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November 15, 2011 9:25 AM Scalia, Thomas fail to inspire confidence

By Steve Benen

I really wish Supreme Court justices would at least make an effort to avoid the appearance of impropriety. (thanks to R.P. for the tip)

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

In this instance, we’re talking about the annual dinner of the Federalist Society, the conservative legal group which has hosted many dinners Scalia and Thomas have attended. But these justices’ extra-curricular activities send unsettling signals — on Thursday morning, they huddled over the Affordable Care Act; on Thursday night, they were featured guests at a dinner sponsored by firms, trade associations, and corporations with a direct role in the case.

As the L.A. Times report noted, lower-court judges would risk ethics violations by taking similar actions — but Scalia and Thomas are not bound by the same code of conduct.

And all of this might be slightly less disconcerting were it not for the even larger context, including Scalia and Thomas having attended a conservative strategy session hosted by Koch Industries last year.

Maybe we’ll all be very pleasantly surprised, but by any reasonable measure, can anyone have confidence in Scalia’s and Thomas’s objectivity?

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • Ian A on November 15, 2011 9:31 AM:

    Everyone can have confidence in Scalia's and Thomas's objectivity -- a complete confidence that they have none!

  • Hedda Peraz on November 15, 2011 9:32 AM:

    The Constitution is a complex and nuanced document. The justices are merely seeking learned council on its interpretation.

    Would you rail against your heart surgeon seeking collegial advice?

  • c u n d gulag on November 15, 2011 9:36 AM:

    C'mon, Scalia and Thomas can't be bought for the price of something like a nice dinner!
    They may be easy, but they ain't cheap!

    It takes a least the high six-figures in a Cayman Islands account for Scalia's vote, and a huge raise in Ginny's salary for Clarence to mimic his vote. Though, he'll throw in not asking any questions for free.

    Their Justice isn't blind! It knows a good deal when it sees one. And what's a little finger on the scale amongst friends?

  • Vokoban on November 15, 2011 9:37 AM:

    "Would you rail against your heart surgeon seeking collegial advice?"

    By visiting a butcher? Actually: yes!

  • Bob M on November 15, 2011 9:41 AM:

    As a conservative, I hate American corruptos abusing the conservative brand. Call them radicals, extremists or just plain corrupt.

    Heart surgeons collegial? What nonsense! Heart surgeons are made to be non-collegial. The corrupt always seek collegial advice. Check with your local Mafia.

  • Bo on November 15, 2011 9:44 AM:

    Yeppers. Frick and Frack are quite a pair!
    Of course, the reason they continue to do these stupid things is completely different.
    Tony does it because he thinks he is above all codes of law and conduct.
    Clancy, on the other hand, is frankly just too dumb to even have a clue. I doubt that the dim-wit has one ounce of self-awareness.

  • SadOldVet on November 15, 2011 9:49 AM:

    Scalia and his shadow Thomas were honorees and speakers at this forum. Alito also attended. That is three openly suspect supremes to rule on the ACA.

    Gee, why did the supremes pick only a ruling against the ACA as the basis of their hearings? Could it be that Roberts, Scalia, Alito, and Kennedy have already determined how they are going to decide and are now just looking for justifications for the ruling? We know that Thomas is going to vote to protect family income by declaring ACA 'unconstitutional' to the extent that it becomes as invalid as the Koch brothers want!

  • T2 on November 15, 2011 9:51 AM:

    I'm a lot more concerned with Thomas' wife being a member of a political organization directly connected with efforts to repeal the ACA. This would be a reason for recusal in any court in the land.....but not for the activist GOP Supremes.

  • Fleas correct the era on November 15, 2011 9:53 AM:

    by any reasonable measure, can anyone have confidence in Scaliaís and Thomasís objectivity?
    --------

    Well, no. But how is it that this notion crept up on you only now?

  • bigtuna on November 15, 2011 9:55 AM:

    They were going to vote against it anyway, so who cares. The fix is in on those two. No story here. move along.

  • ComradeAnon on November 15, 2011 9:58 AM:

    I imagine that Boehner & Koch (Koch's Boehner?) have a great deal of confidence in the Supreme Court.

  • DRF on November 15, 2011 10:01 AM:

    I'm certainly no fan of Thomas or Scalia, but the suggestion that appearing at a Federalist Society dinner is some kind of significant conflict of interest is absurd. First, there's no question that both Thomas and Scalia are genuine committed conservatives. Second, the Federalist Society dinner undoubtedly had many sponsors, so the participation of one law firm and some industry patrons can't seriously be a corrupting influence on the Justices' votes. Third, I'm not aware that either Thomas or Scalia received a financial or other material benefit from their appearance; if they did not, then this can hardly be seen as corrupting them.

