Justices Thomas and Scalia Should Have Recused Themselves...But Didn't

This past weekend, at the exclusive Rancho Las Palmas resort near Palm Springs, California, the infamous Koch brothers hosted a gala for some of the largest titans of industry and government; the influential and the moneyed. It wasn't necessarily a celebratory gathering to praise and applaud those who participated in a hard-fought election, but rather a secretive planning and strategizing session for the prominent conservative elected (and un-elected) officials, donors and strategists that have been shaping American political thought and policy the last few years. The twice-a-year gathering has been framed as a session "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it."

It's not known whether two Supreme Court justices, namely Antonin Scalia and Clarence Thomas, were attending the Rancho Las Palmas festivities, but it is known that both have had dealings with David and Charles Koch in the past and have been guests of the notorious pair at similar occasions. This has raised red-flags, appropriately so, by legal ethicists and other groups who want to see more disclosure. Although supreme court justices are not barred, like federal judges, from appearing at partisan events, they are ethically-bound from attending overt political planning functions. Obviously, their presence at these conferences greatly raises questions of transparency and, for some, broader concerns about judicial independence.

Last spring, in a letter to Attorney General Eric Holder and signed by Common Cause President & CEO Bob Edgar and Vice President Arn Pearson, they asked that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case. If the Department finds sufficient grounds for disqualification of either Justice, they have requested that the Solicitor General file a motion with the full Supreme Court seeking to vacate the judgment.

Although sufficient evidence may be unattainable, questions included in the petition include: (1) Would a reasonable person question the impartiality of Justices Thomas and Scalia based on their attendance at secretive Koch Industries retreats?, and (2) Does attendance of a closed-door Koch Industries retreat constitute political activity? Common Cause argues, “We believe it is inappropriate for a Supreme Court judge to be ‘featured’ at or attend closed-door strategy meetings with political donors, corporate CEOs, candidates and political officials, and thereby lend the prestige of their position to the political goals of that event” and “A reasonable person would question the impartiality of Justices Thomas and Scalia in the Citizens United case based on their attendance at political strategy meetings sponsored by a corporation that raises and spends millions to defeat Democrats and elect Republicans”.

And there's another fly in the ointment that may add credence to Common Cause's request: As you can probably imagine (simply because you undoubtedly consider yourself a "reasonable person"), federal judges -- and justices -- are required by law to disclose their spouse's income. This prohibits unsavory organizations and individuals from influencing the judiciary by channeling money (i.e., "influence") through their wife or husband. Yet, Justice Thomas has not complied with this requirement for years. Between 2003 and 2007, Virginia Thomas, Justice Thomas' wife, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation’s IRS records. Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labeled “none” where “spousal noninvestment income” would be disclosed. It's also known that Virginia Thomas has been active in the political group, Liberty Central, an organization of her founding, that's predominately guided by the Tea Party's vague philosophies of limited government, free enterprise, national security, and personal responsibility, and is also funded charitably by Koch Industries, the second largest private corporation in America.  

Thus, the Common Cause petition to the Department of Justice also asked a third very critical question: Did Justice Thomas have a conflict of interest based on his wife’s interest in the subject matter of the Citizens United case? If so, and this is an equally important question to ask (again, assuming you're a "reasonable person"): Does Koch Industries' ties to Virginia Thomas' organization, Liberty Central, create an additional appearance of bias for Justice Thomas? 

Knowing what we know now -- that Koch Industries, a major beneficiary of the Citizens United decision, and benefiting from the ruling to expand its multi-million dollar investment in political campaigns and causes -- should the Citizens United ruling be vacated? If there were a such thing as justice, and rule of law, it would be. But given the American mainstream media, and its refusal to report this, the vast majority of Americans will never even be aware of this blatant and obvious conflict of interest. And not being aware creates no pressure by We the People to force and elicit change through the Obama Administration. If the Common Cause petition ever sees the light of day, I'll be surprised. In just about all areas, this administration has shown it's more concerned with the welfare of corporate America than with the rights of We the People. I'm sure this will be no exception.

