Pundits Whitewash Supreme Court Obama-care Conflicts

Michael MukaseyDo conflicts require Republican Supreme Court Justice Clarence Thomas and his Democrat colleague Elena Kagan to recuse from next year’s decision on the Obama health care reform law? In recent days, the Washington Post editorial board and former Bush Attorney Gen. Michael Mukasey, left, writing for the Wall Street Journal, each took a mighty swing at the issue -- and struck out.

In a whitewash, each of these opinion-leaders concluded that Thomas and Kagan should be allowed to hear the case. This low bar for either strong ethical standards or for further scrutiny provides yet another example of how the press and the courts continue to fail the public. Let’s see why.

The main Thomas conflict stems from his wife’s career working as a government affairs advocate for right-wing groups who want to thwart the Obama health-care law and policies like it. These are no ordinary conflicts. Thomas hid his wife’s money on his sworn annual judicial financial disclosure forms for years. He admitted to an estimated $1.6 million in salary and gifts flowing into his household only when Common Cause caught him lying on the forms early this year. Many people have been sentenced to prison for false statements on official forms, including Republican former Homeland Security nominee and New York Police Commissioner Bernard Kerik. So this merits full investigation.

The FBI needs to investigate Thomas for a prima facie case of false statement and for a pattern of suspected bribery, honest service and conspiracy violations. Furthermore, the appearance of impropriety requires that Thomas avoid trying to decide this high-profile case, which is Obama's main claim for domestic achievement. Thomas uses his Supreme Court post "to reward his friends and punish his enemies," according to his former lover, Lillian McEwen, a retired federal prosecutor, law professor and federal administrative law judge.  McEwen, also an author and former counsel to the Senate Judiciary Committee, spoke at the National Press Club this fall to call for a Thomas impeachment because of revelations this year suggesting criminal conduct by Thomas regarding false statements on his judicial disclosure forms.

More generally, Thomas and Justice Antonin Scalia this fall appeared as the featured speakers at a fund-raiser by the Federalist Society heavily sponsored by opponents of the health care law. Their decision to help a political group raise money in this fashion illustrated yet again their lack of concern about public opinion, except that involving their political base.

Elena KaganShown at right, Kagan's conflict is from her Justice Department work as a solicitor general early in the Obama administration. She swore at her Senate confirmation hearing that she was “walled off” from Obama discussions about the law, and did not help in legal or policy papers about the law’s legality. The greatest lapse appears so far to be an email where she told wrote fellow Democrat and Harvard Law School professor Laurence Tribe, “I hear they have the votes, Larry! Simply amazing.“

Mukasey and the Post are correct that Kagan’s rah-rah, unseemly though it might be, does not merit her recusal under the law requiring avoidance of the appearance of impropriety. Where these commentators fall short is suggesting to their readers that the Kagan and Thomas situations are roughly equivalent. They're not. And even if they were, the proper solution is to scrutinize each of them more, not simply to absolve them both.
Let's not mince words. There's no reason to scrutinize only Kagan's emails, for example, and ignore evidence of potential criminality by others. Ranking Senate Judiciary Committee Republican Jeff Sessions (AL) co-authored a law review article in 1998 arguing that there is no stature of limitations on impeachment. Sessions likely wrote it for short-term, partisan purposes to advance the GOP-led impeachment of then-President Bill Clinton, a Democrat. But there's every reason to challenge Sessions and others to fight the massive corruption the country now faces by initiating better oversight of judges suspected of selling out the country. Beyond that, neither the Post nor the Journal gave a hint to their readers that these justices and their colleagues seem to regard themselves as unaccountable to anyone. The Post, in particular, pretended that the justices act as though the abide by an obligation to adhere to the ethical standards of lower court justices. But Thomas and Scalia, in particular, have shown by their behavior they regard their own inclinations as their only guideposts. Observation of their colleagues suggests that high court members consider themselves as bonded in a special club where, despite occasional low-key sniping, their primary loyalty is to support their club and each other.    

To be clear about my perspective in what are becoming highly partisan discussions, the Justice Integrity Project I lead opposed Kagan’s confirmation in 2010, primarily because of doubts about her independence from her friend Obama and the Executive Branch in civil rights issues. Our fears were especially strong regarding her likely deference to Executive Branch over-reaching on civil rights to advance what appear to be that branch's commitment to never-ending wars on ”terror” and resulting crackdowns here in the United States on civil rights. The consequences are illustrated below by news clips below culled from merely one day. One of those clips is by Salon columnist Glenn Greenwald debunking excessive reliance on Beltway "experts" on war-and-peace issues. Specifically, he debunks the widely respected Politifact site run by the St. Petersburg Times, which recently relied  on former Washington Post editorial writer-turned-think tank pundit Benjamin Wittes and similarly credentialed pundit to resolve the truth of statements GOP Presidential candidate Ron Paul. Greenwald's point, in essence, is that so-called experts, whatever their party, have biases themselves that cloud their ability to determine which of Paul's statements are factual. 