    Look, they are dyed-in-the-wool conservatives and they hang out with other conservatives and attend conservative functions. That doesn't represent a conflict of interest, and posts of this sort don't serve any useful purpose other than to allow readers to post snide comments.

  • Basilisc on November 15, 2011 10:03 AM:

    It's really striking the way Democrats try to make honest, good-faith efforts to achieve realizable goals within the parameters of the system (e.g. the Supercommittee), while Republicans just run around flouting the rules and grabbing advantages every way they can (e.g. the Supreme Court, restrictions on voting rights, blatantly dishonest campaign ads paid for with untraceable money ...).

    I bet at events like that Federalist Society dinner they have trouble finishing their meals because they just keep laughing at how easy it all is.

  • Diane Rodriguez on November 15, 2011 10:09 AM:

    What possible reason would there be to be concerned about inspiring the nation to confidence in your conduct and judgement as a Supreme Court Justice? Thomas and Scalia are true believers, clearly infallible and have a forum on high to that is untouchable. Thomas is likely immune from impeachment based on his tag line "high tech lynching". Scalia is well liked by his colleagues and is considered a fine legal mind. The solution may lie in applying the rules of conflict of interest in the Federal Appeals Courts to the the Supreme Court which I believe requires a constitutional amendment.

  • flyonthewall on November 15, 2011 10:22 AM:

    Last night Al Sharpton played a recording with Thomas saying he and his wife "believe in the same things". Since he already agrees with his wife, he will vote against the ACA, since that is her position.

  • Zach on November 15, 2011 10:29 AM:

    Being featured speakers at an ideological group's fundraiser is the kind of behavior that would be against the rules for lower-court judges, but the Supreme Court doesn't have to follow the Code of Conduct for U.S. Judges.

    My organization has a short documentary film with background on the issue and details on Scalia, Thomas, and Alito engaging in behavior that certainly creates the appearance of impropriety. On YouTube: http://www.youtube.com/alliance4justice

  • T2 on November 15, 2011 10:38 AM:

    most of these comments point out one true thing. Like him or not, it is vital that Obama is re-elected. Several SC members are ready to retire very soon, and if a Republican gets in the WH, we will see the Supreme Court become a 6 to 3 vote Rubber Stamp for the Koch Brothers and the Hard Right Conservative minority in our nation for decades to come. They will systematically dismantle our hard fought rights and this nation will be back in the dark ages - a nation of Very Rich and very poor.

  • Zorro on November 15, 2011 10:39 AM:

    Does anyone even doubt for a second that the RATS on the USSC will vote to overturn the ACA? In fact, based on how they took narrow cases in Heller v. District of Columbia and Citizens United v. FEC to create new rights out of whole cloth, I predict that the ruling against the ACA will also rule Medicare and Medicaid unconstitutional as well.

    -Z

  • beejeez on November 15, 2011 10:46 AM:

    And if Justices Sotomayor, Kagan and Ginsberg were frequent honorees and guests of the Socialist Workers Party jamboree, nobody should have a problem with that, right?

  • POed Lib on November 15, 2011 10:59 AM:

    @beejeez:

    Have they been, or is this more hypothetical made up bullshit that you conservamorons are always coming up with?

    Thomas, who should have his law license revoked, signed a statement falsely for 6 years. He stated and signed that he had no income for 6 years outside of the SC salary. Meanwhile, his wife was making 500K/year as a rightwing lunatic partisan. He should be impeached, and if I were in the House, he would be.

  • jjm on November 15, 2011 11:08 AM:

    These justices are unworthy of their positions.

    The Federalist Society planned the coup of conservatives taking over the federal courts including the Supreme Court for decades. They did it openly, although it was hardly known to the public.

    Being ON the court has in no way altered the strict conservatism of these 2 judges--unlike many justices whose views evolved over years of work. No, the very definition of conservative--to be pigheadedly stubborn and refusing to change your views even in the light of new evidence or new circumstances--is precisely applicable to Scalia and Thomas.

    In other words, these two, at least, are prejudiced and biased from the get-go, and thus unworthy of even being judges at all. The fact they are proudly, loudly and publicly displaying their allegiance to the Federalist Society conservatism speaks volumes about their attitude toward the law, and it is out of the mainstream view of what the law is or ought to be.

