Follow the Money

AP photograph  (no photographer listed) accompanied Politico's October 19 story, "Ginni Thomas seeks Anita Hill apology."



Ginni Thomas crossed our collective radar screen this week, when Charlie Savage reported she viewed herself as holding out an "olive branch" on October 9 when she left a voice mail for Anita Hill demanding an apology, an explanation and perhaps prayer. On the very morning she had called Hill, the New York Times page A1 featured Jackie Calmes reporting "Activism of Thomas’s Wife Could Raise Judicial Issues."

Ginni Thomas married to Justice Clarence Thomas 23 years ago. According to a February 18 interview with Hot Air's Ed Morrissey, Ms. Thomas--a long-time conservative advocate associated with the Chamber of Commerce and the Heritage Foundation--founded Liberty Central in November 2009 to roll back Obama’s left-leaning ways.

We cannot see into the mind of Ginni Thomas as she called Hill, but I found myself asking if Ms. Thomas were motivated by more than a desire to stand by her man?  

It's hard to follow Deep Throat advice to Woodward and Bernstein to "follow the money."


Poring over LC’s sole form 990 filed for FY2009, I wondered who would give $500,000 and $50,000 since Liberty Central is organized as  a non-profit under IRS Code Section 501(c)4 and can't offer donors tax deductions. I also wondered how much Ms. Thomas will receive as CEO, since she (conveniently?) collected no salary during the period covered by the tax form.

Next I looked at Liberty Central's website and noticed that the organization claims to be "non-partisan," its scorecard for my state graded all the Democrats "F" except one "D" and all Republicans "A."

The IRS shields (c)4 donors from scrutiny

 Any (c) 4 group gets the protection for its donors established under NAACP v. Alabama. And, under current law, (c)4’s do not have to report electioneering-types of advertising more than 60 days before a general election or 30 days before a primary. They do not have to report non-broadcast communication--mail, Internet, telephone---nor candidate-specific issue ads that fall outside the legal definition of political speech.

We do know Justice Thomas "sole outlier" on disclosure in Citizens United

In January 2010, Justice Thomas, voted in a 5-4 majority in the landmark Citizen's United decision , to equate corporate and union donations with free speech, thus allowing unlimited campaign donations. Justice Thomas went further.

NYU Law School’s Adam Scaggs wrote me in an email interview,

All eight of Justice Thomas's colleagues upheld the disclosure rules, on the grounds that the public has a real interest in knowing who spends in political races. Thomas was the sole outlier in voting against disclosure.

Scaggs emphasized,

it's important that Ms. Thomas doesn't lose any of her First Amendment rights just because her husband is a judge…The concern is that Justice Thomas would face a conflict of interest if...ever asked to hear a case involving the groups that have given major contributions to his wife's group. Judges — including Supreme Court justices — are ethically obligated to step aside from any cases in which they have a financial stake, and they must also step aside when their impartiality might reasonably be questioned……The public would not know that there is a conflict if the identity of the donors has not been disclosed.

We do know that Koch Industries rallies the right twice a year to plan on how to sway public policy and that former guests include Justice Clarence Thomas. 

Non-disclosure should not be germane to all (c)4's

The non-disclosure precedent of NAACP v. Alabama is only germane to (c)4’s, Campaign Legal Center's Trevor Potter wrote me,

IF the groups can make the arguments made by the NAACP--that their donors would be killed or beaten or their houses burned down if their identities were known.

We do know that during this election cycle, record donations are flowing into the (c)4’s.

For instance, Doyle McManus reports that one new such group, CrossroadsGPS, advised by Karl Rove,

 says it's going to spend $65 million this year — much of it to try to defeat [Senate Majority Leader Harry Reid.

If corporations have free speech, let's at least know who’s talking. 

Supreme Court reporter Lyle Denniston has suggested we could increase transparency

by more rigorous disclosure legislation, in hopes of exposing more vividly who is in fact benefiting and, perhaps, by embarrassing the beneficiaries.