For my conclusions, it's also relevant also that I opposed the health legislation in 2009. The proposal struck me as obviously unworkable, unpopular and unduly expensive – and possibly a constitutional violation of exactly the kind arising before the Supreme Court in a hearing expected next spring. My prediction is that the law, if the Supreme Court allows it to stand in tandem with other government policies, will have the effect, among other harms, of killing prematurely large numbers of elderly because of reduced availability of Medicare. But that's another story.

Mukasey, a former federal judge before he succeeded Alberto Gonzales in 2007 for the last part of the Bush administration, is obviously a legal expert. The Post editorial board is a collection of well-credential experts as well.

Here's the problem: All of them, whether Democrat or Republican, are fundamentally apologists for fellow members of the elite in finance, inherited wealth and/or politics, including the Supreme Court. More specifically, the Post draws just four percent of its income from circulation, according to its quarterly reports, compared with 60 percent from at times controversial education schemes that draw heavily on government approval. So it's really less of a newspaper than a pro-privatization educational shill whose future is dependent on separating government loan guarantees and other favorable policies from the political leaders it ostensibly scrutinizes. That’s just one of the many perverse incentives that lead to a don’t rock-the boat coverage from its precious editorial pages.

Not surprisingly, the Post adopted an ostensibly liberal, or feminist view in arguing that the work of a Thomas spouse can’t be attributed to him. This ignored the more  important fact that her work directly increased his income in highly suspicious circumstances, including his lies on financial disclosure forms, and is inextricably tied to the criminal investigation that both of them deserve.

The Post can afford to skip all that since it still functions as essentially a monopoly newspaper, particularly when its editorial agenda is congruent with that of DC’s right-wing Washington Examiner and Washington Times dailies. But here’s an essential bit of local lore for fully appreciating what appears to be the paper’s principled adherence to the principle that spousal work and income are not relevant to conflicts: The Post's Editorial board and its columnists are a nest of two two-career couples with scant disclosure.  The most obvious conflicts are: Board member Ruth Marcus, one of is specialists on legal affairs, is married to the chairman of the Federal Trade Commission. Board member Anne Applebaum, a specialist on international affairs, is married to a recent and former high-level member of the Polish government. Columnist Robert Kagan is married to the top spokesperson for the U.S. Department of State. And columnist George Will is married to an adviser to the Texas Gov. Rick Perry’s presidential campaign.

Although Will makes a weekly disclaimer on his ABT-TV show the larger point is that Washington runs on such cozy conflicts, which are kept quiet except in the most obvious situations, such as Will's. Bottom line: Of course, the Post and its leaders don’t want the public poking around Thomas spousal conflicts. Who knows where that might lead? 

Regarding Mukasey, his function is similar in providing the appearance of rectitude but essentially protecting the status quo, particularly fellow Republicans. We saw ample evidence of that when he appointed as special prosecutors for two Bush era scandals – firing of prosecutors in the 2006 political pure and destruction of evidence of torture of terror suspects – two prosecutors who had themselves been found by a federal appeals court to have illegally withheld evidence in a major case, as we reported in 2010. 

Here’s what needs to happen: We in the public have to appreciate that these experts are not our friends, and neither are the Supreme Court Justices and other insider wheeler-dealers they are protecting from scrutiny.


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Listed here are excerpts of relevant columns

Pundits Endorse Thomas and Kagan, Malign Ron Paul

Washington Post, Health care and the court, Editorial board, Dec. 5, 2011. Even before the Supreme Court agreed to hear a challenge to President Obama’s health-care program, outside interest groups were angling to elbow out the justices they fear would not rule their way. Liberal groups argue that Justice Clarence Thomas should disqualify himself because of his wife’s work on behalf of conservative groups that opposed the legislation. Conservatives raise questions about Justice Elena Kagan’s impartiality because she was the president’s solicitor general while the legislation and its legal defense were being crafted. The case involving Justice Thomas presents the easier call....Justice Kagan’s situation presents a more delicate and difficult question. Justices are not blank slates. They come to the court with personal views on a range of policy and political issues. They have a duty to decide cases, absent an incurable conflict; this is especially true at the Supreme Court, where, unlike lower courts, no other judge may fill the void created by recusal. But they must set aside personal preferences when deciding matters of law. We trust that Justices Thomas and Kagan will do that.

