Scalia’s part, outlets that lean right will portray the complaints as nothing more than a “vast left-wing conspiracy” to smear conservatives, an argument they will bolster by news that liberal organization The Third Lantern has started a website about House Oversight and Government Reform Committee chairman Rep. Darrell Issa’s shady past.
Justices Thomas and Scalia clearly acted inappropriately by accepting money from conservative interests, perhaps even unethically, but the jury’s still out on whether these revelations will have any impact, or if they’ll be swallowed by partisan spin, thus rendering even the perception of bias moot.