Rep. Chris Murphy (D-CT)

The Code of Conduct for United States Judges provides that in almost all circumstances, “a judge should not personally participate in fund-raising activities.” Yet, because the Justices of the Supreme Court have exempted themselves from this Code, conservative Justices Scalia, Thomas and Alito have all participated in high-dollar fundraisers for right-wing political causes. In response to this unethical — but technically legal — conduct by these three justices, Rep. Chris Murphy (D-CT) is pushing a bill that would end the Supreme Court’s immunity to federal ethics law:

After learning about outrageous actions by Supreme Court Justices Clarence Thomas and Antonin Scalia, Congressman Chris Murphy (CT-5) is working on legislation to end conflicts of interest at the nation’s highest court.  In the midst of the Citizens United case, Thomas and Scalia were hosted by the infamous Koch brothers, who funded many of the attacks ads this fall, at lavish retreats intended to discuss their radical agenda and plot political strategy on issues like the Citizens United case. . . .

Murphy’s bill will:

• apply the Judicial Conference’s Code of Conduct, which applies to all other federal judges, to Supreme Court justices.  This would allow the public to access more timely and detailed information when an outside group wants to have a justice participate in a conference, such as the funders of the conference;
• require the justices to simply publicly disclose their reasoning behind a recusal when they withdraw from a case;
• require the Court to develop a process for parties to a case before the Court to request a decision from the Court, or a panel of the Court, regarding the potential conflict of interest of a particular Justice.

Murphy’s bill would make Scalia, Thomas and Alito’s fundraising activities unambiguously illegal. Yet, while ending the justices’ ethics immunity would be an important step towards restoring the wall between the Supreme Court and partisan politics, there is some reason to fear that the three conservatives would simply flout the law.

In 2005, the federal judiciary’s ethics committee released an opinion saying that it is unethical for federal judges to serve on the board of the Foundation for Research on Economics & the Environment (FREE) — a Koch-funded group which hosts free junkets for federal judges where they can ride horses, bunk with industry attorneys, and learn how to decide environmental cases in ways that benefit FREE’s corporate funders. Nevertheless, three conservative court of appeals judges — Alice Batchelder, Danny Boggs and Edith Clement — have ignored their ethical obligations and refused to drop off of FREE’s board.

To be fair, Scalia, Thomas and Alito are not Batchelder, Boggs and Clement, so it is entirely possible that they will not treat their obligations with such callous disregard once Congress removes any question that their fundraising activities are illegal. In the meantime, however, Justice Alito has simply dismissed his own profligate right-wing fundraising as “not important.”

A few months ago, ThinkProgress launched a series of investigations into relationship of the right flank of the Supreme Court — Justices Clarence Thomas, Samuel Alito, and Antonin Scalia — with corporate donors and Republican operatives. In October, we revealed, through a document obtained from Koch Industries, that Scalia and Thomas had attended secret right-wing fundraisers organized by Charles Koch to coordinate political strategy. ThinkProgress has now discovered more events attended by conservative Supreme Court justices.

The Manhattan Institute, funded by major corporations like CIGNA, Koch Industries and ExxonMobil, is a conservative think tank in New York that produces right-wing policy papers as well as sponsoring speeches for judges and Republican politicians. In 2008, Justice Thomas headlined the Manhattan Institute’s Wriston Lecture; last October, Justice Alito was the headline speaker for the same event. According to the Manhattan Institute’s website, an individual must contribute between $5,000 to $25,000 to attend the Wriston Lecture. “To be invited to the Wriston Lecture,” Debbie Ezzard, a development official at the Manhattan Institute told ThinkProgress, “you have to give $5,000.”

During the question and answer period of the Wriston Lecture, Roger Hertog, a major neoconservative donor, asked Alito if he would attend the 2011 State of the Union. Ironically, Alito — while speaking at a political fundraiser filled with powerful conservative donors — said he would avoid the event because it has “become very political”:

HERTOG: My question has nothing to do with judicial philosophy. It’s a more mundane question. It’s a calendar question. Will you attend the State of the Union this year?

ALITO: I said in my talk that judges learn primarily from experience, and I’ve found the example of those with greater experience. For many years, the more senior members of the Supreme Court — Justice Stevens before he retired, Justice Scalia — stopped the practice of attending State of the Union addresses because they have become very political events and they’re very awkward for the justices. We have to sit there like the proverbial plotted plant most of the time and we’re not allowed to applaud or those of us who are more disciplined refrain from manifesting any emotion or opinion whatsoever.