Wall Street Journal, The ObamaCare Recusal Nonsense:, Michael B. Mukasey, Dec. 5, 2011. The left doesn't want Justice Thomas to hear the case. The right says Justice Kagan is too biased. The full court should decide the case. No sooner had the Supreme Court agreed to hear the challenge to the constitutionality of the Obama administration's health-care overhaul than chatter began about whether either Justice Elena Kagan or Justice Clarence Thomas, or both, should be disqualified—"recused," in the argot of the law—from considering the case. But upon even a cursory examination of the facts it is clear that neither justice should step aside. The court we have should decide the case....The persistence of recusal issues appears to have little to do with the legal merits—there aren't any—but a great deal to do with the process of how we have selected and rejected candidates for judicial office in the past few decades, certainly since the superbly qualified Robert Bork was turned down for a seat on the Supreme Court. The selection of judges has become a high stakes exercise for agenda-driven politics, with nominees often selected with at least one eye focused on their expected tilt on the issues of the day.

Salon, PolitiFact and the scam of neutral expertise, Glenn Greenwald, Dec. 5, 2011. The fact-checking site PolitiFact serves a valuable purpose when it actually performs its stated function: to “help you find the truth in American politics” by “fact-check[íng] statements” from political and media figures. But it undermines its own credibility when it purports to resolve subjective disputes of political opinion under the guise of objective expertise. That’s precisely what it did yesterday in this incredibly sloppy and often factually false analysis of Ron Paul’s condemnation of the new AUMF and detention authorities embedded in the pending Levin/McCain bill. What matters here more than PolitiFact‘s obvious, specific errors is the reason they were led to such error: namely, reliance on supposedly neutral, ideology-free “experts” who are anything but that.

Forbes, Bomb Buried in Obamacare Explodes -- Hallelujah! Rick Ungar, Dec. 5, 2011. I have long argued that the impact of the Affordable Care Act is not nearly as big of a deal as opponents would have you believe. There is, however, one notable exception -- and it's one that should have a long lasting and powerful impact on the future of health care in our country. That would be the provision of the law, called the medical loss ratio, that requires health insurance companies to spend 80% of the consumers' premium dollars they collect -- 85% for large group insurers -- on actual medical care rather than overhead, marketing expenses and profit. Failure on the part of insurers to meet this requirement will result in the insurers having to send their customers a rebate check representing the amount in which they underspend on actual medical care. This is the true ‘bomb' contained in Obamacare and the one item that will have more impact on the future of how medical care is paid for in this country than anything we've seen in quite some time. Indeed, it is this aspect of the law that represents the true ‘death panel' found in Obamacare - but not one that is going to lead to the death of American consumers. Rather, the medical loss ratio will, ultimately, lead to the death of large parts of the private, for-profit health insurance industry.

Washington Post, Health-care case brings fight over which Supreme Court justices should decide it, Robert Barnes, Nov. 27, 2011. Just a little more than an hour after some House Democrats recently demanded an inquiry into Supreme Court Justice Clarence Thomas’s ethics, Senate Republicans stepped up the pressure on Justice Elena Kagan to take herself out of the court’s decision on the health-care reform act. The process repeated itself a few days later. House Judiciary Committee Chairman Lamar Smith (R-Tex.) called for the release of more documents about Kagan’s role as President Obama’s solicitor general; the liberal group People for the American Way came out with another broadside against Thomas. Washington Post, How ethical are these Supreme Court justices? Online Q&A With Ethics Expert John Steele, Nov. 28, 2011.

Savannah Now / Savannah Morning News, A monumental day at Pin Point, Chuck Mobley, Nov. 20, 2011. With a powerful and poignant mixture of preaching and preservation, U.S. Supreme Court Justice Clarence Thomas and the community of Pin Point celebrated the unveiling of a historical marker and the dedication of a heritage museum Saturday. I am a son of Pin Point,” said Thomas, who was appointed to the Supreme Court in 1991.

