Common Cause intensified its scrutiny of the U.S. Supreme Court today, asking the Court's Clerk and the Supreme Court Police to produce copies of the travel records of two justices in connection with political strategy and fundraising meetings hosted by Koch Industries.
In Freedom of Information Act (FOIA) requests to the clerk and the police, the nonpartisan government watchdog group seeks access to expense account reports, travel records, event programs, attendance lists, and other records relating to trips to the Palm Springs, California area by Justice Antonin Scalia in 2007 and Justice Clarence Thomas in 2008.
A letter from Charles Koch on Koch Industries letterhead, dated September 24, 2010, referred to the justices as "featured" guests at past Koch-sponsored "seminars," which also have attracted an assortment of prominent political leaders and conservative pundits. Financial disclosure forms show that Justice Thomas was reimbursed for four days of travel, accommodations and meals in Palm Springs on January, 26-29, 2008, and that Justice Scalia was similarly reimbursed for a trip to nearby Indian Wells on January 27, 2007.
"We are seeking records to help resolve questions about of the justices' participation in political strategy and fundraising events, an activity that is improper for any judge, to say nothing of those on our nation’s highest court," said Bob Edgar, Common Cause’s president.
Court officials have said Scalia and Thomas made the trips to Southern California to speak at "separate" dinners hosted by the Federalist Society, a conservative legal group, and paid for by the Kochs. According to a Court spokeswoman, neither justice participated in political "seminars" Koch Industries was hosting at the same time and location, but Thomas made a "brief drop-by" at one such session.
Common Cause research has found no record of any Federalist Society events in the Palm Springs area for the dates in question, and the group’s CEO conceded to the Washington Post in a story on February 24, 2011 that it had no meetings of its own at those times. The Court's spokeswoman also told the Post that the group paid for Ginni Thomas, Thomas’s wife and prominent Tea Party activist, to go on the trip.
"The Court’s public statement just doesn’t jibe with the facts on the public record," Edgar said. "And since the Court and the Federalist Society have failed to respond to our request for more information, we’re taking this next step."
"It’s time for the Court to level with the American people," he added.
Common Cause's FOIA request follows a series of recent events calling into question the Supreme Court's commitment to widely shared values of impartiality and transparency, particularly on the part of Justice Thomas. In addition to the discrepancy over whether and for how long Justices Thomas and Scalia attended the Kochs’ political retreats, the developments include:
- Justice Thomas misreported his wife’s sources of income for 20 years on his annual disclosure forms in apparent violation of the Ethics in Government Act. During its investigation into potential conflicts of interest, Common Cause discovered that Justice Thomas had checked the form’s box for "none" under spousal income, despite Virginia Thomas’s employment at the Heritage Foundation and Hillsdale College.
- When the Supreme Court was deliberating on the landmark Citizens United v. FEC case, Justice Thomas failed to disclose that his wife had just become the CEO of a new 501(c) (4) group, Liberty Central, that stood to benefit financially from the Court's decision to end the longstanding ban on corporate political spending. Liberty Central's co-founder was a director of Koch Industries political action committee.
- Most recently, information has surfaced that Justice Thomas also failed to disclose to FEC lawyers that the plaintiff in the case, the conservative political advocacy group Citizens United, had spent $100,000 on a television ad campaign attacking Senators that opposed his nomination in 1991.
"What we are seeing here is a troubling pattern of failure to disclose important information, misreporting information, and dodging questions on the part of Justice Thomas," said Arn Pearson, a lawyer with Common Cause.
"To avoid even the appearance of bias, as the law requires, judges are expected to disclose their connections to people or groups appearing before them," Pearson said. "Armed with that knowledge, lawyers arguing a case can decide whether the connection warrants a request that the judge involved withdraw from the case. Failure to disclose a potential conflict of interest deprives them of that basic fairness."
In contrast to Justice Thomas, the late Chief Justice William Rehnquist recused himself in 1988 from a case argued by James Brosnahan, who had earlier testified against him at his 1986 confirmation hearing, Pearson noted.
In January, Common Cause asked the Department of Justice, which represented the FEC in the Citizens United case, to investigate the extent of participation by Scalia and/or Thomas in Koch Industries-sponsored political gatherings. Because Koch Industries was a major beneficiary of the court’s 5-4 decision in Citizens United – and funded several friend of the court groups which argued in favor of lifting the ban on corporate political spending – Common Cause has asserted that the justices' involvement in their political strategy sessions could create an appearance of bias that under federal law would require their disqualification and force the court to reconsider the case.
Common Cause is a nonpartisan, grassroots organization dedicated to restoring the core values of American democracy, reinventing an open, honest and accountable government that serves the public interest, and empowering ordinary people to make their voices heard in the political process.