Watch it:

Scalia, Thomas, and Alito ultimately refused to attend the SOTU last night. At the end of his question and answer period during the Wriston Lecture, Thomas pledged to the room of donors to meet with them on a more informal basis whenever they visit Washington, DC.

Notably, both Thomas and Alito were introduced at the Manhattan Institute by its chairman, Paul Singer. Singer is the manager of one of the nation’s largest hedge funds, Elliott Management, and has been one of the largest contributors to the Republican Party and conservative causes in recent years. An opponent of financial regulations, Singer’s hedge fund contributed 96% of Rep. Scott Garrett’s (R-NJ) campaign committee. Garrett is the new subcommittee chairman overseeing hedge funds, including regulations passed by Democrats last year which will affect Singer’s firm.

Singer is also a “seven figure” contributor to Crossroads GPS, a front group managed by Karl Rove that has taken advantage of the new campaign finance landscape post-Citizens United. As ThinkProgress has reported, it’s not the first time Alito or Thomas has headlined a political fundraiser with corporate donors:

– In November, shortly after his Manhattan Institute fundraising appearance, ThinkProgress interviewed Justice Alito as he entered the annual fundraising gala for the American Spectator, attended by then-RNC Chairman Michael Steele and top Republican donors. Alito told us that his attendance to the fundraiser was “not important.” However, as we noted, Alito was the main draw for donors when he headlined the same event in 2008. The American Spectator is nominally a magazine; in the 90s, it served as a slush fund for wealthy donors to pay opponents of President Clinton, and recently, it organized a lobby group called the “Conservative Action Project” to orchestrate opposition to President Obama.

– In 2009, while the Supreme Court heard arguments regarding the Citizens United case, Justice Thomas was featured at the annual fundraiser for the Heritage Foundation — and sat at a table for donors with investment banker Thomas Saunders and Sen. Jim DeMint (R-SC). After the Citizens United decision, Heritage created a new nonprofit called “Heritage Action” to run attack ads against Democrats.

– In 2009, while the Supreme Court heard arguments regarding the Citizens United case, Justice Alito headlined a fundraiser for the Intercollegiate Studies Institute (ISI) — the same corporate front that funded the rise of Republican dirty trickster James O’Keefe and anti-masturbation activist Christine O’Donnell. According to the sponsorship levels for the event, Alito helped ISI raise $70,000 or more from law firms like Young Conaway Stargatt & Taylor, LLP. ISI is run partially by lobbyist James Burnley, who also is on the board of FreedomWorks.

– Last year, Justice Thomas helped headline a fundraiser for the National Association of Broadcasters, a lobby group representing News Corp, Cox Media Group, and other media companies. The event raised hundreds of thousands for NAB’s charity from a host of corporate sponsors, including the U.S. Chamber of Commerce, PhRMA, and CBS Corp.

Pursuant to our reporting, the good government group Common Cause found that Thomas had also failed to report more than $686,000 in income from his wife on his ethics disclosure forms. Monday evening, Thomas filed letters with the Supreme Court amending the gap in disclosure.

Last night, the American Spectator — a right-wing magazine known for its role in the “Arkansas Project,” a well-funded effort to invent stories with the goal of eventually impeaching President Clinton — held its annual gala fundraising event. The Spectator is more than merely an ideological outlet. Spectator publisher Al Regnery helps lead a secretive group of conservatives called the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans (the Conservative Action Project helped campaign against Democrat Bill Owens in NY-23), and block President Obama’s judicial appointments. The Spectator’s gala last night, with ticket prices/sponsorship levels ranging from $250 to $25,000, featured prominent Republicans like RNC chairman Michael Steele, hedge fund billionaire Paul Singer (a major donor to Republican campaign committees and attack ad groups), and U.S. Chamber of Commerce board member and former Allied Capital CEO William Walton. Among the attendees toasting Rep. Michele Bachmann (R-MN), the keynote speaker for the event, was Supreme Court Justice Sam Alito.

It’s not the first time Alito has attended the Spectator dinner. In 2008, Alito headlined the Spectator’s annual gala, helping to raise tens of thousands of dollars for the political magazine. According to Jay Homnick, a conservative who attended the 2008 Spectator gala, Alito spent much of his speech ripping then Vice President-elect Joe Biden as a serial plagiarizer.

