May 25, 2011

Behind the Attacks on Scalia, Thomas & Alito

In an article in the June issue of the American Spectator, CFJ’s Curt Levey explores the motivations behind this year’s “aggressive—and, at times, personal—attack on the … impartiality and ethics of Justices Clarence Thomas, Antonin Scalia, and … Samuel Alito.” (quoting Politico) The attacks have focused on contacts with the Koch brothers and others that allegedly compromise the three justices’ ability to impartially decide cases, particularly the Citizens United campaign finance decision and the lawsuits challenging Obamacare. Justice Thomas’s wife, Ginni, has also been a subject of the ethics assault.

In his article, Levey points out that “Until the recent assault on the ethics of conservative Supreme Court justices, the left had largely reserved the politics of personal destruction for judicial nominees, preferring less personal attacks on sitting judges.” With so little substance behind the ethics charges—“even liberal legal experts have brushed off the complaints as hollow” says Politico—the question of what is motivating this escalation arises.

Levey notes that
“The stated goal of the mudslingers is recusal ... But recusal can’t be the endgame of this ethics campaign. Liberals know they have little hope of convincing Thomas to recuse himself in the Obamacare cases and even less hope of effecting retroactive recusal [of conservative justices] in Citizens United.”
Levey identifies the motivations that are really behind the attacks, including:

1) Intimidation and delegitimization

Levey concludes that “liberals hope their attacks on the conservative justices will ensure that the justices are intimidated and the public is suspicious when the most controversial aspects of Obama’s agenda … reach the Supreme Court … [If intimidation] fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.”

2) Fighting a potential Kagan recusal

Levey notes that “the Supreme Court’s vote on the constitutionality of Obamacare is likely to be very close, so liberals need Kagan’s vote and will fight hard against any pressure for her recusal” based on her service in the Obama Justice Department as it began formulating its legal defense of ObamaCare. He asks “Are the attacks on the conservative justices the beginning of that fight?”

3) Heightened paranoia about the “vast right-wing conspiracy”

“That the accused justices are beholden to conservative billionaires [and right-wing groups] can be seen in their attendance at Koch-associated events and their ties to other parts of the billionaire-funded web,” says Levey, describing the view of the left.

4) Apoplectic rage at Citizens United

The left sees it as “an illegitimate decision, arrived at by at least two justices who should never have participated in it.” (quoting Clinton Labor Secretary Robert Reich) “The belief that Citizens United particularly benefits the conservative forces Justices Thomas, Scalia, and Alito are allegedly conspiring with makes the decision even harder for the left to swallow,” Levey explains.

5) Politicization of the courts

Levey explains that “it should come as no surprise that the ethics allegations … come on the heels of the left’s decades-long endeavor to politicize the courts. … Deprived of a sympathetic Supreme Court lineup, frustrated by their inability to hijack the confirmation process, and convinced that the Roberts Court was intent on paring down the gains of liberal judicial activism, the left was desperate to find a new tool for manipulating the High Court. … Anger over Citizens United and the 2010 election results added the final sparks to liberal frustration, and the assault against the ethics of Scalia, Thomas, and Alito was on.”

The full text of Levey’s article, “Ganging Up on Justices Thomas, Scalia, and Alito,” is not yet available online.