The First Year -- Only a Preview

Yesterday's arctic blast didn't dissuade about one-hundred, We the People, from attending the rally marking the one-year anniversary of the Supreme Court's monumental and disastrous decision, Citizens United v. FEC. The wind blew furiously out of the north, but We the People held fast to the concept of true democracy, while holding up, equally tight, a giant (20’ x 210’) replica of the original Preamble to the Constitution. It was a celebration of our inalienable rights, as they were intended, for actual blood-in-our-veins persons (not the corporate variety), who also happen to have this unending capacity to breathe unpolluted air, drink clean water, along with other human qualities that make it impossible to compete on even ground with corporate entities and their unlimited "speech" and interminable lives.

The turnout was low, disappointingly small to me, but the recognition and understanding has to start somewhere. The movement has to begin within our conscience body, that almost unrecognizable part of ourselves that comes to the forefront when we see wrongs that need to be righted and injustices made whole. It's that portion that realizes our busy lives, with all the routine and trivial minutia, finally takes a backseat. That's why I chose, and will continue to choose, to stand-up for democracy; why I stand against oppression, no matter the oppressor. I've recognized the real enemy, and as Pogo famously said, it is us.

Read John Nichols' excellent article from yesterday. He talks about the numerous community events that took place yesterday, including the one I attended on the Capitol lawn. Grassroots movements: it's where every extraordinary and mighty truth-against-power and power-to-the-people action had its beginning. It has to start somewhere.

P.S. I'll never listen to A Day in the Life in the same way again. If you're a child of the '60s, or even a Beatles aficionado, you'll know what I mean. Special thanks, and kudos, to The Coffee Party U.S.A. 

The Dismantling of Democracy

Just as today, Monday, January 17th, we commemorate and memorialize Martin Luther King for being an iconic figure in the advancement of civil rights in the United States and around the world, this Friday we'll denounce the landmark Supreme Court decision of last January 21st -- Citizens United v. Federal Election Commission -- for taking, as Thom Hartmann condemningly expresses, the "radical step of overturning more than a hundred years of laws passed by elected legislatures and signed by elected presidents and declared that not only are corporations 'persons' but that they have constitutional rights such as the First Amendment right to free speech."  

The following article appeared in today's Truthout. Mr. Hartmann, a historical researcher and writer concerning the legal fiction of corporate personhood and its devastating affects on our democratic processes, presents another penetrating analysis of this subject, and how Citizens United has effectively allowed corporations, domestic and foreign, to leapfrog over our democratic ideals and to the forefront of our constitutional protections.

Mr. Hartmann is totally correct in his historical analysis of the history of corporate personhood. Even prior to his work, scholars and other writers investigated and engaged in understanding this legal fiction; others, since, have corroborated his research. This is the single biggest issue confronting our democracy and our future. With last January's errant Supreme Court decision, the stakes got even higher. To dismiss Mr. Hartmann's work, as one commenter mentioned, "hypocritical", or to throw in the towel and see the cause as being too futile, does nothing to help stem the tide of this horrific neo-feudalism.

If you're in Washington D.C this coming Friday, January 21st, join us for a rally condemning last year's dreadful decision. We'll be in front of the Supreme Court building at 11:00 a.m. See www.movementforthepeople.org for more information.

 

Wal-Mart Is Not a Person by Thom Hartmann

The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

—John Stuart Mill

In 2003, after my book Unequal Protection was first published, I gave a talk at one of the larger law schools in Vermont. Around 300 people showed up, mostly students, with a few dozen faculty and some local lawyers. I started by asking, “Please raise your hand if you know that in 1886, in the Santa Clara County v. Southern Pacific Railroad case, the Supreme Court ruled that corporations are persons and therefore entitled to rights under the Constitution and the Bill of Rights.”

Almost everyone in the room raised their hand, and the few who didn’t probably were new enough to the law that they hadn’t gotten to study that case yet. Nobody questioned the basic premise of the statement.

And all of them were wrong.

We the People are the first three words of the Preamble to the Constitution; and from its adoption until the Robber Baron Era in the late nineteenth century, people meant human beings. In the 1886 Santa Clara case, however, the court reporter of the Supreme Court proclaimed in a “headnote”—a summary or statement added at the top of the court decision, which is separate from the decision and has no legal force whatsoever—that the word person in law and, particularly, in the Constitution, meant both humans and corporations.

