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Justice Thomas as walking billboard: a conversation with Kevin Zeese of ProtectOurElections.org


 Justice Clarence Thomas’s public stock continues to fall. The conservative Justice failed to disclose the paid political work done by his teabagger wife (including work for Dick Armey and the Heritage Foundation) for which she collected six digit payments. Ginny Thomas received hundreds of thousands of dollars as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the Citizens United decision. Evidence is mounting that Justice Thomas violated federal law from 1989 through the present by failing to report his wife’s annual salary by checking “NONE” on the box for “Non-Investment Income” on the judicial AO 10 Financial Disclosure Reports. Seven of those forms can be found here.  Justice Thomas has also attended ritzy conferences paid for by the ultra-right Federalist Society and sponsored by the ever-popular Koch Brothers, who call them “strategy review sessions.” Arn Pearson of Common Cause points out that Justice Thomas should have reported the paid expenses of the trip as a gift under federal law. As deathandtaxesmag.com points out,

Thomas and Scalia’s opponents have a pretty strong case. As Common Cause points out the Supreme Court code of conduct instructs Justices to recuse themselves in instances in which they could be said to have a bias, a position backed up by a 1974 law saying federal judges should do them same when their “impartiality might reasonably be questioned.”

 Thomas’s failure to disclose his wife’s income is a potential felony, while his political connections meet many legal scholar’s threshold for the “appearance of a conflict of interest” threshold federal judges are expected to follow when recusing themselves. The watchdog group ProtectOurElections.org filed a bar complaint against Thomas based on these facts.  ProtectOurElections’ complaint sparked New York Rep. Anthony Weiner and a contingent of other Democrats to write Thomas a letter asking him to recuse himself from any upcoming SCOTUS decision on health care reform.

Now, new allegations have raised Thomas’s scandal profile another notch. ProtectOurElections.org filed a second bar complaint on February 15, 2011 against Justice Clarence Thomas for bias and actual conflict of interest for his failure to disqualify himself from Citizens United v Federal Election Commission, 130 S.Ct. 876 (2010), and hiding the fact that Citizens United Foundation had supported his 1991 nomination and spent at least $100,000 on commercials attacking several Senators opposed to his nomination. The second bar complaint, filed with the Washington, D.C. Office of Bar Counsel, is here.

As Jau Bookman wrote at the AJC:

Imagine, if you will, the reaction of conservatives if Justice Ruth Bader Ginsberg had failed to disclose her late husband’s employment at MoveOn.org, had attended and spoken at private affairs sponsored by George Soros, and had apparently been less than honest with the American people about what had taken place. The impeachment hearings in the House would be starting any day now. 

Although few conservative scholars or activists are willing to come out and defend Justice Thomas (presumably they’re saving their martyrdom for a higher cause), undoubtedly many on the right are surprised the issue hasn’t gone away. The SCOTUS is off a lot of people’s political and cultural maps, and even among the more politically active, the Court is presumed to be aloof and unassailable.

Activist, attorney, and frontline civil disobeyor Kevin Zeese is representing ProtectOurElections.org in their legal inquiries. Shared Sacrifice Media first met Kevin Zeese when we interviewed Zeese and physician Margaret Flowers during a wave of pro-single payer sit-ins and occupations in 2009. Whether he’s filing motions or being dragged from the offices of insurance companies, the aggressive Zeese brings focus and force to campaigns. As we found out in our most recent conversation, Kevin sees the stakes in the SCOTUS/Thomas action as a foundational question of the rule of law. Kevin Zeese is also executive director of Voters For Peace (www.VotersForPeace.US), and is also among the leaders of the Bradley Manning support network. He’s a busy guy, and we appreciated his taking the time to talk to us. At the outset of the interview, he expressed hope that “the DOJ and Bar Association take action to enforce the Supreme Court motto — Equal Justice Under Law.” 

PC: Perhaps after seeing your group’s efforts, and that progressives meant business on Thomas, and seeing the effect Rep. Weiner’s petition had, Orrin Hatch has now called for Justice Kagen to recuse herself. Any reaction to that?

KZ: So far Kagen has recused herself from something like 21 cases because of her role as Solicitor General.  So, she may recuse herself.  It seems like she has made those decisions based on each individual case looking at her role and the role of the role of the office of the Solicitors General in them.  It would not be a surprise if she did take herself off the case.  She has been pretty responsible about those decisions.