  • JR in WV on November 15, 2011 12:02 PM:

    If there isn't an enforceable code of ethics for Supreme Court Justices, then it is up to the Congress to enforce ethics by pushing obviously partisan judges out of their position on the bench.

    I realize that the current chances of Congress having the stones to fire judges who are obviously bought and paid for are so close to zero as to make no difference. But regardless of the incompetence of current congressional leaders, this is how it should work.

    Thomas didn't even file required financial disclosure documents, obviously because they would reveal his wife's huge profit from working against health care for all Americans.

    Think of that: Working Against Health Care for all Americans! How despicable! Working to harm children, for money, big money!

    And making big money for it, too. That should be a firing offense, really.

    I can't even discuss Scalia, without making an ass of myself. But Thomas is far from the worst, at least he's smart enough to keep his mouth shut on the bench.

  • Marc on November 15, 2011 12:05 PM:

    Bravo DRF. Both Scalia and Thomas are conservatives who vote their conservative biases.

    What is distressing to me is that they seem to not see them as bias. For example Scalia's thoughts on the meaning of a cross.

  • square1 on November 15, 2011 12:12 PM:

    Does everybody who is criticizing Scalia and Thomas for this think that other judges don't do this? Judges appear at various legal functions all the time. And, yes, sometimes the functions are hosted by legal firms who represent clients before those same judges. Criticize the practice if you will, but Scalia and Thomas are not pushing the ethical envelope here.

    Now, both Scalia and Thomas have, IMO, pushed the boundaries of propriety at times. For example, much more legitimate questions arise when looking at Thomas' wife's tea partier relationships and arguable financial interest in opposing ACA. That is the appearance of a conflict of interest.

    But a conservative justice speaking to a conservative legal association? Sorry. I'm not buying into the indignation over it.

  • samsa on November 15, 2011 12:12 PM:

    You guys are completely mistaken.

    The original intent of the framers of the constitution was that the majority of the Supreme Court should be a wholly owned subsidiary of the most right wing political party.

  • square1 on November 15, 2011 12:19 PM:

    Actually, I want to modify my comments because it was a fund-raiser. That is improper. Still. Is anyone going to seriously suggest that Scalia and Thomas are going to do anything different because they attended this event.

    I have little respect for either justice, particularly when it comes to cases with any whiff of politics about them. That being said, Scalia and Thomas aren't taking marching orders from the Federalist Society. Scalia and Thomas are going to do what they want to do.

    I'm not convinced that they are going to strike vote to the law down. Again, not because I think they are above politics, but because they may take a longer view on some of these issues.

    But whatever they do will be the same as they would have done, Federalist Society dinner or no.

  • Anonymous on November 15, 2011 12:22 PM:

    T2 on November 15, 2011 9:51 AM:

    I'm a lot more concerned with Thomas' wife being a member of a political organization directly connected with efforts to repeal the ACA. This would be a reason for recusal in any court in the land.....but not for the activist GOP Supremes.

    I second the motion.

  • johnny canuck on November 15, 2011 12:29 PM:

    EVERYONE SHOULD HAVE A LOOK AT THIS VIDEO. Yes, I think it should be shouted from the rooftops. It is excellent. Thanks Zach.

    Zach on November 15, 2011 10:29 AM:

    Being featured speakers at an ideological group's fundraiser is the kind of behavior that would be against the rules for lower-court judges, but the Supreme Court doesn't have to follow the Code of Conduct for U.S. Judges.

    My organization has a short documentary film with background on the issue and details on Scalia, Thomas, and Alito engaging in behavior that certainly creates the appearance of impropriety. On YouTube: http://www.youtube.com/alliance4justice

  • Winston Smith on November 15, 2011 2:41 PM:

    Back in, I think it was, January of this year, Clarence Thomas filed amended financial disclosure statements for several previous years because the original statements failed to disclose his wife's sources of income. If I remember correctly, her income was listed on the earlier forms as zero.

    How is that amended filing anything other than an admission of the prior commission of serial felonies under 18 U.S.C. 1001?

    If only the Justice Department had he testicular fortitude to prosecute Uncle Thomas!

  • CDWard on November 16, 2011 2:47 AM:

    Thomas' wife was working for the Bush transition team when he voted in favor of Bush in Bush v. Gore-For that alone he should have been impeached a long time ago.

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