From 2009: Justice John Roberts on oral arguments

From the "Well, if you say so..." files:

Chief Justice John Roberts said Saturday that he has "complete confidence" in his colleagues' ability to step away from cases where their personal interests are at stake, and noted that judges should not be swayed by "partisan demands."

The comment, included in Roberts' year-end report, comes after lawmakers demanded that two Justices recuse themselves from the high court's review of President Obama's health care law aimed at extending coverage to more than 30 million people. Republicans want Justice Elena Kagan off the case because of her work in the Obama administration as solicitor general, whereas Democrats say Justice Clarence Thomas should back away because of his wife's work with groups that opposed changes to the law.

While not mentioning the upcoming health care ruling, or any case in particular, Roberts' year-end report dismissed suggestions that Supreme Court Justices are subject to more lax ethical standards than lower federal courts and said each Justice is "deeply committed" to preserving the Court's role as "an impartial tribunal" governed by law.

"I have complete confidence in the capability of my colleagues to determine when recusal is warranted," wrote Roberts. "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties."

I don't know that there's anything groundbreaking about the Chief Justice expressing confidence in his court's ability to be professional. What else could he say? Neither Kagan nor Thomas have indicated that they will recuse themselves from hearing the upcoming cases on the ACA. Although it is left up to the individual justice to recuse him- or herself, there is a federal statute that states that judges should recuse themselves from any case in which their impartiality can reasonably be questioned, which I think can be argued for Thomas (and Kagan, to a far lesser degree). But Roberts thinks that the standard is different for the highest court:

Roberts says that while Supreme Court Justices follow the same general principles respecting recusal as other federal judges, “the application of those principles can differ due to the unique circumstances of the Supreme Court.”

Unlike a lower court judge, a Supreme Court Justice cannot be replaced if she steps down from a case.

“A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case. ”

Justices are also required to file financial disclosure reports similar to all other federal judges. These reports disclose the Justices’ non-governmental income, investments, liabilities, gifts and reimbursements from third parties.

Frankly, Roberts made a fairly compelling argument for exactly why Thomas should recuse himself from the upcoming cases. Just like a Bush nominee to see it exactly backwards from reality.

Has this country become so corrupt that our elected officials and the media will simply look the other way while Clarence Thomas makes a mockery of judicial impartiality? How nice that he has rich friends who do such nice favors -- I'm sure it doesn't influence him in the least:

Justice Clarence Thomas is an ethics problem in a black robe. Just eight months after ThinkProgress broke the story of Thomas’ attendance at a Koch-sponsored political fundraiser, we learn that Thomas doesn’t just do unethical favors for wealthy right-wing donors — they also do expensive favors for him.

Leading conservative donor Harlan Crow, whose company often litigates in federal court, donated $500,000 to allow Thomas’s wife to start a Tea Party group and he once gave Thomas a $19,000 Bible that belonged to Frederick Douglass. The American Enterprise Institute, a conservative think tank which frequently files briefs in Thomas’ Court, also gave Thomas a $15,000 gift.If this sounds familiar, it’s because America has seen this movie before. Indeed, the Thomas scandal is little more than a remake of the forty year-old gifting scandal that brought down Justice Abe Fortas. Like Thomas, Fortas liked to associate with wealthy individuals with potential business before his Court. And like Thomas, Fortas took inappropriate gifts from his wealthy benefactors.

[...] It is difficult to distinguish Fortas’ scandal from Thomas’. Like Fortas, Thomas accepted several very valuable gifts from parties who are frequently interested in the outcome of federal court cases. One of Thomas’ benefactors has even filed briefs in his Court since giving Thomas a $15,000 gift, and Thomas has not recused himself from each of these cases.

Of course, Thomas is also the least likely Justice to actually follow the command of precedent. Thomas embraces a discredited theory of the Constitution which would return America to a time when federal child labor laws were considered unconstitutional. His fellow justices criticize him for showing “utter disregard for our precedent and Congress’ intent.” Even ultra-conservative Justice Antonin Scalia finds Thomas’ approach to the law too extreme — in Scalia’s words “I am a textualist. I am an originalist. I am not a nut.”

