A Supreme Conflict of Interest

Justices Scalia and Thomas are entitled to their political views. But if they attended or took part in the kind of events described in the Koch letter while thecase was pending, then they had no business voting on it.
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Judges are like umpires, Chief Justice John Roberts famously declared during his confirmation hearing five years ago. "They make sure everybody plays by the rules."

But what would happen if some umpires showed up at swank resorts as featured attendees at one team's pregame meetings?

Even the hint of such favoritism would trigger a fan revolt and demands from Capitol Hill that the umpires involved be disqualified.

Americans are about to find out just how much baseball and our judicial system really are alike.
Common Cause, which I'm privileged to lead, has asked the Justice Department to investigate whether Supreme Court Justices Antonin Scalia and Clarence Thomas should have recused themselves from the landmark Citizens United vs. Federal Election Commission case last year because they may have attended secret retreats where lobbying and political strategies were developed by some of the biggest players in the 2010 elections.

A year ago this week, Scalia and Thomas supplied critical votes in the 5-4 Citizens United decision that was of particular importance to two politically active billionaire brothers, Charles and David Koch. Charles Koch, president of Koch Industries, the nation's second largest privately-held firm, and brother David have spent tens and perhaps hundreds of millions of dollars over the years on conservative political activism. The Koch-sponsored group Americans for Prosperity has been critical to development of the Tea Party; it promised last year to spend $45 million on the Congressional midterm elections.

The Koch Brothers regularly convene conservative business and thought leaders and elected officials to plot strategy around elections out of sight from the public and the press. According to a letter distributed by Koch Industries last September, Scalia and Thomas have been among the featured guests at these exclusive gatherings.

The "seminars," as Koch describes the meetings, focus on "threats to American free enterprise and prosperity" and "appropriate strategies to counter them."

The Kochs' next seminar is set for next weekend at a posh, Palm Springs, Ca. resort. Their last session, in June 2010, included discussions on "understanding this electorate" and "mobilizing citizens for November" in order to "change the balance of power in Congress." Attendees "committed to an unprecedented level of support," Charles Koch wrote in September.

That's where the Supreme Court, and Scalia and Thomas in particular, come in.

The two justices were among those who voted in Citizens United to lift a 63-year-old ban prohibiting corporations, trade associations and unions from spending unlimited amounts on political advocacy.

The ruling prompted a flood of corporate spending on the 2010 midterms, the "unprecedented level of support" celebrated in Charles Koch's letter. The non-partisan Center for Responsive Politics reports that corporations and other "independent" donors put nearly $300 million into contests for the House and Senate; tens, perhaps hundreds of millions more went into races for governor and state legislatures.

More than $135 million of this money came from organizations like the U.S. Chamber of Commerce that aren't required to disclose their donors. And the lion's share went to candidates who share the Kochs' distaste for government regulation of businesses.

Like every American, Justices Scalia and Thomas are entitled to their political views. But if they attended or took part in the kind of events described in the Koch letter while the Citizens United case was pending, then they had no business voting on Citizens United.

A longstanding federal law requires "any justice, judge or magistrate" to step aside in any case "in which his impartiality might reasonably be questioned;" the Supreme Court itself has insisted repeatedly that lower court judges disqualify, or recuse themselves from cases simply because of the appearance of a conflict of interests.

It's a reasonable standard. If the Justice Department, the public's law firm, finds evidence that Scalia and Thomas have violated that standard, it should ask the court to vacate Citizens United.

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