WASHINGTON–Rep. Chris Murphy is drafting a bill that will delve into complex constitutional issues, spotlight judicial ethics, and rev up liberal activists key to his Senate aspirations.
When Congress returns from its week-long President’s Day recess, the 5th District Democrat says he will introduce legislation cracking down on what critics say are possible conflicts of interest by the Supreme Court’s two most conservative justices, Antonin Scalia and Clarence Thomas.
Murphy’s bill is sure to delight liberal groups and enrage conservatives. As for its legislative prospects, it may not get far in the GOP-controlled House, although Murphy said he’s planning to reach out to a pair of Republicans who have sponsored a different bill that would also bring new oversight to the federal courts.
Murphy said in an interview that he’s motivated by deep concerns about the fate of the federal health care overhaul, which is now being challenged in the courts by Republican attorneys general around the country. The Supreme Court is all but certain to issue the final judgment on whether the health care law is constitutional or not.
And Murphy says the justices’ impartiality on the health care measure–as well as on other issues–is in question.
“What we know is that both Justice Scalia and Justice Thomas have taken a much higher profile role with the groups that are politically opposed to the health care bill,” Murphy said. “I’ve become more and more concerned about the possible conflicts of interest that exist there.”
Thomas has twice made headlines in recent weeks for his ties to conservative groups. First, he filed updated disclosure forms reporting his wife’s income for the last six years–income he had previously failed to report, despite a requirement that he do so, in what Thomas said was a misunderstanding of the rules.
Among Virginia Thomas’ employers listed in the amended forms: the Heritage Foundation, a conservative Washington think tank that has opposed a range of Democratic initiatives, including the health care law. Common Cause, a liberal good-government group, said its research indicates Virginia Thomas earned about $686,000 from 2003 to 2007 from Heritage.
Justice Thomas was in the news again last week, after Common Cause questioned a trip he made three years ago to a retreat organized by Charles and David Koch, billionaire brothers who have poured millions of dollars into various conservative political causes.
The New York Times reported that initially, a Supreme Court spokesperson said Thomas made a “brief drop-by” at the retreat. But his disclosure forms indicate that the Federalist Society, a conservative legal group, paid his expenses for four days while the retreat was underway.
Scalia had also attended a Koch retreat and been a featured speaker, with his expenses picked up by the Federalist Society. In January, Scalia made more waves when he accepted an invitation to speak to a closed-door meeting of the Tea Party caucus in Congress.
Common Cause and other critics have lambasted the two jurists for these actions. In particular, Common Cause has asked the Justice Department to investigate whether the two justices ties’ to conservative groups should have prompted them to recuse themselves from the Citizens United case, a sweeping Supreme Court decision that paved the way for unlimited corporate and union donations in federal elections.
Individuals associated with Koch Industries, the energy firm operated by David and Charles Koch, gave more than $1.8 million in the 2010 elections, and the company’s PAC gave $2.6 million in 2010. The lion’s share of those contributions went to GOP candidates.
David Koch also chairs and helps fund Americans for Prosperity, a conservative political group that was highly active in the 2010 elections and has made the health care law a prime target.
“At least two of the justices on the Supreme Court seem to be in some sort of coordination with the political forces that are opposed to the health care bill,” Murphy charged.
He accused Thomas of “hiding” his wife’s income from groups opposed to the health care bill and campaign finance reform. Thomas, when he released his updated forms, issued a statement saying the income was “inadvertently omitted due to a misunderstanding of the filing instructions.”
Murphy said the recent revelations have illustrated that “we have no clue how many conflicts of interest there are on the Supreme Court, because the justices aren’t held to the same standard that every other federal judge is held to.”
Murphy said he’s working actively with Common Cause on his legislation. The measure would impose the Judicial Conference’s Code of Conduct, ethics rules already in place for other federal judges, on the Supreme Court. Murphy said the code would require more timely and detailed information to be provided to the public about a justice’s activities, such as attendance at retreats sponsored by outside advocacy groups.
Murphy’s bill would also require the justices to publicly disclose their reason for recusing themselves from a case. And perhaps most controversially, the bill would require the court to develop a process through which parties could request that a justice withdraw from a case because of a possible conflict of interest.
