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Litigation

: The Gavel

Recusal Issue at Supreme Court is Highlighted

By Peter Hardin

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The watchdog group Common Cause grabbed plenty of media coverage for questioning whether Justices Antonin Scalia and Clarence Thomas should have stepped aside in voting on the Supreme Court’s landmark Citizens United case.

Common Cause trained a spotlight on a topic that doesn’t get a lot of media attention — recusal by Supreme Court justices — while it also drew mixed reviews for its petition to the U.S. Justice Department.

Common Cause seeks (see Gavel Grab) an investigation of whether a conflict had existed for either justice, and if it did, for an effort to vacate the 5-4 ruling of one year ago. The group said it appeared the justices had participated in political strategy sessions with corporate leaders “whose political aims were advanced by the decision.”

Election law scholar Rick Hasen was skeptical the appeal to the Department of Justice would succeed, Politico reported. ?Justice Scalia has refused to recuse himself from cases involving a far closer relationship,? Hasen said. He noted the lack of evidence that the justices participated in political strategy meetings. Hasen added:

?I am a big critic of the Citizens United case. I would love to see it reversed.

?But this approach seems both unlikely to yield the desired result of seeing the case overturned and appears to be an unwarranted attack on the ethics of the Justices.?

Common Cause held a telephone conference call with reporters that was joined by Stanford Law School professor Deborah Rhode and George Washington University Law School professor Jonathan Turley. The Common Cause petition highlights a lack of ethics enforcement at the Supreme Court, they said, according to a Blog of Legal Times post.

“The rules are left to the accused,” Turley said. “They become their own judges.”

Turley called the charges leveled by Common Cause “disturbing.” He also said, ?At a minimum, the Common Cause letter should raise questions about what we need to do, so there isn?t this vacuum at the Supreme Court when it comes to judicial ethics,? according to a Christian Science Monitor article.

Kathy Arberg, the high court’s spokesperson, said the two justices had gone to California to speak to a Federalist Society dinner that was sponsored by Charles and Elizabeth Koch. The justices didn’t participate actively in Koch strategy meetings, she said, according to a Los Angeles Times article.

Common Cause’s petition mentioned news reports last fall saying ?that Justices Scalia and Thomas have attended one or more invitation-only retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the Citizens United decision.?

Both Justice Scalia and Justice Thomas voted in the 5-4 majority in Citizens United, lifting key restraints on corporate political spending.

On the anniversary of the Citizens United v. Federal Election Commission ruling, a NPR article was headlined, “A Year Later, Citizens United Ruling Reshapes Politics.” David Bossie, president of the Citizens United group that brought the legal case, and Theodore Olson, lead counsel for the group, wrote a commentary in the Washington Post entitled “How the Citizens United Ruling Freed Political Speech.”

In the American Constitution Society blog, a commentary by Fred Wertheimer of Democracy 21 was headlined, “Jan. 21, 2011: A Day to Keep Moving Forward to Mitigate the Enormous Damage of the Citizens United Decision.” Rick Hasen had a commentary at the same blog. It was entitled, “Justice Kennedy’s Mistaken Citizens United Vision and the Lurch Toward Campaign Finance Deregulation.”

Full post as published by The Gavel on January 21, 2011 (boomark / email).