Thus began in a big way (it actually started a half century earlier in a much smaller way with a case involving Dartmouth University) the corruption of American democracy and the shift, over the 125 years since then, to our modern corporate oligarchy.

Most recently, in a January 2010 ruling in Citizens United v. Federal Election Commission, the Supreme Court, under Chief Justice John G. Roberts, took the radical step of overturning more than a hundred years of laws passed by elected legislatures and signed by elected presidents and declared that not only are corporations “persons” but that they have constitutional rights such as the First Amendment right to free speech.

This decision is clear evidence of how far we have drifted away as a nation from our foundational principles and values. Particularly since the presidency of Ronald Reagan, over the past three decades our country and its democratic ideals have been hijacked by what Joseph Pulitzer a hundred years ago famously called “predatory plutocracy.”

The Citizens United decision, which empowers and elevates corporations above citizens, is not just a symbolic but a real threat to our democracy, and only the will of We the People, exercised through a constitutional amendment to deny personhood to corporations, can slay the dragon the Court has unleashed.

Read the rest at Truthout.

The Mindless Menace Of Violence

As a supposedly lone assassin attempted to kill Representative Gabrielle Giffords (D-AZ) this past Saturday morning, wounding a total of twenty -- six fatally -- at a political event in northwest Tucson, let us be reminded of the assassinations that filled our political landscape not that very long ago. Violence, especially that committed with handguns, seems to be accepted within American society, for reasons I've never been able to understand and comprehend. 

Violence is marketed shamelessly within our culture; sold and unwittingly accepted, and held unabashedly virtuous by many. The Mills River Progressive posted an excellent article this past weekend, decrying "the hate speech, and violent rhetoric", perpetrated by those who have the most to gain through their cultivation of violence as a means to political ends. Not only those who actually pull the trigger, but the violence must end with those who galvanize and condone the metaphoric language of killing, which has become sanctioned and too common. Unequivocally, "enough is enough".

The following is a speech given by Robert F. Kennedy in Cleveland, Ohio, on April 5, 1968, the day after the assassination of Martin Luther King, Jr. Little did he realize that he, himself, would be the fatal victim of an assassin's bullet exactly two months from that day. As you read, or listen to, Senator Kennedy's words, recall the mass hysteria of that dreadful early morning in Los Angeles on June 5th of 1968, when he and five others were wounded in a crazy and chaotic atmosphere of flying bullets, screams, and terror. Remind yourself that the situation in Arizona, this past weekend, was not unlike that horrible day.    


Robert F. Kennedy - On The Mindless Menace Of Violence

This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity, to speak briefly to you about the mindless menace of violence in America which again stains our land and every one of our lives.

It's not the concern of any one race. The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one can be certain who will suffer from some senseless act of bloodshed. And yet it goes on and on and on in this country of ours.

Whenever any American's life is taken by another American unnecessarily, whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, whenever we do this, the whole nation is degraded.

Too often we honor swagger and bluster and wielders of force; too often we excuse those who are willing to build their own lives on the shattered dreams of other human beings, but this much is clear: violence breeds violence, repression breeds retaliation, and only a cleansing of our whole society can remove this sickness from our souls.

When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your home or your family, then you also learn to confront others not as fellow citizens but as enemies, to be met not with cooperation but with conquest; to be subjugated and to be mastered.

We learn, at the last, to look at our brothers as aliens, alien men with whom we share a city, but not a community; men bound to us in common dwelling, but not in a common effort. We learn to share only a common fear, only a common desire to retreat from each other, only a common impulse to meet disagreement with force.

Our lives on this planet are too short, the work to be done too great to let this spirit flourish any longer in this land of ours. Of course we cannot banish it with a program.

But we can perhaps remember, if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life; that they seek, as do we, nothing but the chance to live out their lives in purpose and in happiness, winning what satisfaction and fulfillment that they can.

Surely, this bond of common fate, surely this bond of common goals, can begin to teach us something. Surely, we can learn, at least, to look around at those of us as fellow men, and surely we can begin to work a little harder to bind up the wounds among us and to become in our own hearts brothers and countrymen once again.