Dem
51
GOP
49
By now, many people know that Justice Clarence Thomas took favors, including luxury vacations, from a Republican billionaire who was keenly interested in some matters before the Supreme Court. Turns out Thomas wasn't the only one. ProPublica now has another mind-boggling report out that Justice Samuel Alito also went on at least one luxury vacation funded by a hedge fund billionaire, Paul Singer, who had business before the court. This seems to be common practice over there.
The trip occurred in 2008, when Singer flew Alito to an exclusive ($1,000/day) lodge in Alaska on his private jet. If Alito had chartered the jet himself, it would have set him back about $100,000. Alito did not report the gift on his disclosure form although failure to report a gift this big is a violation of federal law. Just coincidentally, Singer's hedge fund had a dispute with Argentina that played out in the Supreme Court. Alito did not recuse himself and voted with the 7-1 majority in Singer's favor. Argentina ultimately paid the hedge fund $2.4 billion. Sounds like a pretty good return for giving a "friend" a free plane ride and a few days at a nice lodge (owned by Singer).
The whole thing gets even more incestuous, politically, when you take note of a few additional details. Also on the trip was Leonard Leo, head of the Federalist Society, which advises Republican presidents on judicial picks. And Singer himself is a big-time Republican donor. He has given over $80 million to the GOP over the years and also large amounts to Republican think tanks.
Prof Charles Geyh of the Indiana University Law School, who is an expert on recusals, said: "If you were good friends, what were you doing ruling on his case? And if you weren't good friends, what were you doing accepting this [the free trip]?" Such a deal would be illegal for nearly all federal workers, who are banned from taking even modest gifts. However, the Supreme Court is expected to police its own members.
Alito has responded to the report by publishing an op-ed in The Wall Street Journal saying that he believes that the reporting requirement excludes "accommodations and transportation to social events." The law does exclude gifts of food and lodging at a friend's house, but the lodge he stayed at is a commercial property, open to any fisherman who wants to pay the price. It is not Singer's home. The law also explicitly says that gifts of private jet travel must be reported. ProPublica found at least six other examples of federal judges reporting gifts of private jet travel.
A spokesman for Singer says that the two did not discuss any business matters on the trip. That might even be true. At this level, it isn't even necessary to have the donor explicitly say: "Oh by the way, I'd appreciate your vote on my case." The quid pro quo is implicitly understood by all parties. It would probably be considered gauche to actually say it out loud, even on a fishing trip in rural Alaska with nothing but fish and seals and the Palin family to hear it.
Slate's two legal beagles, Dahlia Lithwick and Mark Joseph Stern, published an interesting conversation on the subject. They see an incipient divide on the Supreme Court between the far right, namely Thomas and Alito, who want to go hard right as fast as possible and don't care a bit about the Court's reputation, and the four other (not-quite-so-far-right) Republican appointees, who would prefer to inch slowly to the right and preserve the Court's reputation (and keep the Democrats in Congress from reining in the Court next time they get the power to do so).
Democrats are already up in arms, but they can't do much now. When the Thomas scandal came out, Senate Judiciary Committee Chairman Dick Durbin (D-IL) said: "We wouldn't tolerate this from a city council member or an alderman. And yet the Supreme Court won't even acknowledge it's a problem." With this latest development in the ethics-challenged Court, Durbin announced yesterday that the Judiciary Committee will vote on an ethics bill for the Supreme Court in July. He said that the highest court should not have the lowest ethical standards.
Depending on whether Sen. Dianne Feinstein (D-CA) is up and running in July, the bill will probably clear the Committee. But it will get nowhere in the full Senate. Minority Leader Mitch McConnell (R-KY) yesterday told the Democrats to stay out of the Supreme Court's business. He said it was up to the chief justice to handle ethical issues on the Court. We count that as a "no" vote on Durbin's bill.
And McConnell is pushing back despite the fact that all the bill will do is apply the same standards to the Supreme Court as applies to the lower courts. Enforcement will be largely up to the Court itself. If a justice gets a nice $100,000 vacation for free and doesn't put it on his disclosure form, well, who's to know? And if the justice is caught, the only remedy is impeachment and conviction, which is very, very unlikely, or the DoJ bringing a criminal case, which is almost as unlikely.
One possible effect of Durbin's bill is putting pressure on Chief Justice John Roberts to take some action himself to try to forestall Congress doing it for him. How likely that is probably depends on how much publicity Durbin's bill gets and how close the vote is. He is keenly aware of the Court's reputation and his legacy and his actions are certainly influenced by those factors. (V)