Thursday, February 24, 2011

more Than 100 Law Professors Want Mandatory and Enforceable Ethics Rules for Supreme Court Justices

Law Profs Urge Ethics Rules for Supreme Court Justices

Judge Antonin Scalia
More than 100 law professors have signed on to a letter released today that proposes congressional hearings and legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the letter said, apparently referring to stories of meetings and other potential conflicts of interest involving Justices Antonin Scalia and Clarence Thomas among others.

The professors note that the Court is not covered by the code of conduct that lower federal court judges are required to follow. The Supreme Court has long said it looks to the code for "guidance" -- a concession which, the signers agree, "has proved insufficient." The letter also points out disapprovingly that individual justices alone decide whether they should or should not recuse in a given case, not subject to review by anyone else, and with no requirement to explain their decisions. We delved into the recusal issue in a recent story in our newsletter Supreme Court Insider (subscription required.)

"Adherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of the Supreme Court," the letter asserted.

The professors directed their letter to the leaders of the Senate and House Judiciary Committees, with an eye toward hearings and legislation that would apply and enforce the code of conduct on Supreme Court justices, and impose rules for transparency and review of justices' recusal decisions.

In making their case, the professors invoked the Court's own language from the 2009 decision in Caperton v. A.T. Massey Coal Co., which disapproved of a state judge's refusal to step aside from a case that involved a major campaign donor. "Judicial integrity is," the Court said, "a state interest of the highest order."

Alliance for Justice president Nan Aron said her group became involved with the letter-writing effort after consulting with some legal ethics experts in the context of the growing controversy over meetings with conservative groups by Thomas and Scalia, as well as lobbying activities by Thomas's wife Virginia. "They were alarmed about what was happening," said Aron, so she agreed to "shepherd" the professors' letter through to fruition. "The time is overdue," Aron said, for new ethics rules for the high court.

Among the signers are leading names and experts on legal and judicial ethics, including Stanford Law School's Deborah Rhode, George Washington University Law School's Stephen Saltzburg and Alan Morrison, James Alfini of South Texas College of Law, Yale Law School's Lawrence Fox, Amanda Frost and Herman Schwartz of American University Washington College of Law, Northwestern University School of Law's Steven Lubet and Ellen Yaroshefsky of Benjamin N. Cardozo School of Law.

Notably absent, however, was Stephen Gillers of New York University School of Law, perhaps the best known legal ethics expert nationally. Asked about the letter today, Gillers said he agreed with most of it, but parted ways with the group over the recusal issue. Requiring justices to submit their recusal decisions for review by other justices, he said, could lead to "the appearance of opportunistic behavior" aimed at keeping a colleague on or off the case, and could spoil the Court's collegiality. Citing the current "highly politicized" debate over justices' ethics, Gillers also said he would rather that hearings and legislation take place "in a more neutral time."

Posted by Tony Mauro on February 24, 2011 at 01:31 PM in Politics and Government , Supreme Court

Is Justice Clarence Thomas Guilty of Felony Ethics Violations?

AllGov., Monday, February 14, 2011
Ginni Thomas

Justice Clarence Thomas has been required since he joined U.S. Supreme Court in 1991 to disclose the income of his wife—something he failed to do until a liberal advocacy group blew the whistle on his inaction. Thomas has insisted the reporting failure was merely “a misunderstanding of filing instructions.” But Common Cause and other organizations aren’t buying the excuse.

Common Cause President Bob Edgar said it was “difficult to believe” and “implausible” that Thomas, a 20-year member of the high court, didn’t know the law pertaining to disclosure. accused Thomas of receiving special treatment from the Judicial Conference of the U.S. Committee on Financial Disclosure by allowing him to file two decades worth of amendments to cover up for his breaking the law.

From 2003 to 2009, Thomas did not report more than $680,000 in income that his wife, Virginia Thomas, earned from working for The Heritage Foundation, a conservative think tank. He also did not reveal, until now, her earnings with the foundation during the period 1998-2003.

Thomas’ filing errors could result in a felony conviction if he were to be brought up on charges, according to

As far back as 1989, Thomas marked the “NONE” box for his spouse’s non-investment income on his judicial financial disclosure forms. On January 21, 2011, he filed amendments admitting that his disclosure forms were wrong.

