The left used to apply the politics of personal destruction to judicial nominees. Not anymore.
President Obama’s 2010 State of the Union address featured an unprecedented scolding of the conservative Supreme Court justices, seated before him, for their Citizens United campaign finance ruling. It signaled a dangerous escalation in the left’s politicization of the courts and “set the tone,” says Politico, for this year’s “aggressive — and, at times, personal — attack on the… impartiality and ethics of Justices Clarence Thomas, Antonin Scalia, and, to a lesser extent, Samuel Alito.”
The attack is being led by left-wing activist groups, talking heads, and a group of liberal congressmen. It is born of unhappiness about the Court’s recent and prospective decisions impacting the Obama agenda, as well as paranoia about a corporate cash-fueled, vast right-wing conspiracy headed by the Koch brothers. And it is maintained by cobbling together tenuous suggestions of conflicts and misconduct involving Scalia, Thomas, and Alito in the hopes of creating an ethical cloud.
At the heart of the charges are contacts that allegedly compromised the three justices’ ability to impartially decide cases, particularly Citizens United and the constitutional challenges to Obamacare. Much of the focus has been on the expense-paid attendance of Justices Scalia and Thomas at events connected to the semiannual conservative conferences organized by Koch brothers David and Charles, generous donors to limited-government causes and the left’s favorite bogeymen. A much-publicized complaint against the justices, submitted to Attorney General Eric Holder by the longtime liberal advocacy group Common Cause, centers on these conferences.
Liberal critics are also up in arms over Justice Scalia’s closed-door talk this January to a bipartisan group of congressmen because it was organized by the House Tea Party Caucus. Justice Alito skipped the Hill lecture and Koch conference, but was denounced by the left for attending conservative fundraising events, including dinners for this magazine. Even Alito’s natural reaction to Obama’s State of the Union ambush — in which the Justice shook his head and mouthed “not true” — has been widely portrayed as evincing a lack of impartiality and professionalism.
Justice Thomas’s wife, Ginni, has also been a subject of the ethics assault. The left is obsessed with her past and current employment by organizations — conservative nonprofits and Liberty Consulting — that potentially benefit from Citizens United or oppose Obamacare. A group of 74 House Democrats led by the always theatrical Anthony Weiner (D-NY) cited these ties and a related error on Justice Thomas’s financial-disclosure reports in an accusatory letter asking the justice to “recuse yourself from any deliberations on the constitutionality of [Obamacare].”
No There There
THE ETHICAL CONSTRAINTS on the conduct of Supreme Court justices are murky and open to lots of interpretation. The relevant federal law requires a judge to recuse himself where “he has a personal bias or prejudice concerning a party,” “a financial [or other] interest in the subject matter in controversy,” or where “his impartiality might [otherwise] reasonably be questioned.” If that language were interpreted broadly enough, the activities of the conservative justices and virtually every other federal judge would run afoul of the law. But under common, reasonable interpretations of the law, the charges against Thomas, Scalia, and Alito come up short. It suffices to say, as Politico did, that “even liberal legal experts have brushed off the complaints as hollow.”
“[I]t is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views,” writes Harvard Law School professor Noah Feldman in a New York Times op-ed, just as it would be if conservatives attacked Justice Breyer “when he consorts with his numerous friends and former colleagues in the liberal bastion of Cambridge, Mass.” Similarly, a Washington Post editorial points out that the conservative justices “are not the only members of the high court who routinely enjoy all-expenses-paid excursions funded by third parties, including some that may be considered controversial.” The Post cites liberal justices Sotomayor, Breyer, and Ginsburg as examples.
Justice Ginsburg should be especially thankful that judicial ethics standards are interpreted in a relatively narrow manner. The list of her controversial excursions is long, and even the New York Times reported that her disclosure of potential conflicts has been less than exemplary.
UNTIL THE RECENT assault on the ethics of conservative Supreme Court justices, the left had largely reserved the politics of personal destruction for judicial nominees, preferring less personal attacks on sitting judges. With so little substance behind the ethics charges, the question of what is motivating this escalation arises.
The stated goal of the mudslingers is recusal. Rep. Weiner and his colleagues want Justice Thomas to recuse himself when Obamacare reaches the Court. Common Cause goes even further, asking the Justice Department to consider filing a motion to vacate the Citizens United decision after investigating whether Thomas and Scalia should have recused themselves from the case because of the alleged conflicts of interest.
But recusal can’t be the endgame of this ethics campaign. Liberals know they have little hope of convincing Thomas to recuse himself in the Obamacare cases and even less hope of effecting retroactive recusal in Citizens United.
Rep. Louie Gohmert (R-TX), a former state judge, attributes the attacks in part to “a fundraising effort” by groups like Common Cause. While it’s true that the campaign against conservative justices is a money-maker for such groups, their motivations go much deeper.
Much of the impetus for this campaign is the left’s apoplectic rage at Citizens United. Former labor secretary Robert Reich, for example, sees it as “an illegitimate decision, arrived at by at least two justices who should never have participated in it.”
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H/T to National Review Online