Justice Scalia’s Speech to Closed-Door Tea Party Caucus Session Is Inappropriate Political Activity

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Justice Scalia’s Speech to Closed-Door Tea Party Caucus Session Is Inappropriate Political Activity

Appearance could provide grounds for recusal in upcoming cases; disqualification statute needs an upgrade

WASHINGTON - Common Cause today criticized Justice Antonin Scalia's decision to
address a closed-door session of the House Tea Party caucus as political
activity that undermines public confidence in the U.S. Supreme Court.

"The American people expect impartial justice from the Supreme Court,"
said Bob Edgar, President and CEO of Common Cause, a non-partisan
watchdog group. "The last thing we need in these divisive times is
Supreme Court justices appearing to be allied with a political faction."

"Justice Scalia's acceptance of Rep. Bachmann's invitation shows poor
judgment and could lay the ground for his recusal in future cases, such
as court challenges to President Obama's health care reform law," Edgar
said.

The Judicial Code of Conduct bars federal judges from engaging in
political activity, including "mak[ing] speeches for a political
organization" or attend[ing]...a dinner or other event sponsored by a
political organization." See Canon 5, Code of Conduct for U.S. Judges.

The code applies to all federal judges, but is not binding on the nine
Supreme Court justices, Edgar noted. Nonetheless, federal law on
disqualification of judges is binding; it requires that "[a]ny
justice...of the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.." 28 U.S.C. §
455. 

"It's clear that Congress intended Supreme Court justices to live by the
same ethics rules as every other federal judge," said Arn Pearson, an
attorney and Vice President of Programs for Common Cause. "An appearance
of bias is just as damaging to the nation at the Supreme Court level -
perhaps even more so -- as it is at the trial level."

The federal disqualification law was enacted in 1974 after a series of
judicial scandals, most notably a controversy over Justice Abe Fortas's
role as a confidant and advisor to President Johnson, whose orders and
legislation he would have to review. 

"It's time to upgrade the law to include the Judicial Conference's rules
on political activity by judges," Pearson said. Those rules were
adopted after the law's initial passage in 1974.

"Common Cause is calling for immediate legislation to ensure that the
Code of Conduct's ban on political activity applies to the high court,"
Edgar said. "Unfortunately, some justices seem to think they are above
the ethics rules. We shouldn't have two standards for what is okay and
what isn't for federal judges. I think our court of last resort is
getting way too politicized."

Last week, Common Cause asked the Department of Justice to investigate
whether Justices Thomas and Scalia should have recused themselves from
the Citizens United case, which ended a longstanding ban on
corporate spending to influence elections, because of potential
conflicts of interest. In a letter to Attorney General Eric Holder Jr.,
the group cited the justices' appearances at secretive retreats
sponsored by Koch Industries, a firm that stood to benefit from the Citizens United
decision, as well as Virginia Thomas's financial interest in the
outcome given her role as CEO of Liberty Central, a 501(c)(4) group that
used corporate money to target members of Congress in the 2010
elections.

Common Cause also asked the U.S. Judicial Conference to look into
Justice Thomas's failure to disclose his wife's income at the Heritage
Foundation and Liberty Central over a seven-year period, as required by
the Ethics in Government Act. The Judicial Conference is required refer
willful violations of the Act to the Attorney General.

"It's high time we restored the appearance of fairness and balance to the high court," Edgar said.

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Common Cause is a nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

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