A Shockingly Clear Case for Reform

Last night in Washington, the conservative Federalist Society held a black-tie fundraising dinner with featured speakers Antonin Scalia and Clarence Thomas.

The New York Times took note:

If they were mere federal judges they could not have accepted the invitation, because Canon 4(C) of the Code of Conduct for United States Judges prohibits personal participation in fundraising activities. It states that judges should not “solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.”

It’s an excellent rule and it would apply to the Federalist Society’s $175 a plate, sold-out dinner, which is clearly a fundraiser, with Justices Scalia and Thomas the star attractions in the black-tie optional event billed as “A Celebration of Service.”

The problem is that Supreme Court justices are not bound by Canon 4(C).

There's nothing stopping the Court from voluntarily adopting the same Code of Conduct that binds every other federal court, and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

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In Making Noise Over Kagan, Republicans Gloss Over More Serious Ethical Problems

On June 24, 49 Republican representatives sent a letter to the House Judiciary Committee Chairman Lamar Smith (R-TX), requesting an inquiry into Justice Elena Kagan’s ability to rule on the constitutionality of the Patient Protection and Affordable Care Act (PPACA). In response, Rep. Smith sent a letter to Attorney General Eric Holder, demanding documents pertaining to Justice Kagan’s role in the PPACA while she served as Solicitor General.

The partisan purpose of this inquiry is exceedingly transparent: House Republicans are trying to force Justice Elena Kagan’s recusal from an expected Supreme Court hearing of the challenges to the health-care law. This is politics at its worst and shows that the radical right is prepared to use any means necessary to rig the outcome in the Supreme Court.
This is not the first attempt that has been made by Republicans to smear Justice Kagan and prevent her from hearing the much-awaited case. CNSNews, a right-wing news outfit, tried the same tactic last year when it filed a Freedom of Information Act (FOIA) with the Solicitor General’s Office demanding documents relating to Kagan’s participation in the health care legislation.
A review of the documents released by the Solicitor General in response to this request makes one thing clear: there is no evidence to suggest that Justice Kagan had any personal participation in the health-care case that would warrant her recusal. In fact, Justice Kagan has distinguished herself as being particularly interested in avoiding the appearance of impropriety, having already recused herself from over 20 cases in her first term on the bench.

House Republicans may have another motivation for these partisan inquiries directed at Kagan: they divert attention from more serious ethical problems that face the Supreme Court.

First, though Justice Kagan is not one of them, there actually are justices on the Court who have demonstrated a stubborn reluctance to recuse themselves, even when their recusal was clearly warranted. In 2004, Justice Scalia insisted on participating in Cheney v. United States, despite having a close personal relationship with the defendant More recently, reports have highlighted the involvement of Justice Thomas' wife in conservative groups that have an active interest in high-profile cases -- including the very same challenge to the health-care law anticipated by the House Republicans in their letter to Rep. Smith.

By focusing on Justice Kagan in particular, Republicans are clearly attempting to draw attention away from the justices who actually do deserve closer scrutiny. At the very least, Republicans hope to establish a "both sides do it" media narrative to make other challenges appear every bit as partisan as their own.
More important, however, these inquiries into Justice Kagan’s behavior gloss over the fundamental, non-partisan problem: Supreme Court justices are not subject to the same ethical rules as all other federal judges and are allowed to follow (or ignore) the ethical rules as they see fit. Both Justices Scalia and Thomas have shown that the self-policing requirement is inadequate. Without fundamental change to the ethical rules that pertain to Supreme Court Justices, these inquiries – whether warranted or not – will continue.

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New York Times Addresses Supreme Court Ethics

Today's New York Times carries an editorial on judicial ethics that begins:

The court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians. Yet, in several instances, justices acted in ways that weakened the court’s reputation for being independent and impartial.

Could the editorial board responding to this op-ed from this week?

This, recall, was the term in which... Justices Scalia and Clarence Thomas each drew fire for attending separate meetings hosted by the conservative Koch brothers. Justice Thomas has also been made to defend the political activism of his wife, Virginia, and, in recent weeks, faced questions about his entanglement with Harlan Crow, a benefactor of conservative causes.

Or was it in response to their reporting earlier in the month?

The [Harlan Crow] project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

There is no mandatory code of conduct for Supreme Court justices, but that doesn't mean they don't have to follow the Ethics in Government Act of 1978, which requires disclosure of income, gifts, reimbursements, and certain financial interests of spouses. As more and more information comes to light about Justice Thomas' relationship with conservative Republican donors and fundraisers, questions about his adherence to the law continue to surface.

Click here to read the rest of today's New York Times editorial.

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