It’s hard these days to keep track of all the decrepitude in public life, so forgive me if I highlight some new sleaze that has likely escaped your notice.
In the waning days of the Trump dystopia, a group called Americans for Prosperity — which is bankrolled by conservative billionaire David Koch — spent more than a $1 million on a national campaign to ensure that Senate Republicans jammed Amy Coney Barrett onto the U.S. Supreme Court. Then, earlier this week an affiliated Koch group — the Americans for Prosperity Foundation — asked the high court to overturn a California law that requires charities to disclose the names of their biggest donors.
In other words, Barrett, who owes her seat in part to the secret dark money that was spent on her behalf, decided to sit in judgment of a Koch request to protect secret dark money. And she made it clear, during oral argument, that she’s prepared to do just that.
Hang on. Isn’t there a concept called “conflict of interest”? Isn’t a judge with a conflict compelled to recuse him/herself from such a case?
It would seem so. The Code of Judicial Conduct, embedded in federal law, specifically requires that “any justice, judge or magistrate judges of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” — by a reasonable, objective person. The high court applied that standard in 2009 when it ordered a West Virginia Supreme Court judge to recuse himself from a case that involved a coal company CEO — precisely because that CEO had donated $3 million to the justice’s election campaign.
But here’s the catch: The U.S. Supreme Court exempts itself from that federal law.
There is no Supreme Court code governing conflict of interest. There are no ethics rules. There is no accountability. The high court justices police themselves, which of course means that, in practice, they do not police themselves at all. The court defies the traditional legal principle of nemo judex in causa sua (nobody should be a judge of his own case). It deems itself exempt from the code of conduct that governs lower federal courts. Aside from the nine justices at the top of the pyramid, all other federal judges are inhibited from putting themselves in any situation that might convey an appearance of impropriety.
This outrage has been obvious for a long time. Eleven years ago, Clarence Thomas sat in judgment of Obamacare even though Virginia Thomas, his conservative activist wife, earned roughly $165,000 working for several groups that fought and lobbied against Obamacare.
A bipartisan coalition of 107 law professors from 76 law schools asked Congress to require that all federal judges with perceived conflicts at least explain in writing the reasons why they’d refused to recuse themselves. A tepid reform, yes. But right now the Supremes don’t have to explain anything. So when Barrett joined the rest of the court during oral arguments on the Koch empire’s dark money plea, she didn’t need to explain anything.
Actually, during her Senate confirmation hearing last fall, she was asked about the impending Koch case and whether she was planning to recuse herself. In response she said that it would “not be appropriate for me as a judicial nominee to offer an opinion about such abstract issues or hypotheticals.” Which was a word-salad way of saying “No.” In a separate written answer, she stated: “I commit to faithfully applying the law of recusal if confirmed” — a meaningless promise, because in practice the Supremes ignore that law.
So, for the Koch empire, it’s clear that Barrett was a cost-efficient investment. If she joins her conservative colleagues to nix the California donor-disclosure law (highly likely), that will embolden the dark-money forces to challenge the many state and federal laws that require political groups to reveal the names of their donors.
There once was a time when conservatives argued in favor of transparency, claiming that unlimited campaign donations would not corrupt politics as long as the public knew who the donors were. As one prominent conservative thinker declared in 2010, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
So said Justice Antonin Scalia. But that credo was so 11 years ago. And it sounds especially archaic now, with Amy Cony Barrett having been bought and paid for.
Dick Polman, a veteran national political columnist based in Philadelphia, writes at DickPolman.net. Email him at firstname.lastname@example.org