In Congress, the House passed the DISCLOSE Act, (H.R. 5175). Republicans in the Senate blocked a vote, most recently on September 24.

 It's time for Congress to let us "follow the money."

Sandra Day O'Connor

From the archives, I came across this reportage of Sandra O'Connor's speech at Georgetown University shortly after she stepped down from the Supreme Court. What a gal: "Former top judge says US risks edging near to dictatorship: Sandra Day O'Connor warns of rightwing attacks--Lawyers 'must speak up' to protect judiciary"

I'll try to find a transcript later. I've gotta run.

Supreme Court Rules Gitmo Prisoners Have Habeas Rights

The Jurist report is here.

In the SCOTUS Blog, Lyle Denniston reported June 12,

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.

The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as “enemy combatants” — the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”

Justice Anthony M. Kennedy’s opinion for the majority in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) was an almost rhapsodic review of the history of the Great Writ. The Suspension Clause, he wrote, “protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.” Those who wrote the Constitution, he added, “deemed the writ to be an essential mechanism in the separation-of-powers scheme.”

Even though the two political branches — the President and Congress — had agreed to take away the detainees’ habeas rights, Kennedy said those branches do not have “the power to switch the Constitution on or off at will.”

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.

In an update, provided a copy of the press release in which Chief Judge Royce C. Lamberth of the District Court which will rehear the case said

I expect we’ll call in the lawyers for both sides to see what suggestions they have for how we can approach our task most effectively and efficiently.

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Supreme Court, Inc.

Illustration by Andy Friedman (website, email) from March 16, 2008 New York Times Magazine.

Jeffrey Rosen (profile and email), a law professor at George Washington University writes in tomorrow's article, "Supreme Court, Inc," that

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”

Things have changed, however. Rosen talked with Robin Conrad, who heads the Chamber of Commerce'ss litigation effort and said she was especially pleased that several of the most important decisions were written by liberal justices and questioned the use of lawsuits to challenge corporate wrongdoing, strategy routinely denounced by conservatives as “regulation by litigation.”

Justice Ginsburg talked about how "private-securities fraud actions, if not adequately contained, can be employed abusively."Justice Breyer had a wonderful quote about how Congress was trying to "weed out unmeritorious securities lawsuits." Justice Souter talked about how the threat of litigation "will push cost-conscious defendants to settle."

Rosen indicateds that since the appointment of John Roberts,

Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

Rosen maintains that while these cases receive less attention than those concerning issues like affirmative action, abortion or the death penalty

shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars.

He cites the blocked liability suit against Medtronic, the manufacturer of a heart catheter, and a shareholder claim against Enron. Additional, the court is slated to In the coming months, the decide whether to reduce the punitive-damage award which resulted from the Exxon Valdez oil spill in 1989.

*
I'll sign off now to drive to Roanoke to Lilly's for a potluck and international folk dancing.

Reject John Roberts

Here's a draft of my article for the New River Free Press, which I submitted today. ..The graphic above is from People of the American Way.I'll be adding links to this page later after I finish my other articles.

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In July, on “The Tonight Show”, Jay Leno said, "The White House announced today that the public would not be allowed to see the memos produced by John Roberts when he represented the United States government as a lawyer. They say this is because of the attorney-client privilege. Here's the part I don't understand: he represented the United States, we're the client, he's our lawyer. Shouldn't we be allowed see our own notes?"

What’s available of John Roberts’ record as a government lawyer, private attorney and federal appeals judge, makes progressives worry about his stands on equal opportunity, privacy, reproductive choice, and religious liberty, among many issues. But, as Benjamin Wittes noted in the May 2005 issue of The Atlantic, “[T]the threat to basic environmental protections from conservative jurisprudence is broad-based and severe.” He adds, “By tightening doctrinal requirements that limit citizen access to the courts, judges greatly reduce the legal accountability of polluters.”