But Thomas’ disregard for what has come before him changes nothing about the precedent he faces. If Abe Fortas had to resign his seat, so too should Clarence Thomas.

Rep. Anthony Weiner has been working since February to hold Clarence Thomas accountable for hiding his wife's income to avoid the appearance of a conflict, and his campaign was finally getting some traction. So what do the wingnuts do? They quickly create a diversion:

Rep. Anthony Weiner says Supreme Court Justice Clarence Thomas should recuse himself from any health reform cases cases that come before the high court, and he and 73 other Congress members have formally asked him to in a letter.

Their problem is that Thomas' wife, Virginia, has reportedly earmed money lobbying against the health insurance reform law.

"As an Associate Justice, you are entrusted with the responsibility to exercise the highest degree of discretion and impartiality when deciding a case," Weiner and Co. wrote.

"As Members of Congress, we were surprised by recent revelations of your financial ties to leading organizations dedicated to lobbying against the Patient Protection and Affordable Care Act," they wrote. "We write today to respectfully ask that you maintain the integrity of this court and recuse yourself from any deliberations on the constitutionality of this act."

They point to her touting her connections to clients who want the health reform law tossed. One of those connections might be considered to be her husband, they argue, and say Thomas should duck any cases that raise the appearance of a conlict of interest.

They also note that Thomas had failed to disclose the $686,589 that Virginia Thomas earned from the health reform-opposing Heritage Foundation from 2003 to 2007, and that his wife stood to gain from his decision in the Citizens United case.

Karoli adds:

Does anyone remember hearing that Justice Thomas released his financial disclosures on May 27th? Here's a little tidbit for you: His disclosures indicate a direct cash investment of between $15,000 and $25,000 into Ginni Thomas' Liberty Consulting lobby firm...the one that she started after resigning from the Liberty Central Tea Party astroturf group. The disclosures also indicate payment from Liberty Central and Liberty Consulting to Ginni Thomas in 2010, post Citizens United.

And Anthony Weiner was pushing hard on Thomas to recuse himself from any ACA-related lawsuits before Andrew Breitbart sprung into action.

This timeline is interesting:

Sept 9, 2009: Citizens United argued.
Nov 6, 2009: Virginia Thomas launches her new Liberty Central 501(c)(4) organization, which raises 550K in 2009.
Jan 21, 2010: Citizens United decided.
Virginia Thomas announces that Liberty Central would "accept donations from various sources — including corporations — as allowed under campaign finance rules recently loosened by the Supreme Court."
November 14, 2010: Liberty Central announces that Virginia Thomas would be leaving the organization.
November 16, 2010: Liberty Consulting incorporated in the state of Virginia.
February 4, 2011: Politico reports that Virginia Thomas had launched Liberty Consulting.

Marcy Wheeler looks at the Think Progress report and comes up with some questions about the connection between Clarence Thomas and the Koch brothers:

Again, it’s not a surprise that the guy who duck-hunted with Dick Cheney while reviewing a suit involving the Vice President would hang around with the conservative elite.

But the report raises a whole slew of questions.

Think Progress has an important post looking at how Scalia and Thomas have been instrumental in loosening campaign finance regulations, which has made it a lot easier for people like the Kochs to buy elections.

But Scalia and Thomas have been involved in more than just rulings that make it easier for the Kochs to win election.

After all, they once cast two of the only nine votes to matter in the 2000 Presidential election.

They’ve not only issued rulings that make it easier for conservatives to win elections, they’ve decided an election. And one of the most obvious explanations for why Thomas and Scalia have attended at least one of these secret shindigs but not Sam Alito or John Roberts would be if they attended before the latter two were SCOTUS Justices. You know, back before Thomas and Scalia selected a President.

So did Thomas and Scalia attend a meeting strategizing how to win elections before the decided one?

And then there’s the other question: whether Ginni Thomas, the founder of an organization that bridges mainstream conservatives with the TeaBagger movement, attended the gathering.

The invitation from this year’s shindig shows that most attendees bring their spouses. So if Thomas followed the norm, then Ginni would have attended with him. Which would put Ginni Thomas, now a big player in the TeaBagger movement, at an event hosted by the guys who are bankrolling the TeaBagger movement.