Meanwhile, his wife continues to draw attention to herself with her conservative political activism, as “she is rebranding herself as a lobbyist and self-appointed ‘ambassador to the Tea Party movement,’” writes Eric Lichtblau in The New York Times. Her work raises the question whether Clarence Thomas can remain independent on matters before the Supreme Court that his wife has invested herself in. On the website of her new lobbying firm, Liberty Consulting, Inc., Ginni Thomas promises “to leverage her 30 years of experience as a Washington ‘insider’ to assist non-establishment ‘outsiders’ who share her belief in our core founding principles and values.”

-Noel Brinkerhoff

January 19, 2011

Advocacy Group Says Justices May Have Conflict in Campaign Finance Cases

WASHINGTON — When the conservative financier Charles Koch sent out invitations for a political retreat in Palm Springs later this month, he highlighted past appearances at the gathering of “notable leaders” like Justices Antonin Scalia and Clarence Thomas of the Supreme Court.

A leading liberal group is now trying to use that connection to argue that Mr. Scalia and Mr. Thomas should disqualify themselves from hearing campaign finance cases because they may be biased toward Mr. Koch, a billionaire who has been a major player in financing conservative causes.

The group, Common Cause, filed a petition with the Justice Department on Wednesday asking it to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in the case, involving Citizens United, because of their attendance at past retreats organized by the conservative financier Charles Koch, whose company operates a foundation that is a major contributor to political advocacy groups.

Common Cause also cited the role of Mr. Thomas’s wife, Virginia Thomas, in forming a conservative political group opposed to the Obama administration as grounds for his disqualification.

The petition is a new tack for opponents of the court’s decision in the Citizens United case. Common Cause, by its own acknowledgment, faces a difficult task in getting the justices’ to remove themselves from the case and seeking to have the Citizens United decision itself vacated.

“We’re treading in new territory here for us,” said Arn H. Pearson, Common Cause’s vice president for programs. “But a situation like this raises fundamental questions about public confidence in the Supreme Court.”

Officials at Koch Industries, which Mr. Koch leads, did not respond to e-mails and a phone call Wednesday seeking comment on the petition. A spokeswoman at the Supreme Court declined comment.

Supreme Court justices have wide latitude in deciding whether to recuse themselves from hearing cases. In one of the more well-known examples in recent years, Justice Scalia refused to remove himself from hearing a challenge to Vice President Dick Cheney’s energy task force after he had gone duck hunting with Mr. Cheney in 2004.

“It’s a steep uphill climb for Common Cause, but not an insurmountable one,” said Steven Gillers, who teaches legal ethics at New York University. At the very least, he said, the group’s petition could force a “public airing” of questions surrounding the two justices’ past appearances at the Koch retreat and their connections to the group.

Still unknown, for instance, is exactly when Justices Scalia and Thomas appeared before the group for its invitation-only retreat, which is aimed at promoting political strategies for economic freedom, or whether they were reimbursed for their expenses.

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch’s group between 2008 and 2010, when the court was considering aspects of the Citizens United case, “it would certainly raise serious issues of the appearance of impropriety and bias.”

Mr. Koch and his brother, David Koch, were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case and became a favorite target of liberal groups, which accused them of effectively trying to buy the election.

The political action committee for Koch Industries, a Kansas-based energy company, spent $2.5 million in last year’s elections, according to the Common Cause complaint. Americans for Prosperity, a conservative group that the Koch brothers founded, is believed to have spent tens of millions more in the campaign to support conservative candidates.

This article has been revised to reflect the following correction:

Correction: January 27, 2011
An article last Thursday about concerns by the advocacy group Common Cause that the participation of two Supreme Court justices in a campaign finance case last year might have posed a conflict of interest misstated the purpose of a request Common Cause made to the Justice Department. The advocacy group wants Justice to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in the case, involving Citizens United, because of their attendance at past retreats organized by the conservative financier Charles Koch, whose company operates a foundation that is a major contributor to political advocacy groups. Common Cause is not seeking to have the justices recuse themselves from all future campaign finance cases.
Clarence Thomas Letters (Velvet Revolution) (pdf)

Supreme Court Justice Clarence Thomas’ Failure to Disclose Income of Spouse (Common Cause) (pdf)

Justice Thomas’s Wife Sets Up a Conservative Lobbying Shop (by Eric Lichtblau, New York Times)

Clarence Thomas Didn’t Report Wife’s Political Income (by Noel Brinkerhoff, AllGov)

Clarence Thomas’ Wife May Have Benefitted from His Vote on Campaign Financing (by Noel Brinkerhoff and David Wallechinsky, AllGov)

Wife of Supreme Court Justice Thomas Starts Conservative Lobbying Group (by Noel Brinkerhoff, AllGov)

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