“We just don’t have good information on the type of conflicts or relationships that justices may have, but we also don’t have a process for deciding whether a Supreme Court justice is so conflicted on a case that they shouldn’t judge,” Murphy said.
He noted that right now, the only person who decides whether a justice should recuse him or herself is the judge, and there’s no review of that decision. “There’s nowhere to bring your contest of a justice who is conflicted,” he said. “You have to set up a process within the Supreme Court to adjudicate” those questions.
Conservatives say Murphy’s bill is unnecessary. And while some legal scholars said such a measure would be a positive step, others say it’s unclear whether such an approach is workable–or whether it might further politicize the court.
“I am not aware of any influence exerted on Supreme Court justice’s votes by illegitimate corporate sources,” said Robert Bork, the former federal judge and U.S. solicitor general whose own Supreme Court nomination was defeated by the Senate in 1987. “The main purpose of a bill like this would seem to be the harassment of Supreme Court justices, particularly conservative justices, by ideological groups.”
Bork said the proposed recusal process, in particular, is ripe for abuse.
“No matter how a justice responds to such questions, he will be attacked by groups seeking to pressure the Court or to silence some of its members. We have a system that works quite well and I see no reason to tamper with it,” said Bork, an influential conservative scholar who was nominated to the high court by Ronald Regan.
However, Stephen Gillers, a legal ethics expert at New York University, said there was definitely a need to increase scrutiny of the Supreme Court.
He noted that the nine justices on the court are the only federal judges in the U.S. not bound by a code of ethics and said he would strongly support an effort to apply the Judicial Conference’s Code of Conduct to the nation’s highest court.
Gillers said the recusal measure should even be expanded, forcing the justices to explain themselves when they haven’t recused themselves, as well as when they have.
“There may be legitimate privacy reasons not to disclose the reasons to recuse, but a decision not to recuse should be accompanied by an explanation, “GiIllers said in an email response to questions. “Murphy should extend this provision to all federal judges.”
Stephen Wermiel, a law professor and Supreme Court expert at American University, said he wasn’t so sure the current brouhaha merited such a response. Any legislation to address the latest revelations, he said, might raise more questions than it answers.
“From time to time, we seem to have flare-ups of concern about justices not being sensitive to conflicts of interest, and now is one of those,” Wermiel said. “These flare-ups sometimes die down on their own, without a major system overhaul, which might be an answer to the current furor.”
He conceded that the court’s “self-enforcing approach” invites questions about whether there is enough accountability for the justices. “This is especially troubling when it seems that some justices may be pushing the envelope of political involvement and exposure,” he said.
“But,” Wermiel added, “regulation or external solutions should also raise concerns about compromising the judicial independence of the justices.”
He noted, for example, that if a group of justices were appointed to decide the recusal of another justice, it could become a free-for-all.
“What insulates that process from conservatives getting a liberal out of a case? Or liberals forcing a conservative out?” he asked. “And if justices explain their recusals, on the one hand we’d get more openness and information. On the other hand, this might make it possible to strategize and figure out how to exclude or include parties in a lawsuit in order to force justices out or keep them in.”
While greater disclosure “is usually a good thing, it may be more complicated here,” Wermiel concluded. “In short, [I’m] not sure seemingly easy answers are really so simple.”
Murphy dismissed questions about whether his bill might further politicize the court.
“Right now, we don’t know if this is a problem with only Justices Scalia and Thomas, or if it is more widespread,” he said. “Either way, the American people’s faith in the impartiality of the Supreme Court needs to be restored, and the only way we can do that is to shine sunlight on what these justices are doing in their spare time, and who is paying for it.”
As for the bill’s fate, Murphy said he was planning to talk to Rep. James Sensenbrenner, R-Wis., and Sen. Charles Grassley, R-Iowa, members of the House and Senate judiciary committees respectively, about a proposal they’ve sponsored calling for an inspector general to oversee the federal courts.
In the meantime, Common Cause is seeking a Senate sponsor for Murphy’s forthcoming bill.
“We want to help him do as much as possible to move this bill forward,” said the group’s spokeswoman, Mary Boyle. “It’s clear from the work we’ve done that basically there’s very little accountability and transparency at the Supreme Court,” and Murphy’s bill would change that, she said.