With the definite shift to the right of the Roberts Supreme Court (of the U.S. = SCOTUS), there is revived interest in questions of conflict of interest, heightened by the fact that newly appointed Justice Elena Kagan has recused herself from nearly half of the new cases to be heard this term because of her connection to them as Solicitor General.
But it revives interest in the noted case of Antonin Scalia, who several years ago refused to recuse himself from a case involving Dick Cheney and his non-disclosure of those attending his meetings on energy policy (everyone knew it was predominantly oil company executives). Why did some think he should recuse? He had gone duck hunting with Cheney just weeks before the case was heard and had accepted a free ride with Cheney on his VP plane. Cheney was clearly the object of the suit and the defendant in the case.
This case publicized the fact that there is no appeal and no process to challenge a justice's decision not to recuse himself. It is simply left up to the individual justice, not even subject to formal review or consultation with other justices. Scalia, of course, famously delights in defying conventional wisdom and claiming that, of course, he exercises objective applications of the law without any influence.
Now comes another troubling case, this one involving Clarence Thomas because of his wife's political activism. She heads a non-profit 501(c)(4) group called Liberty Central which she characterizes as dedicated to opposing the leftist "tyranny" of President Obama and the Democratic Congress and to protecting the "core founding principles" of our nation. She claims that Liberty Central is going to become bigger than the Tea Party. Read between the lines, and it sounds like she has ideas of a third party, or perhaps replacing the Republican party.
Her husband's recent vote -- creating the 5-4 majority -- in the SCOTUS decision, that allows practically unlimited campaign contributions from groups such as Liberty Central without disclosing the donor-sources, certainly raises serious questions about conflict of interest, given that his wife is the founder and is paid for her work as the head of Liberty Central. And under the new rules its donors do not have to be disclosed. Not only did he help create this situation that benefits his wife's organization, but there is no way for the public to know if some of the major donors to her organization -- and therefore to her salary -- may be principles in suits that come before the court.
It would be naive to suggest that Clarence Thomas voted for Citizens United only to benefit his wife's political activism. But the standard for recusal is not how the person would have voted otherwise but whether there is the possibility and the appearance of conflict of interests.
Clearly there is the possibility -- and Clarence Thomas is not someone who is likely to have the view of himself as being inevitably unconsciously influenced; he would say that of course he divorces his judicial thinking from subjective influences, as does Scalia. That doesn't make it so, for those of us who believe in unconscious motivation.
Such certainty of one's own objectivity should always be suspect, in my opinion. In fact, I would go further and say that it is the unacknowledged subjectivity that is more likely to be influential than the acknowledged subjectivity, because if you are unaware of your own subjectivity you will be influenced without thinking that you are; whereas, if you acknowledge it, you can more easily control its influence by rational and conscious intention.
It stinks to high heaven, it does. Just as Thomas' vote in the 5-4 decision gave the presidency to George W. Bush, while his wife was already working behind the scenes to help select Bush White House appointees while Gore v Bush was being heard by her husband.
Liberal Kagan bends over backwards to avoid conflict of interest; arch-conservatives Scalia and Thomas flout and flaunt their freedom to refuse to recuse, even when it seems obvious and necessary to other observers.
Ralph
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Virginia Thomas who is the wife of Clarence Thomas of the Supreme Court and a very active member of the newly founded Tea Party movement called President Obama a tyrant recently.
ReplyDeleteIt's hard to imagine a Clarence Thomas, even harder to imagine his wife. They seem like caricatures of something, but it's even totally clear what. It almost seems like he's determined to make a joke out of the Supreme Court. If people actually really do turn over in their graves, Thurgood Marshall is spinning...
Poppy Bush nominated him, first to an Appeals Court and then to SCOTUS. He had the strong backing of good-guy John Danforth, for whom he had worked as a legislative assistant before Reagen appointed him to head EEOC.
ReplyDeleteHe MUST have shown some promise back then -- and probably did function better in a support role where he was not given much power. I don't know how he did at EEOC, but his bitter past seems to have hardened him and wrung any compassion or nuance out of him.
Jeffrey Toobin says that, after the David Souter appointment, the Bush White House was determined to fill Thurgood Marshall's seat with a reliable conservative, but it had to be an African-American. Thomas was the only possible choice.