The Koch brothers would already be leading candidates to be funding Liberty Central. The Koch brothers would already be leading candidates to be the source of the $500,000 or $50,000 donations from undisclosed individuals to Liberty Central. The Koch brothers–and their funding of TeaBagger activities–have been central in opposing the health care reform that Liberty Central has called unconstitutional.

But it would be very neat if the Koch brothers recruited Ginni Thomas to front this group at their secret cabal meeting, wouldn’t it?

I don't know about you, but I still believe Anita Hill:

In her Senate testimony, Hill said that Thomas would make sexual comments to her at work, including references to scenes in hard-core pornographic films. Thomas angrily denied the allegations, memorably saying they amounted to a "high-tech lynching."

But Lillian McEwen, a former Senate Judiciary Committee lawyer who said she dated Clarence Thomas from 1979 through the mid-1980s, told The Washington Post in an interview that Hill's long-ago description of Thomas's behavior resonated with her.

"The Clarence I know was certainly capable not only of doing the things that Anita Hill said he did, but it would be totally consistent with the way he lived his personal life then," said McEwen, who is writing her own memoir but has never before publicly discussed her relationship with Clarence Thomas.

McEwen also told the Post she was not surprised that Virginia Thomas would leave Hill a message, even after all these years.

"In his autobiography, Clarence described himself as a person incapable of doing what Anita Hill said he did," McEwen said. "He is married to a woman who is loyal to him and religious in a way he would like to be. This combination of religiosity and loyalty and belief that he is really the kind of person who he describes in his book would just about compel her to do something like that."

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I think it's great that Justice Antonin "Tony The Fixer" Scalia and Clarence "Hey, Who Left A Pubic Hair On My Caffeinated Beverage" Thomas are such good friends, even hanging out with the Koch brothers together. The problem is, no one knows what they were doing at that little ultra-right wing confab - and they ain't telling.

So I put on my thinking cap and now I'm wondering: Do you suppose they were the entertainment?

Reports that two Supreme Court Justices have attended seminars sponsored by the energy giant and conservative bankroller Koch Industries has sparked a mild debate over judicial ethics.

On Tuesday evening, the New York Timesreported that an upcoming meeting in Palm Springs of "a secretive network of Republican donors" that was being organized by Koch Industries, "the longtime underwriter of libertarian causes." Buried in the third to last graph was a note that previous guests at such meetings included Supreme Court Justices Antonin Scalia and Clarence Thomas, two of the more conservative members of the bench.

It's not rare for a Justice to attend a seminar sponsored by a group with judicial or political interests. Members of the court, for instances, often speak at academic institutions or think tanks. Virtually all companies, meanwhile, are affected by the judicial branch. So long as Scalia and Thomas did not participate in overt partisan activities, there would be no apparent conflict of interest. "There is nothing to prevent Supreme Court justices from hanging out with people who have political philosophies," said Steven Lubet, a professor of law at Northwestern University who teaches courses on Legal Ethics.

But the Koch event appears more political than, say, the Aspen Ideas festival. In its own invitation, it was described as a "twice a year" gathering "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it." In addition, it's not entirely clear what the two Justices did at the Koch event. A copy of the invitation that served as the basis for the Times's report was posted by the liberal blog Think Progress. It provided no additional clues. A call to the Supreme Court and an email to a Koch Industries spokesperson meanwhile were not immediately returned.

Faced with a lack of concrete information, and cognizant of Koch's fairly intense history of political involvement, legal ethicists are urging for more disclosure.

Think Progress, who released the information yesterday, has more:

Scalia and Thomas’ participation in these fundraising gatherings also call into question whether they can be impartial in any number of cases brought by Koch-aligned groups seeking immunity to the law. Most significantly, the Koch brothers have contributed significantly to efforts to stop the Affordable Care Act from going into effect, and a number of attendees at the Koch’s secret meetings include health industry mogulswith a direct financial stake in the litigation challenging health reform (Justice Thomas’ wife, of course, actively lobbied against the Affordable Care Act).

