Robber baron justice in the 21st century

When Scalia and Thomas went to the Kochs' events, they left behind the appearance of impropriety for the real thing

Published February 16, 2011 3:16AM (EST)

I've been skeptical, maybe even cynical, about whether conflict of interest claims about Supreme Court Justice Clarence Thomas and Antonin Scalia could stick when it comes to their pro-corporate ruling in the Citizens United case. Scalia already thumbed his nose at propriety when he refused to recuse himself from a case involving Dick Cheney's energy task force in 2004, even though the two were hunting buddies. Thomas has acted as though his failure to declare his wife's $600,000 of income from the Tea Party group Liberty Central over five years was just an oversight, even though he'd filed his disclosure forms correctly for the years before Virginia Thomas went to work for the right-wing group. Who can police this most insulated and protected branch of the government, judges trusted to rely on their own judgment to avoid ethical conflict.

Common Cause has decided to ask the Justice Department to try. In January, the watchdog group petitioned Attorney General Eric Holder to investigate the two justices' visits to political retreats convened by the storied Koch brothers, conservative Republican energy barons who are spending many millions to roll back government environmental and energy regulations to the 19th century. On Monday the New York Times reported that the group had found discrepancies between Thomas's account of his Koch-related appearances and official records. Common Cause suggests the right-wing judges fraternizing with the Kochs creates "the appearance of impropriety and bias," especially because of their votes on the pro-corporate Citizens United case, and asks the Justice Department to look into it.

The Koch brothers themselves may have gotten their friends in trouble, bragging in promotional materials that their retreats are attended by such "notable leaders" as Scalia and Thomas. Thomas claimed he just made "a brief drop-by" at the Koch brothers' January 2008 Palm Springs political retreat to give a talk; in fact he was reimbursed for four days of “transportation, meals and accommodations” by the Federalist Society. That is quite a drop-by; what does Thomas do when he decides to attend a conference for real? Rent a condo and register to vote?  Meanwhile, Scalia's disclosure forms revealed he was reimbursed by the Federalist Society for food, lodging and transportation for four speeches in 2008 as well as lectures he gave in 2009.

So Common Cause filed a petition with the Justice Department last month, asking for an investigation whether Scalia and Thomas's hob-knobbing with attendees of Koch-sponsored events created the perception of bias in the Citizens United case. The Kochs' own political action committee spent $2.5 million in the 2010 elections, Common Cause says, while the Koch-funded Americans for Prosperity spent millions more, most of it undisclosed, but an estimated 96 percent went to Republicans. The new discrepancies between Thomas's accounts of his Koch Brothers "drop-by" and disclosure records make the relationship look even fishier.

Rachel Maddow had a great segment on the Common Cause crusade Tuesday night.

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By Joan Walsh

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