News Center

March 11th, 2011

Under Attack

By Nathan Tucker

In a coordinated attack, conservative members of the U.S. Supreme Court have recently come under fire by liberals in a blatant attempt to discredit the legitimacy of rulings with which they may disagree with.  As constitutional challenges to a number of President Obama’s policies mount, liberals are hoping to ensure favorable outcomes by pressuring several of the conservative justices to recuse themselves.

Citing alleged unethical conflicts of interests, 44 Congressional Democrats in February called on Justice Thomas to recuse himself from voting in any future Supreme Court decision on ObamaCare.  Going even further, a “watchdog group” called Protect our Elections has asked the Missouri Bar to disbar Justice Thomas.

The liberal group Common Cause has claimed that both Justices Thomas and Scalia should have recused themselves from the Citizens United (2010) campaign finance ruling.  They have requested an unprecedented investigation by the Department of Justice in hopes of vacating that decision so they can reargue the case before a Court in which the original majority, with two fewer members, would now be in the minority.

The basis for these allegations are so lacking in merit, however, that even some liberal lawyers are distancing themselves from them.  For instance, Jeffrey Toobin, the liberal legal commentator for CNN, said last month that “I don’t think there is even a specter of a conflict of interest” for Justice Thomas to rule on ObamaCare.  Michael Waldman, executive director of the liberal Brennan Center for Justice at New York University’s School of Law, called the calls by Common Cause for a DOJ investigation “meritless.”

Among their allegations, Common Cause argues that Justices Thomas and Scalia should never have participated in Citizens United because they both “participated in a political retreat hosted by Tea Party billionaire financiers Charles and David Koch, driving forces behind loosening restrictions on big money in politics.”

According to Supreme Court spokeswoman Kathy Arberg, however, neither justice was a participant in any closed door political session that may have taken place at the various legal forums they attended.  Additionally, these forums took place before the Citizens United case was even appealed to the Supreme Court, nor were either of the Koch brothers parties to the suit or financial supporters of the litigants.

As the Washington Post recently noted, liberal members of the Court have also appeared at events sponsored by liberal organizations.  For example, in 2004, Justice Ginsburg attended a forum cosponsored by the NOW Legal Defense and Education Fund, just two weeks after she had ruled in favor of the group which had filed a friend of the court brief with the Court.

Common Cause also alleges that Scalia should recuse himself from any future ObamaCare appeal because in “December he met in a closed-door session with Michelle Bachmann’s Tea Party Caucus, a group formed in large part to fight for the repeal of health-care reform.”  The event, however, was open to all members of Congress, and two liberal congressmen have attested that the justice’s comments dealt with separation of powers issues and were “pretty dry, actually.”

The 44 Congressional Democrats have also alleged that Justice Thomas must recuse himself from an ObamaCare appeal because his “failure to disclose [Mrs.] Thomas’s receipt of $686,589 from the Heritage Foundation, a prominent opponent of healthcare reform, between 2003 and 2007 has raised great concern.”  Though Justice Thomas has acknowledged and corrected this mistake, there is no basis for the assertion that Mrs. Thomas’ employment at the Heritage Foundation, several years before President Obama was even sworn in, would require the justice’s recusal.

While disagreements over judicial philosophy are a necessary component of our national discourse, political distortions aimed to discredit and intimidate justices is a threat to the credibility of an institution that, as Justice Thomas recently told a group of law students, is necessary “to protect your liberties.”

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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