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A petition has been filed with the Justice Department calling for investigations of Justices Scalia and Thomas for conflicts of interest, suggesting they be disqualified from the landmark Citizens United case, in which the court last year lifted a ban on corporate spending on political campaigns. The petition cites connections to conservative financier Charles Koch.

US Supreme Court Justice Clarence Thomas. (photo: Getty Images)
US Supreme Court Justice Clarence Thomas. (photo: Getty Images)



Scalia and Thomas' Retreat With Koch

By Eric Lichtblau, The New York Times

21 January 11

 

hen the conservative financier Charles Koch sent out invitations for a political retreat in Palm Springs later this month, he highlighted past appearances at the gathering of "notable leaders" like Justices Antonin Scalia and Clarence Thomas of the Supreme Court.

A leading liberal group is now trying to use that connection to argue that Mr. Scalia and Mr. Thomas should disqualify themselves from hearing campaign finance cases because they may be biased toward Mr. Koch, a billionaire who has been a major player in financing conservative causes.

The group, Common Cause, filed a petition with the Justice Department on Wednesday asking it to investigate potential conflicts by Justices Scalia and Thomas and move for their disqualification from the landmark Citizens United case, in which the court last year lifted a ban on corporate spending on political campaigns. Common Cause also cited the role of Mr. Thomas's wife, Virginia Thomas, in forming a conservative political group opposed to the Obama administration as grounds for his disqualification.

The petition is a new tack for opponents of the court's decision in the Citizens United case. Common Cause, by its own acknowledgment, faces a difficult task in getting the justices' to remove themselves from the case and seeking to have the Citizens United decision itself vacated.

"We're treading in new territory here for us," said Arn H. Pearson, Common Cause's vice president for programs. "But a situation like this raises fundamental questions about public confidence in the Supreme Court."

Officials at Koch Industries, which Mr. Koch leads, did not respond to e-mails and a phone call Wednesday seeking comment on the petition. A spokeswoman at the Supreme Court declined comment.

Supreme Court justices have wide latitude in deciding whether to recuse themselves from hearing cases. In one of the more well-known examples in recent years, Justice Scalia refused to remove himself from hearing a challenge to Vice President Dick Cheney's energy task force after he had gone duck hunting with Mr. Cheney in 2004.

"It's a steep uphill climb for Common Cause, but not an insurmountable one," said Steven Gillers, who teaches legal ethics at New York University. At the very least, he said, the group's petition could force a "public airing" of questions surrounding the two justices' past appearances at the Koch retreat and their connections to the group.

Still unknown, for instance, is exactly when Justices Scalia and Thomas appeared before the group for its invitation-only retreat, which is aimed at promoting political strategies for economic freedom, or whether they were reimbursed for their expenses.

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch's group between 2008 and 2010, when the court was considering aspects of the Citizens United case, "it would certainly raise serious issues of the appearance of impropriety and bias."

Mr. Koch and his brother, David Koch, were among the main beneficiaries of the Supreme Court's decision in the Citizens United case and became a favorite target of liberal groups, which accused them of effectively trying to buy the election.

The political action committee for Koch Industries, a Kansas-based energy company, spent $2.5 million in last year's elections, according to the Common Cause complaint. Americans for Prosperity, a conservative group that the Koch brothers founded, is believed to have spent tens of millions more in the campaign to support conservative candidates.

 

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+70 # MARC HOOD 2011-01-21 23:45
There is more than ample good cause for the Justice Dept.to conduct a truly thorough investigation of the number and frequency of ALL brief or long meetings of Justices Thomas and Scalia with Charles or David Koch and/or with representatives , employees or associates of Koch Industries, Americans for Prosperity, Citizens United or the U.S.Chamber of Commerce, as well as the total time span, earliest to most recent, of all such meeting(s). There is NO reason whatever for failing to take the sworn testimony of each of the two justices, and these actions should be commenced sans delay by counsel whose competence matches that of Andrew Cuomo. We should shout our thanks to Common Cause and the New York Times. MARC HOOD
 
 
+62 # angelfish 2011-01-21 23:48
It seems to me that if the accusations should prove to be true, these two "Justices" should be impeached/remov ed from the Bench. How sad that even our Supreme Court is vulnerable to undue influence by unscrupulous BIG MONEY!!! DISGRACEFUL!!!
 
