What Role Have Scalia And Thomas Played In The Koch Money Machine?

By Ian Millhiser Earlier today, ThinkProgress’ Lee Fang revealed several documents outlining the details of one of right-wing billionaire Charles Koch’s secret convenings of corporate political donors. As Koch revealed to the Wall Street Journal in 2006, the purpose of these meetings is to recruit “captains of industry” to fund the conservative infrastructure of front groups, political campaigns, think tanks and media outlets. Buried in this document, however, is a surprising revelation about the role two supposedly impartial jurists have played in these extended fundraising solicitations: “Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas.”

A Supreme Court justice lending a hand to a political fundraising event would be a clear violation of the Code of Conduct for United States Judges, if it wasn’t for the fact that the nine justices have exempted themselves from much of the ethical rules governing all other federal judges. Nevertheless, a spokesperson for the Supreme Court tells ThinkProgress that “[t]he Justices look to the Code of Conduct for guidance” in determining when they may participate in fundraising activities. Under that Code:

Fund Raising. A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee. A judge may solicit funds for such an organization from judges over whom the judge does not exercise supervisory or appellate authority and from members of the judge’s family. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.

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 moguls with 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 to attend 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.