As Alito entered the event last night, I approached the Justice and asked him why he thought it appropriate to attend a highly political fundraiser with the chairman of the Republican Party, given Alito’s position on the court. Alito appeared baffled, and replied, “it’s not important that I’m here.” “But,” I said, “you also helped headline this same event two years ago, obviously helping to raise political money as the keynote.” Alito replied curtly, “it’s not important,” before walking away from me.

After the gala, I again tried to approach Justice Alito — this time, with a video camera in hand — to ask him about the ethical issues raised by his right-wing political fundraising. Before I could come close to him, his security guards threatened me with arrest. Watch it:

Apparently, Alito is a regular benefactor for highly political conservative fundraisers. Last year, he headlined the fundraising dinner for the Intercollegiate Studies Institute (ISI) — the same corporate front that funded the rise of Republican dirty trickster James O’Keefe and anti-masturbation activist Christine O’Donnell. According to the sponsorship levels for the event, Alito helped ISI raise $70,000 or more.

Documents exposed by ThinkProgress last month revealed that Justice Scalia and Justice Thomas have also attended secret political fundraisers. We published a memo detailing fundraising events, organized by oil billionaires David and Charles Koch, to fund Republican campaigns, judicial elections, and groups running ads in the 2010 midterm election. The fundraisers, attended by some of the nation’s wealthiest bankers, industrialists, and other executives, help fund much of the conservative infrastructure. The memo stated the Thomas and Alito were past participants of the Koch fundraisers. Ian Millhiser, ThinkProgress’ resident legal expert, noted:

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.

That Code provides that in almost all circumstances, “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.”

While justices like Alito, Thomas, and Scalia have actively participated in highly political pro-Republican fundraisers, their rulings are increasingly in favor of the corporate right. Last month, a new study found that the Supreme Court has lurched to the far, corporate right in recent years. It found that a “cohesive” conservative majority of Justices Roberts, Thomas, Alito, Scalia and Kennedy favored the position of the U.S. Chamber of Commerce, the nation’s largest big business lobby, over 80% of the time.

Sen. Jeff Sessions (R-AL), who has been searching for excuses to vote against Judge Sonia Sotomayor, said on CNN today that Sotomayor’s testimony was “muddled” and lacked clarity. “I do think Roberts and Alito are far superior in terms of answering questions crisply and with clarity and having very little inconsistencies in what they said,” Sessions claimed. The Senate Democratic Leadership office quickly assembled a video reminding Sessions of how “crisply” Roberts and Alito dodged questions that they didn’t want to answer:

Ian Millhiser writes that Sessions clearly “doesn’t remember the Roberts and Alito hearings very well.”

Yesterday’s 5-4 decision by the Supreme Court in a landmark racial desegregation case, which instructed local authorities “that they cannot take modest steps to bring public school students of different races together,” marked a fitting yet disappointing conclusion to the first full term of President Bush’s two Supreme Court appointees, Chief Justice John Roberts and Justice Samuel Alito.

Noting the Court’s rapid rightward slide, Justice Stephen Breyer said in his dissenting opinion, “It is not often in the law that so few have so quickly changed so much.” For Roberts and Alito, the Court’s turn marks a radical departure from the false promises they made in their nomination hearings before Congress. Here’s what they said then:

ROBERTS: “I have no agenda. … Saying a judge is result-oriented…[is] about the worst thing you can say, because what you’re saying is you don’t apply the law.”

ALITO: “I think the judiciary has to [interpret broad principles of the Constitution] in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.”

Duke University law professor Erwin Chemerinsky writes in today’s Los Angeles Times that “the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.” Their short activist records already demonstrate the following:

– Alito and Roberts have shown little independence, siding with one another approximately 90 percent of the time.
– They have voted together in 21 of the 23 cases that have divided the Court 5-4 this year.
– Their decisions have come to be marked by an alarming lack of respect for precedent, irreverence for the democratic process, and disregard for constitutional history.

Slate’s Emily Bazelon writes, “And yet some liberal and moderate lawyers and academics didn’t predict this at all. These members of the legal literati urged Roberts’ nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?”

The lesson for the Senate, according to Washington Post columnist E.J. Dionne, is not to take the false assurances of Bush or any potential nominee at face value. Should another vacancy occur, Dionne said, “The Senate should refuse even to hold hearings on Bush’s next Supreme Court choice…unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.”

More in today’s Progress Report.