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Clarence and Ginny Thomas, the Go-To Folks for Liberty

Lifted from an e-mail in reaction to two links
here and here I sent to Beverly Mann concerning Judge Clarence Thomas. (e-mail slightly revised for clarity)

by Beverly Mann

Clarence and Ginny Thomas, the Go-To Folks for Liberty

Hi Dan,

I’m obviously very supportive of the political goals of both of the organizations whose web sites you’ve pointed me to and asked my opinion about concerning their efforts against Clarence Thomas. But the petition demanding impeachment of Thomas for ruling in favor of Citizens United because in 1991 that organization sponsored television commercials urging Thomas’s confirmation by the Senate strikes me as ridiculous. And not just because the House, which would have initiate an impeachment process and then vote articles of impeachment, is in Republican control.

The problem with Thomas’s participation in the Citizens United case isn’t that the organization that filed the lawsuit challenging the constitutionality of some of the McCain-Feingold election-law restrictions happened to be Citizens United. Citizens United actually challenged a regulation in that law that had nothing to do with campaign contributions. It was the Court itself (the five-member majority, obviously) that reached out on its own to address the constitutionality of the restrictions on corporate campaign contributions.

The problem is that Koch Industries, the most prolific and pervasive of corporate campaign contributors in federal and state election campaigns, and the Koch brothers, were huge players in this controversy. The purpose of the Koch campaign contributions is to affect the outcome of elections in order to affect enactment, repeal or enforcement of a vast array of environmental laws and regulations that impact their immense oil, gas, manufacturing, ranching, finance and commodities trading businesses. (I got those listings from Wikipedia.) Scalia and Thomas attended and spoke at Koch-sponsored four-day law conferences at luxury resorts. Their expenses were paid by the rightwing bar group, the Federalist Society, which receives substantial donations from Koch Industries and which may have actually received dedicated funds for those expenses from Koch Industries. If so, Scalia and Thomas may not have known of this.

In any event, the decision by these two to participate in the Citizens United decision is not an impeachable offense. What might be an impeachable offense, in my opinion, is Thomas’ failure to comply the disclosure statute; he lied on his disclosure statement, for at least six years, in what I think is a significant respect. As I wrote last week, that may violate a criminal statute, although that is not my area of expertise and I don’t know whether it does or not. And if it does, I hope he is eventually prosecuted for it.

The information that Thomas withheld was that his wife was paid a very substantial amount of money during those six years by rightwing interests. Comments he made in a speech at a Federalist Society function last weekend hint, if I understand the comments correctly, that he withheld that information in contravention of federal statute as part of what he considers his and his wife’s crusade for Liberty in the name of the Constitution, and that he believes—and he made this clear in that speech, as the speech was reported—that he and his wife are the True Arbiters of the meaning of that word as the Constitution intends it; no one else need apply. They are the liberty messiahs, so they are entitled to violate the law, and certainly ethics codes, in the service of their holy mission. And make no mistake. This is a holy mission.

Here are quotes from a Politico story about the speech:

Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”
He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.
“You all are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties,” he said, according to a partial recording of the speech provided to POLITICO by someone who was at the meeting.
“And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.” …

At one point Thomas recognized his wife in the audience and suggested she was being targeted for her beliefs, telling the audience, according to the recording, “my bride is with me, Virginia Thomas. And some of you may know her. But the reason I bring that – specifically bring it – up is there is a price to pay today for standing in defense of your Constitution.”

Thomas said his wife “started her organization to give 24/7 every day in defense of liberty,” and said he shared her principles.

Yes, that’s right. Thomas thinks it’s his critics who seem bent on undermining the Court as an institution and that could erode the ability of American citizens to fend off threats to their way of life.

Beverly maintains her own blog The Annarborist

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A Scalia Tea Leaf on the Healthcare Law?

by Beverly Mann
from The Annarborist

A Scalia Tea Leaf on the Healthcare Law?

Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.

—Antonin Scalia, yesterday, dissenting in Michigan v. Bryant

The tea-leaf-reading on how two or three of the justices will vote on the constitutionality of the PPACA has become a bit tiresome, I think, but I’ll engage in it here anyway.

As most people who’ve followed the issue closely know, in 2005 the Supreme Court held (in a case called Gonzales v. Raich) that Congress had the authority under the Commerce Clause to criminalize the production and use of marijuana even when the marijuana is home-grown and used only by the grower, and therefore never enters interstate commerce, because marijuana grown for the personal use can have a substantial effect on the marijuana trade in interstate commerce.

Also as people who’ve followed the PPACA-constitutionality tea leaf-reading debate know, Scalia wrote a separate opinion in that case concurring in the majority’s result. The Commerce Clause alone, he said, does not give Congress that authority, but that Clause coupled with the Necessary and Proper Clause—the clause that gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” including the power to regulate interstate commerce—do.