Court observers hoping that Scalia and Thomas will recuse themselves from cases backed by the “Kochtopus” shouldn’t hold their breath, however.

During the Bush Administration, Justice Scalia infamously refused to recuse himself from a suit against Vice President Dick Cheney even after it was revealed that Scalia and Cheney went on a duck hunting trip together during the pendancy of Cheney’s case. Scalia also came under ethical fire when he skipped Chief Justice Roberts’ swearing in ceremony toattend a junket to a Ritz-Carlton resort funded by the right-wing Federalist Society; and Thomas accepted more than $42,000 in free gifts in just six years on the Supreme Court.

At the very least, however, Scalia and Thomas should publicly disclose exactly what role they played in supporting Koch’s secret fundraising network. These fundraising meetings exist for the purpose of eliminating laws and regulations that corporate America does not like, and a sitting Supreme Court justice can do a great deal to advance this purpose (indeed, Scalia and Thomas both already handed an enormous gift to the Koch’s corporate network by joining the egregious decision in Citizens United v. FEC). The two justices’ attendance at these events raise serious questions about whether Scalia and Thomas are deciding cases impartially — or whether they are pushing the exact same agenda as all the Koch events’ other attendees.

This is an interesting situation. Sitting Supreme Court Justices are simply refusing to adhere to the Judical Code of Ethics, reducing their philosophy to two words: "Trust me."

So what's our remedy? The standard for impeachment is very high and requires a supermajority of the Senate to convict (although if we were Republicans, we wouldn't let a silly thing like that stop us!). And it's not as if the President can call them into his office for a stern talking-to.

In other words, once again, the right-wing bully boys have hijacked one of our country's institutions, show no signs of anything approaching ethical behavior, and the Democrats will simply wring their hands and say, "What do you want us to do about it?"

The absolute arrogance of it all:

Anita Hill accused Clarence Thomas of sexual harassment during his contentious Supreme Court confirmation hearings, Justice Thomas’s wife has called Ms. Hill, seeking an apology.

In a voice mail message left at 7:31 a.m. on Oct. 9, a Saturday, Virginia Thomas asked her husband’s former aide-turned-adversary to make amends. Ms. Hill played the recording, from her voice mail at Brandeis University, for The New York Times.

“Good morning Anita Hill, it’s Ginni Thomas,” it said. “I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband.”

Ms. Thomas went on: “So give it some thought. And certainly pray about this and hope that one day you will help us understand why you did what you did. O.K., have a good day.”

When I first saw this headline, I misunderstood it to be Ginni Thomas reaching out to Anita Hill to apologize herself for the disgusting circus that surrounded Hill's testimony, but I should have known that a tea party queen like Ginni Thomas would no more apologize to Anita Hill any more than she would apologize to the whole of America for her husband's proclivity for napping during SCOTUS hearings. No, instead, she had the unmitigated gall to call up Professor Hill to ask Hill to apologize?

To her credit, Hill has simply refused to give Thomas the apology she's seeking, rather than throwing it back in her face or perhaps laughing herself silly, which would have been my first inclination. And this is not the first time Thomas has sought an apology:

“I initially thought it was a prank,” Hill told ABC News. “And if it was, I thought the authorities should know about it.”

She reported the call to campus police.

Mark Matthews of our affiliate KGO learned about this and reached out to Virginia Thomas.

Thomas e-mailed him, saying: “I did place a call to Ms. Hill at her office extending an olive branch to her after all these years, in hopes that we could ultimately get passed what happened so long ago. That offer still stands, I would be very happy to meet and talk with her if she would be willing to do the same. Certainly no offense was ever intended.”

Hill told ABC News: “Even if it wasn’t a prank, it was in no way conciliatory for her to begin with the presumption that I did something wrong in 1991. I simply testified to the truth of my experience. For her to say otherwise is not extending an olive branch, it’s accusatory.”

She continued: “I don’t apologize. I have no intention of apologizing, and I stand by my testimony in 1991.”

So that's what Thomas considers an olive branch? Okay then. Anita Hill proves both then and now what a class act she is compared to both Thomases.