Huffington Post, Clarence Thomas Assailed for Alleged Ethical Lapses by More House Dems, Rep. Louise Slaughter (D-N.Y.) is turning up the heat on Justice Clarence Thomas based on new information that builds upon previous reports of his alleged ethical lapses. In late September, Slaughter had sent a letter to the Judicial Conference of the United States to request official action on Thomas' multi-year failure to disclose his wife's income from various conservative think tanks and activist organizations. The Judicial Conference is the principal policy-making and administrative body for the federal court system. On Friday, Slaughter submitted a new letter, this time addressed to Chief Justice John Roberts in his capacity as the presiding officer of the Judicial Conference, to update and clarify the September letter.

Common Cause, Hours after considering challenges to health care reform, Supreme Court justices are honored at fundraiser sponsored by law firms representing reform opponents, Mary Boyle, Nov. 14, 2011. Hours after considering whether to hear challenges to national health care reform, Supreme Court Justices Clarence Thomas and Antonin Scalia were honored Thursday at a fundraiser sponsored in part by law firms engaged in the litigation. This is an apparent breach of ethical standards that apply to every other federal judge. That morning, all nine justices met to review appeals from lower federal courts. Their agenda included a lawsuit challenging the constitutionality of the Affordable Care Act, which the court announced today it would hear this term. A few hours later, Scalia and Thomas were honorees and speakers at an annual fundraising dinner for the Federalist Society, which describes itself as “conservatives and libertarians interested” in the law.

News From Underground, Clarence Thomas—perjurer, tax cheat, fanatic, party operative—has GOT TO GO, declares Judge Lillian McEwen (his former lover), Andrew Kreig Interview of Lillian McEwen,Edited by Mark Crispin Miller, Oct. 26, 2011.

OpEd News, Thomas Must Resign, Says Former Judge, Lover, Andrew Kreig, Oct. 26, 2011.

Huffington Post, A Question of Integrity Hangs Over the U.S. Supreme Court, Nan Aron, Oct. 24, 2011. This is going to be a big year for the Supreme Court. This election cycle is going to remind everyone of the effects of its infamous Citizens United decision, as vast sums of corporate money flood the electoral system. With so much at stake, with deeply contentious issues on the docket, and with public perceptions of the Court's legitimacy starting to shift into negative territory, one would think that Supreme Court justices would be particularly careful to distance themselves from anything that would call their objectivity into question or that would align them directly with the hyper-partisan political forces roiling the country. Unfortunately, that's not what's happening, as revealed in a new short film from Alliance for Justice, called A Question of Integrity: Politics, Ethics, and the Supreme Court.


Bipartisan Crack-down on U.S. Civil Rights

Huffington Post, SWAT Raids, Stun Guns, And Pepper Spray: Why The Government Is Ramping Up The Use Of Force, Radley Balko, Dec. 5, 2011. America's police departments have been moving toward more aggressive, force-first, militaristic tactics and their accompanying mindset for 30 years. Tough-on-crime sheriffs now sport tanks and hardware more equipped for battle in a war zone than policing city streets. Seemingly benign agencies such as state alcohol control boards and the federal Department of Education can now enforce laws and regulations not with fines and clipboards, but with volatile raids by paramilitary police teams.

Business Insider, The Pentagon Is Offering Free Military Hardware To Every Police Department In The US, Robert Johnson, Dec. 5, 2011. The U.S. military has some of the most advanced killing equipment in the world that allows it to invade almost wherever it likes at will. We produce so much military equipment that inventories of military robots, M-16 assault rifles, helicopters, armored vehicles, and grenade launchers eventually start to pile up and it turns out a lot of these weapons are going straight to American police forces to be used against US citizens. Benjamin Carlson at The Daily reports on a little known endeavor called the "1033 Program" that gave more than $500 million of military gear to U.S. police forces in 2011 alone. 1033 was passed by Congress in 1997 to help law-enforcement fight terrorism and drugs, but despite a 40-year low in violent crime, police are snapping up hardware like never before. While this year's staggering take topped the charts, next year's orders are up 400 percent over the same period. This upswing coincides with an increasingly military-like style of law enforcement most recently seen in the Occupy Wall Street crackdowns. Tim Lynch, director of the Cato Institute's project on criminal justice told The Daily, “The trend toward militarization was well under way before 9/11, but it’s the federal policy of making surplus military equipment available almost for free that has poured fuel on this fire.”

OpEd News, The Obama Regime has no Constituional scruples, Paul Craig Roberts, Dec. 5, 2011. Under AUMF, the executive branch has total discretion as to who it detains and how it treats detainees. Moreover, as the executive branch has total discretion, no one can find out what the executive branch is doing, who detainees are, or what is being done to them. Codification brings accountability, and the executive branch does not want accountability.