By the way, just to be ethical myself and disclose my work on the issue.  I was very active in the health care debate.  I was arrested when I joined with 7 other doctor, lawyers, labor and health care advocates for standing up in the Finance Committee (known as the Baucus Eight) and asking that single payer be included in the discussion of reform.  We noted the dozens of corporate lobbyists from the pharmaceutical and insurance industries as well as the Business Roundtable and Chamber of Commerce who were testifying — all of who had major donations to the chairman of the committee and ts members (in my comments as I was arrested I called it a Blagojevich Committee and Baucus a Blagojevich Chair).  But there was not one witness from the option most Americans (according to five years of polls) preferred — improving and expanding Medicare for All.  I also organized the Mobilization for Health Care (www.MobilizeForHealthCare.org) where more than 150 people got arrested at insurance sit-ins around the country.  And, I represented some of those arrested, pro bono, in court.  In my legal opinion the insurance mandate is unconstitutional.  The Congress does not have the constitutional authority to force Americans to buy a product from a private corporation. I hope the court rules that way because to uphold the law would be a major expansion of government power and allow for all sorts of new corporate welfare and crony capitalism.

Does the language of Rep. Weiner’s letter mirror the position of your campaign? Is there a synergy between the two?

The Wiener effort came after ours began.  We have not coordinated with him.  It is good to see more attention being given to conflicts of interest among the justices.  I was floored when I learned that Justice Thomas’ wife was collecting resumes for the Bush transition team while her husband was deciding Bush v. Gore and Justice Scalia’s son represented Bush in that case.  Bush v. Gore was an outrageous decision — to stop the vote count in Florida when they should have ordered the whole state be recounted, after all we are a representative democracy — and then for 2 of the 5-4 majority to have conflicts is a blot on the reputation of the court. (Again, my bias — I voted Nader.)

Can you walk us through the legal meaning of conflict of interest as it applies to the Thomas couple?  In other words, what’s the threshold, and why have they crossed it?

The legal threshold is failing to follow the law.  The form is simple and clear — Question 3 asks about spousal income.  He replied none — he was wrong in that response.  It was so simple a question that it is hard to imagine was a mistake and not an intention on his part.  The form also makes it clear this can bring civil and criminal penalties.  He filed false reports.  He should be punished as others have been.  Others have gone to prison for similar actions.  What does “equal justice under the law” mean? The failure to file this made it more difficult for litigants before the court to know Justice Thomas’ potential conflict, i.e. his wife’s employer would benefit from the decision. Whether he should have recused himself in those cases is not for me to say, it is for litigants to argue, but they were denied that opportunity.  He can correct the forms, but those cases and his potential conflicts cannot be re-litigated.

Devil’s advocate: OK, so I sit as a justice on a tax policy case. My wife and I benefit economically from my decision–as taxpayers. Is that a conflict of interest? (Someone in an argument with me about this issue actually asked this question)

The hypothetical about tax payers benefiting from a decision is too broad for a conflict of interest.  It is not the same as being employed by an advocacy group whose issues are being litigated before the court.  A group like Heritage Foundation can spend millions advocating on an issue.  How the decision comes down is a big deal to her employers.  I hate to even think of it, but what was the pillow talk like between the Justice and his wife. That, it is truly to ugly to consider!

How have you found the response to your campaign from various legal scholars? It seems to me that your concerns have been backed up by the few scholars willing to come out and discuss their opinions on this.

This is a new issue, and the comments being made from legal scholars are just coming in; so far I’ve seen some agreement.  I am more concerned about the legal enforcers at the Department of Justice and the DC Bar Association.  What are they going to do when someone at the pinnacle of the legal profession — a Supreme Court Justice — so obviously violates an important reporting requirement?  I don’t support either of the two parties, find them both to be corrupted by corporate cash and doing the bidding of big business rather than the people, but I suspect if this were a Republican administration and a Democratic appointed Justice we’d already have an independent prosecutor investigating the case.

What will your group do, legally and/or politically, if Justice Thomas ignores you and sits on an ACA case?

This type of corruption going to the highest court is the kind of thing that creates revolutions especially when combined with the wealth divide created by crony capitalist policies that benefit campaign contributors.  This in itself may not seem like a major issue to many but it is emblematic of special treatment than infects the political class that seems to think of itself as above the law and not subject to it. Thomas should apply “Equal Justice Under the Law” to himself and resign.  Failing that, we will keep urging those with the authority to take action to do so.

As a postscript, Kevin added: “With 74 legislators asking Thomas to recuse himself, surely they can also begin to investigate Thomas and determine whether impeachment is appropriate.”

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About Matt J. Stannard

Policy Director for Commonomics USA, longtime writer, speaker, and legal & policy consultant on economic justice and public deliberation.