Of special concern to Free Press readers is how Bush’s nominee for a lifetime appointment to the Supreme Court once offered the National Mining Association (NMA) advice on how to intervene in other people's court cases and two years later was hired by the group to argue against citizens trying to stop coal companies from shearing off West Virginia's mountains.

In 1999, as a partner in the Washington, DC law firm of Hogan & Hartson, Roberts’ lecture before the NMA’s conference offered "several pointers" on how the group might get their views heard by judges.

In the 1999 landmark case of Bragg v. Robertson, the now-deceased U.S. District Judge Charles H. Haden II limited mountaintop removal coal mining, finding that a stream buffer zone rule prohibiting mining within 100 feet of waters, barred coal companies from burying larger streams with strip mine waste.

The NMA was not a direct party in the case; instead, it hired Roberts and two other attorneys at his firm of Hogan & Hartson to file a "friend of the court" brief in the 4th U.S. Circuit Court of Appeals, saying the ruling "jeopardize[d] the continued viability of the coal industry in Appalachia and elsewhere."

The brief also argued that Haden had allowed citizens to "circumvent" an administrative process to appeal permit decisions to the state Surface Mine Board. "Such a result eviscerates the very process Congress established to coordinate the various regulatory programs applicable to coal mining, and creates grave uncertainty for the members of the coal industry who rely upon mining permits as the blueprint for compliance with these programs."

In its April 2001 decision, the 4th Circuit overturned Haden, saying the dispute instead belonged in state court. One of the judges who overturned Haden was J. Michael Luttig, who Bush considered for the open Supreme Court seat and is a close friend of Roberts.

Roberts also undermined environmental projection in 1990, when as deputy solicitor general under George H.W. Bush, he successfully argued before the Supreme Court that environmental groups lacked standing to sue the federal government over a mining project on public land.

While on the D.C. Circuit Court, Roberts was one of two judges to dissent from a 2003 decision that upheld the Endangered Species Act as a permissible exercise of Congress’ authority under the commerce clause. As an appeals court judge in 2004, he rejected a Sierra Club lawsuit seeking to force the Environmental Protection Agency to adopt a tougher standard for the emission of hazardous air pollutants from copper smelters.

On August 26, the Sierra Club issued a statement. “As information about Roberts continues to trickle out, concern about his positions grows.” David Bernard, chair of the New River Group of Sierra Club explained to the Free Press, “Mr. Roberts could have a negative impact on the environment. As you know, the word environment does not appear in the Constitution…He may be willing to further limit Federal authority to regulate environmental matters.” Annie Krochalis of the Roanoke adds “The national Sierra Club is opposed to mountain top removal projects, a position shared by the Roanoke group. The Club is supporting efforts toward full disclosure of Robert's documents.”

On August 14, Carl Pope, the Sierra Club’s executive director had gone on record with Associated Press reporter John Heilprin to complain that Roberts “defers to economic interests over the public health, to executive agencies over the Congress, and to secrecy over the public's right-to-know…He's always tweaking the facts to the benefit of insiders."

That Roberts would benefit insiders is no accident, according to Michael Scherer, Washington correspondent for first Mother Jones and now Salon.com. Writing for Mother Jones in 2003, Scherer noted that, “Now, with a sympathetic ear in the White House, corporate America is taking its legal agenda to the federal bench with a behind-the-scenes campaign of high-powered lobbying and interest-group advertising.
Senator Richard Durbin, an Illinois Democrat and former corporate defense lawyer told Scherer. "What you have is a wholesale effort to hijack the federal judiciary….They clearly want to put in a more conservative judiciary and then start stacking the deck by removing more and more cases to the federal courts."

Scherer discovered that the nominees' “legal approaches have been nurtured by a string of corporate foundations that fund university programs and ideological groups like the Federalist Society.”