 
+26 # maddy 2011-01-21 23:54
Fred Koch helped the Bolshrviks overthrow USSR, Russia to communism, Koch like German leader of 1930& his Policies, tried with the A.L.L. overthrow the United States in 1934, created the fascist John Birch Society, his SONS- KOCH brothers the fascist Libertarian Tea Party to overthrow our goverment. Another Germany in 2012.
 
 
+4 # Hendrik 2011-01-22 07:20
"Fred Koch helped the Bolshrviks overthrow USSR".

Say what?
 
 
+23 # kaythegardener 2011-01-22 01:23
It's long time overdue to start some real LEGAL INVESTIGATIONS into possible corruption in the upper levels of the Judiciary...& find out how long that they have been mere puppets for the corporate bigwigs, just as in the Robber Baron era...
 
 
+11 # isafakir 2011-01-22 03:15
with religion and truth exclusively on their side and the backing by the richest of the rich, why bother with niceties of the law when by breaking it they can change law to their personal private liking. it's no different than a Pecos hanging judge who knows what's right but nobody else does, so they hang with their pals and hang those who aren't.
 
 
+25 # Ralph Averill 2011-01-22 03:22
There may be a fundamental conflict of interest here, perhaps making it impossible for Common Cause, or anybody else, from resolving the issue. Should any court rule that there indeed is an issue of bias on the part of Justices Thomas and Scalia, the ruling could be appealed to.... the Supreme Court. Would the justices be forced, legally, to recuse themselves from that decision?
It seems to me, given Obama's very public comments on the Citizens United decision, he should direct the Justice Dept. to pursue this issue immediately, with all vigor. Given his recent history of cowtowing to corporations, I'm not optimistic.
 
 
+4 # Sukumar 2011-01-22 20:33
No; the justices can CHOOSE to recuse themselves; nobody can FORCE them to do so. The only legal recourse is impeachment.
 
 
+20 # Joe Steel 2011-01-22 04:19
This is dismaying. Americans like to believe their courts are apolitical. Scalia and Thomas' frequent association with political actors, and extremists, at that, is evidence to the contrary. Even if they're not taking orders from the principles, associating with them implies an ordering of perspectives.
 
 
+5 # EDP 2011-01-24 05:15
Quoting Joe Steel:
Americans like to believe their courts are apolitical.


Our judiciary has not been apolitical since the Right embarked on a mission to seed it with 'their' judges. They have succeeded - and this Supreme Court is a testimony to that success. As usual, the rhetoric about 'activist judges' has come solely from the Right, aimed at the Left,
a tactic they use to distract the all-to-easily distracted media and public. We have neither an apolitical judiciary nor a free press at this point. A disaster for any country which believes itself to be a democracy...
 
 
+38 # hondo 2011-01-22 04:45
These two justices are a discrace to the Court. Their pious prattle to the concept of "original intent" both in their decisions and in their public pronouncements are nothing more than pure drivel. G.H.W. Bushes' appointment of Uncle Thomas was a farce and and Thomas will go down in history as one of the most incompedent justices ever to sit on the Court. If evil exsists Scalia will occupy the position of evilist. He is devoid of scruples and has showwn himself to be an enemy of the people and such a good friend of money.

They elected Bush II so what more is there to say.
 
 
+4 # Mitchell Jon MacKay 2011-01-22 05:18
Koch family affiliations and allegations aside, the US Supreme Court is a selected body, not an elected one. There is only one route to that office, namely the then President of the US as delineated in the Constitution, which further states that those selected "shall hold their offices during good behaviour" [sic]. Abiding by that principle the "insider trading" issue suggests less than "good" behavior if we dredge the said allegations. Of course even presidents display that ignominious distinction which indicates fallacy in the origional constitutional design. i.e. the USSC members could more effectively be elected than selected.
 
 
+21 # granny 2011-01-22 05:58
Clarence Thomas's past bad behavior should have been enough reason for him NOT to be on the SC in the first place. And the Scalia/Thomas insider actions with Koch and his band of religious thugs should not be a major surprise. What is surprising is that they keep getting away with their high misdemeanors, and nobody does anything about it. Talk about banana reppublicanism!
 
 
+11 # Hendrik 2011-01-22 07:27
No banana republicanism: rather, an increasingly faster slip-sliding towards fascism.
 
 
+3 # Regina 2011-01-23 14:08
Thomas squeaked onto the Court 52-48, the lowest majority in our history. Maybe the Supreme Court-for-life is where we should require a super-majority of 60!
 
 
+12 # granny 2011-01-22 05:59
Is Clarence Thomas actually speaking in the Court? Not just sitting there looking like a second rate affirmative action hire?
 
