Thursday, July 7th, 2011

A Response to Jeff Shesol and The New York Times

The New York Times continues its fixation on Koch Industries with an op-ed article on June 28th, (“Should Justices Keep Their Opinions to Themselves?”) by Jeff Shesol ostensibly about the alleged “threat” posed by Supreme Court Justices who express their opinions publicly. Not all Justices, mind you. Only those that have opinions different than the opinions of the opinion writer.

Shesol, who is a former President Clinton speechwriter and currently a communications consultant for corporate and political clients, seems particularly concerned about Justices Antonin Scalia, Clarence Thomas and Samuel Alito and how their speaking at or simply attending meetings that reflect their philosophical beliefs could potentially “bear on the reputation of the court.”

The reality is that Justice Scalia’s and Justice Thomas’ attendance at separate Koch-sponsored conferences was completely appropriate and lawful. Further, there were no cases pending before the Justices in which Koch Industries was a party at the time of their attendance, and they did not discuss any issues specific to pending cases before the Supreme Court at the conferences.

Shesol seems to suggest that attending or participating in meetings of private organizations somehow constitutes a conflict of interest. If so, he is being selective in his concern. The record shows that Justices regularly attend such meetings. Here are three examples:

  • Justice Stephen Breyer gave the keynote address at an Anti-Defamation League Leadership Meeting (adl.org). The ADL has been before the Supreme Court in several cases considered by Justice Breyer, including after his keynote address to the organization
  • Justice Ruth Bader Ginsburg was the American Civil Liberties Union’s General Counsel, founded its “Women’s Rights Project” and was on the board before becoming a Supreme Court Justice (aclu.org). She also gave a keynote address in 2009 on the role of women in reshaping American law (law.rutgers.edu). Since joining the Court, Justice Ginsburg has participated in and authored opinions in several cases in which the ACLU was a party or filed an amicus brief.
  • Justice Sonia Sotomayor was on the board of the Puerto Rico Legal Defense and Education Fund (latinojustice.org).

Indeed, Shesol admits, “there is nothing new or unnatural about justices holding political views and seeking the company of others who share them.” Yet he goes on to draw a distinction between what he considers “natural” meetings like the ones funded by George Soros that liberal Justices attend and those that involve Koch.

The author observes, “If conference materials tell us anything, it’s that liberals ponder, conservatives plot.” Actually, this tells readers more about Shesol than about the meetings he describes.

What is the practical difference between “pondering” and “plotting”? Nothing except that “plotting” is a pejorative. And that gives away the game. Shesol’s article is an exercise in situational moral outrage. In other words, there is nothing wrong with Justices attending private meetings and talking about issues unless the meeting sponsors are not sufficiently progressive.

For Shesol, simply holding libertarian or conservative views constitutes “the appearance of impropriety.” But for a growing number of Americans, the views Justices Scalia, Thomas and Alito hold and express so unapologetically are views they increasingly recognize as their own.

The New York Times and Mr. Shesol are merely amplifying a partisan talking point that has lately found some currency in progressive circles: Justices who would find aspects of the Obama Administration’s “progressive” agenda unconstitutional should recuse themselves rather than render an opinion.

This is, of course, a deeply undemocratic notion.

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