Constitutional Opinions

Ganging Up on Justices Thomas, Scalia, and Alito

The left used to apply the politics of personal destruction to judicial nominees. Not anymore.

By From the June 2011 issue

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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.

Motivations

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."

The left is convinced, albeit erroneously, that the ruling released a torrent of corporate cash into politics and epitomizes the Roberts Court's conservative judicial activism and pro-business tilt. Alliance for Justice president Nan Aron, who has led the vilification of GOP judicial nominees going back to Robert Bork, admits the ethics campaign against the conservative justices is targeted at the "concerted effort by the Roberts Court...to make decisions in favor of large corporations at the expense of everyday Americans." The belief that Citizens United particularly benefits the conservative forces Justices Thomas, Scalia, and Alito are allegedly conspiring with makes the decision even harder for the left to swallow.

For Rep. Chris Murphy (D-CT), who along with Anthony Weiner leads the attacks coming from the House, the threat posed by the Citizens United decision is more personal. Explaining why he introduced a bill aimed at tightening the ethics rules for Supreme Court justices, Murphy cited conservative groups that ran ads against him and other Democratic candidates in the wake of the decision.

Vast Right-Wing Conspiracy

CITIZENS UNITED, the rise of the Tea Party, and a bad election for Democrats last fall heightened paranoia about the "vast right-wing conspiracy" to a level unseen since Hillary Clinton made the term famous. This time around, the left believes the conspiracy is fueled by cash from the Koch brothers, whom Salon's liberal blogger Glenn Greenwald describes as "the bogeymen who motivate the [left's] loyalists and on whom everything bad, including political losses, can be blamed."

According to this worldview, the Supreme Court's loosening of campaign finance restrictions in Citizens United can be explained as a favor for the Koch brothers, other conservative billionaires, and the right-wing groups that receive their money. Never mind that the vast majority of the Koch brothers' giving has been to medical research and museums.

That the accused justices are beholden to conservative billionaires can be seen in their attendance at Koch-associated events and their ties to other parts of the billionaire-funded web, such as the Federalist Society and former Ginni Thomas employer Liberty Central. Common Cause's complaint suggests that "Koch Industries [sic] ties to his wife's group...create an additional appearance of bias for Justice Thomas?" Justice Thomas's choice "of the Federalist Society as a venue to air his grievances about his critics" is similarly suspicious according to Robert Reich. After all, the Society is "financed in part by the Koch brothers."

Intimidation and Delegitimization

THE CAMPAIGN against the conservative justices gets its intensity from anger and paranoia but it is not lacking in concrete objectives. Politico notes that

For liberals, the disposition -- and, to some extent, the public perception -- of the court is of looming concern as key aspects of Obama's ambitious domestic agenda appear to be on a collision course with the Supreme Court's conservative bloc.

That's a polite way of saying that liberals hope their attacks on the conservative justices will ensure that the justices are intimidated and the public is suspicious when the most controversial aspects of Obama's agenda -- Obamacare, the attack on Arizona's illegal immigration crackdown, and the EPA's attempted end-run around congressional resistance to cap and trade -- reach the Supreme Court.

The attackers are open about these goals. When explaining why he introduced his Supreme Court ethics bill, Rep. Murphy admitted "My interest is certainly piqued by the fact that [the justices] may be taking on...the health care law." Rep. Weiner was even more brazen in explaining the letter he and colleagues wrote to Thomas: "If Justice Thomas does not recuse himself and the Court rules [against] the law, I will be making the point that this is not a credible decision." In other words, the plan is to try intimidation, and if that fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court's ruling in the eyes of the public.

Kagan Recusal

FEDERAL LAW requires that federal judges who previously served in the executive branch recuse themselves from any case where they have "participated as counsel, adviser...or expressed an opinion concerning the merits of the particular case." Because Elena Kagan served in the Department of Justice as the nation's solicitor general until her nomination to the Supreme Court, she had to recuse herself from many of the Court's cases this term. Should she also recuse herself from the Obamacare cases when they reach the Court?

Many suggest the answer is yes. As the government's "senior expert on Constitutional issues...it's hard to believe she wouldn't have been asked at least in passing about a Constitutional challenge brought by so many states," the Wall Street Journal argues. Although Kagan distanced herself from new DOJ litigation when she learned she was being considered for the Supreme Court, top Justice Department officials were already strategizing about anticipated legal challenges to Obamacare at least two months earlier. Contradictions between internal e-mails and public statements on Kagan's involvement with the anticipated cases heighten suspicions.

The bottom line is that the Supreme Court's vote on the constitutionality of Obamacare is likely to be very close, so liberals need Kagan's vote and will fight hard against any pressure for her recusal. Are the attacks on the conservative justices the beginning of that fight? Hot Air's Ed Morrissey thinks so:

The purpose of this isn't really to pressure Thomas into a recusal, at which Thomas is almost certain to issue his trademark booming laugh, but to pre-empt the recusal argument for Elena Kagan.

Kagan could use the help. She declined to recuse herself -- as did Justice Thomas -- when the Court denied Virginia's request for expedited review of its Obamacare suit on April 25. However, pressure for her recusal will increase as the final showdown over Obamacare's constitutionality nears and as Freedom of Information requests uncover additional internal DOJ documents.

Politicization of the Courts

TO BE FULLY understood, the ethics attacks must be seen in a historical context. It is said that "Liars think everyone lies, and thieves think everyone steals." Thus, it should come as no surprise that the ethics allegations -- essentially, charges that the conservative justices are beholden to political interests -- comes on the heels of the left's decades-long endeavor to politicize the courts.

Since the Warren Court ushered in the "living Constitution," the left has relied on liberal judicial activism to implement its political agenda. That raised the stakes in judicial selection, leading the left to unleash the politics of personal destruction on the confirmation process. But Republicans learned from the massacres of Robert Bork and Clarence Thomas and from their disappointment in GOP appointees David Souter and Sandra Day O'Connor. When Justice Alito was confirmed in January 2006, the left knew that its long reliance on the Court had come to an end.

Deprived of a sympathetic Supreme Court lineup, frustrated by their inability to hijack the confirmation process, and convinced that the Roberts Court was intent on paring down the gains of liberal judicial activism, the left was desperate to find a new tool for manipulating the High Court. In this context, "it's not so surprising that attacks on the justices would veer from the purely ideological into attempts to delegitimize the justices personally," notes Professor Feldman.

Anger over Citizens United and the 2010 election results added the final sparks to liberal frustration, and the assault against the ethics of Scalia, Thomas, and Alito was on. 

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About the Author

Curt Levey is a constitutional law attorney and executive director of the Committee for Justice.