Bench Memos

Common Cause’s Baseless Accusations

On Wednesday, Common Cause proved once again that the Left will stop at nothing to intimidate judges and scare political opponents. The organization, upset at the outcome in Citizens United and seeking to take advantage of the case’s one-year anniversary, sent Attorney General Eric Holder a legally amateurish and factually inaccurate letter asking DOJ to investigate whether Justices Scalia and Thomas should have disqualified themselves in the case. According to the letter, the Justices “have participated in political strategy sessions [in Palm Springs], perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision.”

There are a few problems with Common Cause’s invitation, not the least of which is that it is in conflict with the facts:

1. Their timeline, which is critical to their claim, is off. According to this story by Politico’s Ben Smith, “Scalia spoke to the Palm Springs conference in January of 2007. Citizens United was only filed on December 17 of that year. Thomas spoke to the conference in January 2008, after the case had been filed in federal district court, but months before the Supreme Court took the case in August.” In other words, Common Cause thinks the justices were there to discuss a case that did not exist and that would not reach the Supreme Court for many months.

2. Their speeches had nothing to do with Citizens United or the subjects at issue in that case. According to the same story, “Scalia’s 2007 speech was on the subject of foreign law and Thomas had talked about his memoir.”

3. The “corporate leaders” Common Cause wants Holder to intimidate and harass didn’t even pay for the justices to travel to Palm Springs.

4. As Ed Whelan has noted, even the very liberal law professor Kathleen Sullivan, author of a First Amendment textbook, believes that “Citizens United has been unjustly maligned.”

5. Even professors who agree with Common Cause on the merits of Citizens United believe its letter to DOJ is “an unwarranted attack on the ethics of the Justices.” According to Ben Smith, “Election law scholar Rick Hasen, who’s sympathetic on the merits of Citizens United, told my colleague Jeanne Cummings that the group’s ‘approach seems both unlikely to yield the desired result of seeing the case overturned and appears to be an unwarranted attack on the ethics of the Justices.’”

6. Common Cause conveniently failed to mention Justice Sandra Day O’Connor’s infamous and ethically problematic 1:00 a.m. robo-calls and video advertisements in support of a Nevada campaign to abolish judicial elections. Since Common Cause ignored it, I recommend that you read more about that real ethical lapse here, here, here, and here.

I hope the press and the public see this letter for what it is: An invitation by the far Left for the Obama administration to use the power of the national government to harass its political enemies and intimidate the judges they predict will apply the text and original meaning of the Constitution to invalidate their radical, unconstitutional agenda on Obamacare, Dodd-Frank, gay marriage, etc.


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