[Guest post by Aaron Worthing; if you have tips, please send them here.]
This is so silly, specious and attention-seeking I am tempted to ignore it. But I guess I agree with Palin’s implicit logic that a smear has to be answered, so here goes.
So this morning the New York Times publishes more or less a press release, reworded, asserting that (gasp) Justices Scalia and Thomas might have had a conflict of interest. The theory goes like this.
Every year there is a retreat to discuss policy and politics held by the Koch brothers, a pair of industrialists that apparently the left is trying to set up as the right wing George Soros. And in a recent letter they mentioned that Scalia and Thomas had spoken sometime in the past at one of these events. You can read a purported copy from Think Progress, here.
So a liberal anti-freedom group called Common Cause has sent a letter to the Department of Justice seeking to have them investigated. Specifically they suspect that Scalia and Thomas were paid money by a corporation. Not that this corporation was a party to the case, but still this corporation is very active in politics and thus benefited from Citizens United. Therefore, they believe they should have disqualified themselves in Citizen’s United, and for that reason the decision should be vacated.
Um, for what? The Code of Conduct for United States Judges specifically says that federal judges are allowed to speak, even for compensation:
Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.
Obviously it is possible for this kind of advocacy to compromise impartiality, but these Common Cause morons seem to think we should assume it is a problem. That is wrong.
But, Common Cause would argue, they are being potentially paid by a corporation and every corporation benefitted from Citizens’ United, therefore somehow that adds up to bias.
First, Justices speak before corporations all the time. For instance, this is Justice Ginsberg speech to Harvard Law School, which is a corporation. And that is before Ginsberg heard the case of Rumsfeld v. FAIR, a case which directly concerned the legality of Harvard Law School’s policy on military recruiters. And here’s one by Justice Breyer. Indeed, it seems safe to assume that if you google the name of a prominent law school (Harvard, Yale, Stanford, U. of Michigan, etc.) and the name of a supreme court justice along with the word “speech” you will find at least one such speech by nearly all justices at nearly every prominent law school. For instance do you think any of our Supreme Court Justices spoke at the University of Michigan Law School before or after they ruled on the legality of their affirmative action program? I would bet the answer is “yes.”
Oh, but those are the good kinds of corporations, right? The problem is that there is no reasonable, neutral legal basis to distinguish the “good” ones from the “bad” ones and it just ends up being which corporations you like better—hardly the ideal of blind justice.
But its much worse than that. You see Justice Breyer has directly benefitted financially from Citizens United. So has Justice Ginsberg. You see in Citizens United, the Supreme Court affirmed the right of a corporation to speak. Justice Elena Kagan, then the solicitor general of the United States, argued that corporations had no right to speak at all. If that view had been followed, the government would have unfettered power to even ban books. As Justice Kennedy wrote “If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books.” So the right of a corporation to pursue its freedom of the press was on the docket that day, and not even the dissenters were willing to allow for a breach in the right of the press. In this, future Justice Kagan found herself radically alone.
And both before and after this decision, Justices Breyer and Ginsberg were authors in published books. Ginsberg wrote the forward to several books and Justice Breyer was the main author on a pair of books. Breyer in particular had to know that if he allowed Congress to outright ban books, the ability to profit from his authorship would be endangered. So they should have disqualified themselves, right?
And even if they literally ruled against their interest, that doesn’t address the problem. As a matter of law, bias is a concern for both sides in a case. Let’s take a simple example: the upcoming criminal trial of Jared Loughner. His lawyers have asked for the disqualification of every single federal judge in Arizona and that sounds right. Judge Roll was a co-worker and very often friend of many of the judges there and they can’t possibly be impartial. But as a matter of law, the federal prosecutors have as much right to object as the defense. The defense can rightfully be concerned, for instance, that an Arizona (federal) judge would want to see his/her colleague avenged. But the prosecution can rightly fear that an Arizona judge might unfairly favor the defendant, to prove how “unbiased” s/he is.
Further, every single justice who owns a single stock in any corporation has a similar problem. Which is just about all of them. After all, if corporations can speak freely, their ability to profit might theoretically increase and thus the stock’s value might go up.
The reality is that when you are a Supreme Court Justice, the issues you rule on are often so big there is no way for a decision not to affect you in some sense of the word. Let’s return to the example of Jared Loughner. I think it is fair to say that all the federal judges in Arizona should be disqualified, but if we want to be technical, there isn’t a single federal judge alive who doesn’t have a stake in the outcome of this case. The prosecution for the murder of a federal judge directly bears on the safety of every other federal judge. ABA President Stephen Zack stated that Roll’s murder was “a direct attack on our American way of life and the rule of law.” I imagine a lot of federal judges agree. So does that mean every federal judge is disqualified from presiding in the trial of Loughner?
The answer, virtually every federal judge would give, is no. And the logic is implicitly that the bias alleged must be particularized enough that it would not result in the disqualification of the entire judiciary, or a large swath of it. Yes, I suppose federal judges could just own no stock, write no books, make no speeches, teach no students, etc. But not only is that unreasonable but it is unwise. Federal judges, as a group, are some of the smartest people in our society with the greatest knowledge of the judiciary. We all can benefit from their perspective, yes even the perspective of the justices I consider to be flakey.
Of course there are limits to this. They are required to make financial disclosures, their speaking fees are limited by law and substantively they can’t get up there and give lectures that lead one to question their impartiality. So if Scalia gets up in front of an audience and lays out a legal strategy for overturning Roe v. Wade, that is probably against the rules. But Common cause doesn’t have a single piece of evidence of that kind of conduct. There is no evidence that Scalia or Thomas were paid a dime–indeed there is no evidence that they got any reimbursement for expenses. They can’t even tell you when this retreat was done, so for all we know, the retreat could have occurred after the Citizens United decision, which would conclusively rebut any suspicion that it was a bribe in disguise. What it has is, “ooooh, look Scalia and Thomas have associated themselves with an ‘evil’ corporation.” Well, bluntly that isn’t even good enough to justify an investigation.
Hopefully, therefore, there won’t be one.
[Posted and authored by Aaron Worthing.]
Return to main page.