A fine distinction that only constitutional law nerds think about, but it is the distinction that is at the heart of the debate about the constitutionality of the PPACA.

Michigan v. Bryant is not a Commerce Clause case. It is a Sixth Amendment Confrontation Clause case. The Sixth Amendment gives criminal defendants certain specific rights, including the right to confront (i.e., cross-examine) the prosecution’s witnesses under oath at trial. And seven years ago, in a case called Crawford v. Washington, the Court reversed a 1980 opinion that had carved out a chasm of an exception to that right by allowing the admission of hearsay statements if the statement bears “adequate ‘indicia of reliability.’ ”

Scalia wrote the Crawford opinion. Since then Scalia has been at the forefront of the Court’s expansion of Crawford to kill prosecutors’ use at trial of various types of hearsay evidence, and apparently had been able to run interference internally within the Court to kill attempts by prosecutors to overturn Crawford at least in part. Until yesterday, when he lost that battle to, of all justices, Sonia Sotomayor.

Scalia, in a dissent eloquent both in its logic and its passion, masterfully deconstructs Sotomayor’s opinion. I recommend it to anyone who’s interested in issues of this sort or who wants to see Scalia in a context beyond the sort of public caricature he has, seemingly deliberately, become. That opinion is very understandable to non-lawyers, I think.

But its importance to the issue of the constitutionality of the PPACA is not just the paragraph I quoted from it but that he wrote it in defending a constitutional right dearer to the political left than to the political right. The paragraph is the second-last one. The very last one says:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.


Scalia’s dissent is here. Sotomayor’s opinion is at here.

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Ethics code for the Supreme Court

by Beverly Mann

Washington Post writer R. Jeffrey Smith posted a comment to my post yesterday, providing a link to an article by him published in the paper about a letter that a large ad hoc group of law professors sent to the House and Senate Judiciary committees yesterday recommending legislation that would extend to the Supreme Court justices the code of ethics that applies to federal appellate and trial-court judges. The code prohibits certain conduct and requires recusal (nonparticipation by the judge in deciding a particular case or set of cases).

I’m grateful for the law professors’ letter, for the link to the article, and for Mr. Smith’s reportage, which gives extensive background and some details that I didn’t know, especially the financial contributions that the Koch brothers gave in 2007 and 2008 to the Federalist Society, the rightwing bar group that paid the expenses of justices Thomas and Scalia, and Thomas’s wife, for their four-day stays those years at a luxury resort where the Kochs were sponsoring a seminar at which these justices spoke.

The article quotes a Federalist Society official as confirming that the group did pay these justices’ expenses, but hints at the suspicion that the Kochs simply laundered the expense money through that organization. “Asked why Thomas’s reimbursement for a single speech stretched to four days, [the official] said, ‘If you pay for someone to go out, you don’t care when they come back.’ ” Which is true, unless you’re paying for the someone’s accommodations in the interim. Or unless you have reason not to care that you are.

The article notes that the ethics code that applies to the lower-court federal judges and that the law professors want made applicable to Supreme Court justices includes a prohibition against accepting travel reimbursements from outside groups if they “give the appearance of influencing the judge” or “otherwise give the appearance of impropriety.” But the first part of that strikes me as a tautology, and strikes the Koch and Federalist Society officials quoted in the article as itself a loophole, when the judge’s handling of a case will never really be in play because the judge’s ideology is so rigid, his or her sympathies so utterly controlling, that the judge is not really a judge but instead a proxy in a robe.

The issue of the expenses-paid attendance by a slew of federal judges at annual several-day-long seminars at luxury resorts, sponsored by the likes of the Koch brothers, on environmental-law issues, first gained public attention several years ago when a public interest group actually tracked those judges’ later rulings in environmental-law cases and found that several of these judges not only ruled against the environmentalists but that they had used, apparently nearly verbatim, the legal arguments provided at the seminars. In those instances, there appeared to be the genuine influencing of the judge. And there certainly was the appearance of it.

But with respect to the Supreme Court justices, what’s really most at issue, I think, is the second part of that prohibition—the “otherwise give the appearance of impropriety” part, whether regarding reimbursements for travel expenses or non-reimbursed appearances and speaking engagements. The article mentions Justice Alito’s attendance or speaking engagements at two annual fundraising dinners sponsored by the extreme rightwing magazine the American Spectator, and notes the ethics code that the law professors want made applicable to Supreme Court justices prohibits judges from participating in fundraising activities or “us[ing] or permit[ting] the use of the prestige of judicial office for that purpose.” The article says a reporter at one of the events quoted Alito as saying his attendance was not important. So I guess he used or permitted the use of the prestige of his office for that purpose just a little bit. Which still would violate the code, if the code applied to him.

What I think these justices miss, or probably don’t miss but also don’t care about, is that when they engage in this sort of thing they’re effectively altering the nature of their office itself. They’re conceding to themselves that their vote in certain cases is not a true judicial vote because it is not based on the legal arguments at all.


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