Common Cause v. Scalia and Thomas

(from The Wall Street Journal, January 25, 2011)


Last week, liberal activists at Common Cause called on the United States Justice Department to investigate Supreme Court Justices Antonin Scalia and Clarence Thomas for a supposed ethical lapse.

The case at issue is Citizens United v. Federal Election Commission (2010), involving an unflattering film about then-presidential candidate Hillary Clinton distributed by a conservative nonprofit corporation in 2008. The Supreme Court ruled that limits on corporate spending unconnected to any candidate’s campaign were unconstitutional.

Common Cause took exception and is now seeking to overturn the decision. In a letter to the Justice Department, the group claims that Justices Scalia and Thomas, who voted with the majority of the Court to strike down the challenged spending limits, violated ethical rules requiring a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The reason: Both justices purportedly attended (Mr. Scalia in 2007 and Mr. Thomas in 2008) “invitation-only” programs sponsored at least in part by the Koch family, owners of Koch Industries and frequent supporters of free-market and libertarian causes. Neither justice, the letter claimed, had disclosed any travel reimbursements by the Kochs.

Common Cause got its facts wrong. The Justices did not disclose reimbursements by the Kochs because they were actually the guests of the nonpartisan Federalist Society (a regular sponsor of public debates and speeches on legal and policy issues), which they did report.

Neither justice attended the conference. Both spoke at a dinner hosted separately from the conference. And neither spoke about the First Amendment, let alone restrictions on corporate spending. Mr. Scalia discussed international law, while Mr. Thomas delivered a speech on his recent memoir and life story.

Mr. Scalia’s speech took place in January 2007, nearly a year before Citizens United was filed in the federal courts. Mr. Thomas spoke in January 2008, a few weeks after the case was filed but well before it reached the Supreme Court in 2009.

Common Cause’s letter to the Justice Department is just the latest salvo in a long campaign by left-wing groups to intimidate conservative judges, academics and activists. For years, groups like Common Cause have assailed nonprofits that provide judges, lawyers and students with education in economics, law and American history. They have pushed for onerous disclosure regulations and even proscriptions against judges attending conferences sponsored by groups with corporate donors. The goal, of course, is to restore the monopoly on such educational forums to the law schools and the more reliably left-leaning American Bar Association.

Just this month, liberals sought to manufacture a controversy over Justice Scalia’s speech to the House Tea Party Caucus. His topic: the constitutional limits of Congress’s powers and those of the court. Although it is difficult to think of a more appropriate topic on which a justice might speak, The New York Times called it “outlandish” and “dismaying.”

Of course, conservative judges aren’t the only ones who give speeches. Justice Stephen Breyer, for instance, spoke recently at a private retreat for members of the House Judiciary Committee.

Such engagements are appropriate and healthy. Judges are not, and should not behave as, members of a cloistered religious order. They are citizens and voters as well as powerful public officials, and they should participate in the greater society on which their decisions often have a profound impact.

This would be impossible if the rule championed by Common Cause were adopted. Attendance of educational and professional events by members of the federal judiciary is common and has never been held as a basis for recusal. Judicial decisions, especially those of the Supreme Court, may have any number of effects on any number of groups. Recusal ordinarily is required only when a judge has a direct and personal economic interest in one of the parties to a case.

Common Cause’s letter isn’t only an unfair attack on two Supreme Court justices. It is an assault on the judiciary and an effort to silence conservative voices.

Messrs. Rivkin and Casey served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.



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