This society has sponsored legal symposia and served as a network for rising conservative lawyers since its founding in 1982 by Bork-inspired conservatives who believed law schools had taken a tilt to the left. Membership in or association with the society has become a badge of ideological and political reliability in conservative circles.

When news organizations reported Roberts’ membership this July, the White House claimed that Roberts had no memory of belonging. As a result, The Washington Post, the Los Angeles Times, USA Today and the Associated Press printed corrections. But over the weekend of July 23-4, the Post obtained a copy of the Federalist Society Lawyers' Division Leadership Directory, 1997-1998, listing Roberts as a member of the Washington chapter’s steering committee.

Meanwhile, the conservative Landmark Legal foundation has sued the EPA, the Forest Service, the Bureau of Land Management and the Fish and Wildlife Service to expose “both the amount and misuse of federal grants” by “extreme environmental” groups, including “political advocacy and lobbying.”

Landmark notes on its website that, “The EPA has already produced a list of nearly 14,000 grants totaling more than $2 billion made to nonprofit organizations since 1993. Landmark has used the information produced through this litigation to create the most extensive database on environmental grants awarded by the government on the Internet. This database can be easily accessed by state policy groups, property owners, businesses and others.”

The Committee for Justice leads campaign for Roberts. Since is founding in July 2002, this non-profit has pressured the Senate to approve Bush’s nominees for federal judgeships. In July 1, 2005, the day of Justice Sandra Day O’Connor’s resignation, its press release painted progressives in a highly negative light and threatened moderates who might oppose the nomination.

“[W] we’re familiar with the special interests on the other side and what is demanded by their financial backers the trial lawyers, the pornography industry, the teachers unions that want to block equal educational opportunity for the inner city. We know they will attack almost any non-liberal nominee in hysterical terms.

"We will be watching Senate Democrats and intend to link moderate and red states senators to their liberal Senate colleagues and outside groups. If Sens. Kennedy, Schumer, Durbin, Leahy, and Boxer attack, it will be Ben Nelson (Neb), Mark Pryor and Blanche Lincoln (Ark), Robert Byrd (WVa), Bill Nelson (Fla), Tom Carper (Del), Debbie Stabenow (Mich), Jeff Bingaman (NMex), Evan Bayh (Ind), Byron Dorgan (ND), Mary Landrieu (La), and Tim Johnson (SD) who will be held accountable."

Progress for America (PFA), another conservative group, did not even wait for O’Connor’s resignation. As noted in the * issue of the NRFP, it launched a $700,000 “grassroots” ad campaign on June 22 “to warn the public that in the event of a U.S. Supreme Court vacancy, liberals and some Democrats will unleash a disinformation campaign with distorted attacks against any judicial nominee.”

On August 15, PFA dispatched 15 of Roberts' “friends, colleagues and legal experts” to barnstorm 14 states, including West Virginia, and argue that Ruth Bader Ginsberg’s easy approval by the Senate should serve as a precedent. John Suber, a columnist for the Charleston Daily Mail advocated on August 11 that “President Bush should follow suit and simply give Judge John Roberts a recess appointment to the Supreme Court.”

Despite conservative charges that progressives would rush to judgment, People of the American Way (PFAW) did not issue its report on Roberts until August 24. It has now launched a petition drive urging Senators that “ John Roberts' confirmation to the Supreme Court would jeopardize many of the legal and constitutional protections that Americans enjoy and would undermine the nation's hard-won progress in civil rights and equal opportunity, privacy and reproductive choice, environmental protection, and religious liberty. Moreover, he would strengthen the power of the presidency, already dangerously expanded by President Bush.”

MoveOn.org has also started a petition drive to the Senate, stating, “In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people.”

Editors’ Note: Readers wishing to read PFAW’s report and find its petition can go to Savethecourt.org MoveOn.org’s campaign is here Michael Scherer’s August 11 article on why Roberts’ business ties is here:Links to Roberts’ decisions and briefs can be found at
Salon ,the WaPo