 
+13 # Doctoretty 2011-01-22 06:45
It's about time! Where is the petition we can sign on this one?
 
 
+19 # phrixus 2011-01-22 07:07
This is all fantasy. This Justice Department is as corrupt and toothless as the rest of the American government. Case in point: although supposedly "independent" from the administration, Holder toes the line in not going after Bush/Cheney torture but is doing everything possible to hang Julian Assange. Holder and the Justice Department are just more corporate lackeys, bought and sold.
 
 
+11 # Robert Thompson 2011-01-22 07:23
If you are expecting the Justice Department under Holder to take any action at all, you are in for yet another disappointment from this administration.
 
 
+12 # giraffe 2011-01-22 07:34
We the people KNEW the 2011 Decision to allow BIG $$ contribute was NOT constitutional -- and we did NOTHING. Now the United States Supreme Court KNOWS that "WE KNOW" ----

Look at the timing. That Court "changed" the Rules to allow themselves to interfer with the State of FLorida's right to "count" their chads (whatever) -- and then after they put "W" in the W.H. that Court removed the "change". They made the 2010 ruling on an election year again to allow all those NEGATIVE TV campaigns decide the Congressional turn-over.

That Court appears to be run by Scalia -- and if the other Justices (excluding Thomas) can't figure out how to "check for corruption" -- then we will end up like Nazi Germany + USSR + Fascist Italy ruling us --- how much worse can it get?

A LOT worse! If Obama has the Power to investigate "he will" "he should"

It would certainly give him his only chance for a 2nd term. Can you imagine Palin or Newt as our President? We would all have to join a Christian Church quickly before we are sent to a "camp" or "worse"

G-d Bless (NO HELP) America -- nobody else will.

Can you see Germany coming over here to help take down a "Hitler-type" as the USA did for the Germans? UGHHHHH won't happen.
 
 
+5 # giraffe 2011-01-22 07:37
Go to a Yahoo BLOG and You'll See the Right talking nonsense on this issue. When "they come for them" there will be nobody to stand up for them.
 
 
+5 # Todd Williams 2011-01-22 08:08
How do we get rid of a Supreme Court justice? Is there a method for impeachment? Criminal trials? I really don't know.
 
 
+12 # giraffe 2011-01-22 08:14
Now that MSNBC got rid of Olberman - we won't get the real scoop on these scandelous situations. The Stupreme Court did "it" in 2000 (whanding the pResidency over to "W") and in 2011 (by handing "Congress" over to the right)

And Scalia has been known to rule without explanation on many cases BECAUSE HE CAN!!!!!!!!!!!! !!
 
 
+13 # LeeBlack 2011-01-22 09:47
Kudo's to Common Cause (are you supporting them?) for bringing this matter to the forefront so we are at least discussing the issue. Imagine if the 2000 election had not be determined by the S.C. - no Iraq; no 10 year war in Afghanistan; and the billions spent on it; strengthened, instead of weakened environmental regulation; no battle over weakening social security. The Supreme Court does effect our every day lives.

The Citizens United decision will enable a take over of elections and thereby the government of the oligarchy.

The very fact that Justices are involved in meetings "aimed at promoting political strategies for economic freedom'" should be an impeachable offense. I believe impeachment is the only step that can be taken to remove a justice.
 
 
+13 # brenda 2011-01-22 10:25
We had a word that was coined in the 60's that accurately describes Scalia and Thomas: PIGS, and very fat ones at that.
 
 
+5 # maxima 2011-01-22 15:11
What are you all complaining about? We have the best supreme court that money can buy!
 
 
+3 # lin96 2011-01-22 22:28
Having nominated Supreme Court Justice Thomas to the Supreme Court of Assholedom, I now feel his co-hort Supreme Court Justice Scalia also be added for his part in appointinng GW Bush as President, for partisan shaking of his head "no" during the President's last innaugeral speech, and for his blatent association, and that of Justice Thomas, with financiers, the Koch brothers. Can we work on changing the law that says a Supreme Court Justices can never be expelled from their positions?
 
 
+2 # Nelson B. Cone 2011-01-22 22:49
The US Supreme Court an impartial court of justice, a real oxymoron.
 
 
0 # Syacht 2011-01-25 12:16
I know that Common Cause will get a donation from me! In fact, if we each, every one of us, just sent them $10.00 with a thank you for taking this position it might make a fruitful impression. I am going to do that right now.
 

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