Mounting Evidence Demands Explanations from Thomas, Scalia

Responding to comments made over the weekend by Supreme Court Justice Clarence Thomas, Common Cause on Monday challenged Thomas, Justice Antonin Scalia and the Federalist Society to provide answers to questions around the two justices' attendance at political strategy and fundraising "seminars" hosted by Koch Industries.

"Asking for more accountability and transparency from the nation's highest court isn't undermining it," said Common Cause President Bob Edgar, referring to a speech Thomas made in Charlottesville, Va., to conservative law students, in which he was quoted as saying that his critics "seem bent on undermining" the high court.

On Monday, Common Cause sent letters to Thomas, Scalia and the Federalist Society, requesting help in efforts to determine the extent of the justices' participation in secretive political strategy and fundraising events sponsored by Koch Industries. Mounting evidence that the justices attended the Koch meetings does not square with the Court's statements on the controversy to date and requires a full accounting, the group asserted.

"It's past time for Justices Thomas and Scalia to provide all the details of their participation - apparently on the Federalist Society's dime - at Koch-sponsored political strategy and fundraising meetings," Edgar said.

"Bits of conflicting information that have dribbled out since Common Cause began asking questions about this matter highlight the need for release of the full story," Edgar said. "It's now difficult to accept the court's initial claim that Justices Scalia and Thomas merely spoke at 'separate' Federalist Society dinners and that Justice Thomas just 'dropped-by' one of the Koch sessions."

A report in last Thursday's Washington Post was particularly disturbing, said Arn Pearson, Common Cause's vice president for programs, and an attorney. While earlier accounts indicated that the Federalist Society financed California trips for Justices Scalia and Thomas to speak at Federalist dinners and that Justice Thomas merely stopped by a Koch "seminar" that coincided with his appearance, the Post reported that the Federalist group had "no meetings of its own at the venue, an exclusive resort in Indian Wells, Calif.

"Common Cause sought clarification on this point Thursday in a call placed to Eugene Meyer, the Federalist Society's president," Pearson said. "While we can find no record of Federalist dinners or other events coinciding with the Koch meetings on the society's otherwise voluminous website, we wanted to ask Mr. Meyer about it directly. He has yet to return our call however, so we've put our inquiry in the form of a letter. We're sending similar letters directly to Justices Scalia and Thomas, seeking additional details about their trips.

Here are the facts as we now know them:

1. On September 24, 2010, Koch Industries sent an invitation for its January 2011 retreat in Palm Springs stating that Justices Scalia and Thomas had been "featured" at past retreats. The invitation packet stated that:

"This action-oriented program brings together top experts and leaders to discuss - and offer solutions to counter - the most critical threats to our society. ...Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas; Governors Bobby Jindal and Haley Barbour; commentators John Stossel, Charles Krauthammer, Glenn Beck, and Rush Limbaugh; Senators Jim DeMint and Tom Coburn; and Representatives Paul Ryan, Mike Pence, and Tom Price."

2. Justice Thomas's 2008 financial disclosure forms state that he was reimbursed by the Federalist Society for four days of transportation, accommodations and meals in Palm Springs on January 26-29, 2008. Those dates - arriving on a Saturday and departing on a Tuesday - fit the pattern of Koch retreats held in Palm Springs for the last eight years.

3. The Federalist Society also paid the travel expenses for Justice Thomas's wife, Ginni Thomas.

4. Justice Scalia's 2007 financial disclosure form states that the Federalist Society reimbursed him for transportation, food and lodging for a trip to nearby Indian Wells on January 29, 2007.

5. There is no record of any Federalist Society event in the Palm Springs area for those dates.

"The only way to put this matter to rest is for Justices Thomas and Scalia, as well as the Federalists and the Kochs, to produce a full accounting of their attendance and involvement at Koch Industries retreats," Edgar said. "That accounting needs to include programs and attendance lists for the retreats in question, and detail on the participation of the jurists in retreat activities."

"Nothing less than the court's reputation as an impartial tribunal is on the line," Edgar said.
Common Cause last month urged the Justice Department to probe reports that Justices Thomas and Scalia may have taken part in private, Koch-organized political events during 2007 and 2008. If substantiated, the justices' participation could be grounds an appearance of bias requiring their retroactive recusal from participation in a landmark campaign finance case, Citizens United v. FEC, decided by the Court last year.

Decided on a 5-4 vote, with Thomas and Scalia in the majority, Citizens United wiped out decades of common sense restrictions on corporate and union spending on elections. The decision allowed companies to tap their treasuries to fund political ads and triggered the flow of nearly $300 million in "independent" expenditures into last fall's Congressional campaigns, roughly half of it from secret donors.