Carl LevinHuffington Post, Obama Should Veto Empire Over Republic, Coleen Rowley, Dec. 3, 2011. The political, military industrial, corporate class in Washington DC continues to re-make our constitutional republic into a powerful, unaccountable military empire. Yesterday the U.S. Senate voted 93 to 7 [in a bill co-sponsored by Sens. Carl Levin (D-MI), right, and John McCain, (R-AZ)] to pass the National Defense Authorization Act (NDAA) for Fiscal Year 2012, which allows the military to operate domestically within the borders of the United States and to possibly (or most probably) detain U.S. citizens without trial. Forget that the ACLU called it "an historic threat to American citizens." This bill is so dangerous not only to our rights but to our country's security that it was criticized by the Directors of the FBI, the CIA, the National Intelligence Director and the U.S. Defense Secretary! For the first time in our history, if this Act is not vetoed, American citizens may not be guaranteed their Article III right to trial. The government would be able to decide who gets an old fashioned trial (along with right to attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo. Does anyone remember that none of the first thousand people the FBI rounded up after 9-11, and which were imprisoned for several months (some brutalized), were ever charged with terrorism? Does anyone remember that hundreds of the Gitmo detainees who were handed over to their American military captors in exchange for monetary bounties were found, after years of imprisonment, to have no connection to terrorism?

Salon, The We-Are-At-War! mentality, Glenn Greenwald, Dec. 3, 2011. Two significant events happened on Thursday: (1) the Democratic-led Senate rejuvenated and expanded the War on Terror by, among other things, passing a law authorizing military detention on U.S. soil and expanding the formal scope of the War; and (2) Obama lawyers, for the first time, publicly justified the President’s asserted (and seized) power to target U.S. citizens for assassination without any transparency or due process. I wrote extensively about the first episode on Thursday, and now have a question for those supporting the assassination theories just offered by the President’s lawyers. The government lawyers, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, did not directly address the al-Awlaki case. But they said U.S. citizens do not have immunity when they are at war with the United States. Pentagon counsel Jeh Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy. When Obama lawyers refer to “U.S. citizens who take up arms with al-Qaida,” what they mean is this: those whom the President accuses (in secret, with no due process or evidence presented) of having taken up arms with al-Qaida. When they refer to “battlefield targeting decisions,” they do not mean a place where there is active fighting, but rather: anywhere in the world an accused Terrorist is found (leaving no doubt about that, Johnson decreed that the limits of “battlefield v. non battlefield is a distinction that is growing stale“). In other words: the whole world is the battlefield, a claim Obama officials have long embraced, and someone is a Terrorist the minute the President declares him to be one: the President is the sole judge, the sole jury, and now even the sole executioner.

Sydney Morning Herald, US targets WikiLeaks like no other organisation, Philip Dorling, Dec. 3, 2011. WikiLeaks is the target of an ''unprecedented'' US government criminal investigation, Australian diplomatic cables obtained by the Herald reveal. The cables also show the Australian government wants to be forewarned about moves to extradite Julian Assange to the United States, but that Australian diplomats raised no concerns about him being pursued by prosecutors on charges of espionage and conspiracy.

Harper's Magazine, Panel Discussion: The 9/11 Effect (Video), published, Dec. 2, 2011. On September 14, 2011, Harper’s Magazine hosted The 9/11 Effect, a panel discussion at the City University of New York. Moderator Amy Goodman of Democracy Now! explored the lasting effects of the war on terrorism with lawyer and Harper’s contributing editor Scott Horton, winner of a National Magazine Award for his exposé of inmate abuse at Guantánamo Bay; Fordham Law School’s Karen Greenberg, former director of NYU’s Center on Law and Security and author of “The Least Worst Place: Guantanamo’s First 100 Days”; Petra Bartosiewicz, Harper’s contributor, most recently of “To Catch a Terrorist,” in the August 2011 issue; and Michael German, ACLU Policy Counsel and former FBI Special Agent. The event was introduced by John R. MacArthur, publisher of Harper’s Magazine.

Bush-Obama Whitewash of U.S. Attorney Purge and CIA Evidence Destruction Probes

Nieman Watchdog, New Questions Raised About Prosecutor Who Cleared Bush Officials in U.S. Attorney Firings, Justice Integrity Project, July 25, 2010.  Four days before Nora Dannehy was appointed to investigate the Bush administration’s U.S. attorney firing scandal, a team of lawyers she led was found to have illegally suppressed evidence in a major political corruption case. This previously unreported fact calls her entire investigation into question as well as that of a similar investigation by her colleague, John Durham, of DOJ and CIA decision-making involving torture.