Senate Judiciary Committee Chairman Sen. Dick Durbin is calling on Justice Clarence Thomas to recuse himself from a major case dealing with administrative law and the reach of executive agencies that’s scheduled to be heard this term, which begins in October.
The call comes after ProPublica published another report Friday critical of Justice Thomas, saying he participated in donor events with billionaires Charles and David Koch.
“Once again, Justice Thomas’s gaggle of fawning billionaires expands and their influence on the Court grows larger,” Mr. Durbin, Illinois Democrat, said in a statement. “The Koch brothers are the architects of one of the largest, most successful political operations in history, aimed at influencing all levels of government and the courts. Justice Thomas hid the extent of his involvement with the Koch political network and never reported gifts associated with these engagements.”
He said the Kochs have long sought to curb the power of federal regulators, and the justice’s ties to the network are a problem in the pending case before the court.
“The Koch network has invested tremendous capital to overturn long standing legal precedent known as Chevron deference, which would handcuff regulators and serve the interests of corporate fat cats,” Mr. Durbin said. “As more details are revealed of Justice Thomas’s undisclosed involvement with the Koch political network, there are serious questions about his impartiality in cases squarely confronting the Chevron doctrine. For these reasons, I’m calling on Justice Thomas to recuse himself from consideration of Loper Bright v. Raimondo.”
The Loper Bright case challenges a federal rulemaking that fishermen pay as much as $700 a day to the government to place monitors on their boats to ensure they aren’t overfishing.
Fishing industry advocates say that while the law passed by Congress allows for the monitors, the agency is making up its own rules by insisting the boats pay the charges. The industry group lost in a 2-1 decision before a federal appeals court, where the majority said under a 1984 Supreme Court ruling, Chevron v. NRDC, judges are required to give wide deference to agency decisions.
In taking the fishing case, the justices have been asked to overrule the Chevron case and give judges more leeway to reel in expansive powers claimed by the federal bureaucracy.
Though the case may sound arcane, the stakes are huge, with legal analysts saying it could roll back four decades of case law known as Chevron deference that says courts should generally accede to legal interpretations of the law when made by Executive Branch agencies.
According to ProPublica, the billionaires whom Justice Thomas associated with have challenged the Chevron doctrine for years.
A spokesperson from the Supreme Court did not immediately respond to a request for comment,
ProPublica also has targeted Justice Thomas with accusations about reporting gifts and recusing himself from cases. It reported that Harlan Crow, a GOP mega donor, paid private school tuition at Hidden Lake Academy and Randolph-Macon Academy for Justice Thomas’ great-nephew, whom the justice took in to raise at age 6.
The tuition total could have cost more than $150,000, according to ProPublica. Justice Thomas previously did not disclose the payments in his financial disclosure forms, and the news outlet suggested that runs afoul of ethical standards required of a federal judge.
ProPublica also reported in April that Justice Thomas did not disclose that he took multiple luxury vacations with Mr. Crow or that Mr. Crow bought his mother’s home, even though she continued to reside there.
The New York Times followed with a report critical of Justice Thomas and other Republican appointees collecting generous salaries to teach courses at George Mason University’s Antonin Scalia School of Law.
Justice Thomas has defended his friendship with Mr. Crow and said he consulted with colleagues about disclosure requirements and didn’t skirt any rules.
In an interview published recently by The Atlantic, Mr. Crow denied talking to Justice Thomas about the high court or matters pending before it. He also said the purchase of his mother’s home was a fair-market transaction.
“I don’t see the foot fault,” he said.
ProPublica has also been critical of Justice Samuel A. Alito for past trips he’s made, as it’s spent months issuing stories about the justices’ high profile contacts.
Senate Judiciary Committee Democrats have held hearings over the summer on ethics concerns regarding the justices, saying they would pass legislation to impose new rules on the justices. They invited Chief Justice John G. Roberts Jr. to testify, but he declined.
The high court doesn’t have a mandatory code of ethics, even though lower court judges are expected to avoid impropriety or do business with anyone who may come before the bench.
Chief Justice Roberts has said the high court has generally followed the Judicial Conferences’ Code of Ethics that is binding on lower courts — but not the Supreme Court — since 1991.
He said all justices must file disclosures that are reviewed by the Judicial Conference Committee on Financial Disclosure and follow what lower courts do with recusals. But he noted that the system is flexible, given the composition of the high court.
He also said the justices’ security has faced increased threats. He said they sometimes do not disclose justices’ travel arrangements for security reasons.
Senate Republicans have dismissed the accusations of ethics concerns and said it’s a political attempt by Democrats to delegitimize the conservative-majority Supreme Court.
In a party-line vote in July, Senate Democrats pushed legislation backed through the Judiciary Committee that would require the court to develop a code of ethics and a system to police the justices’ adherence. The justices would be prodded to better explain their decisions on whether to recuse themselves from hearing certain cases.
Given the close division of power in the Senate and the Republicans’ control of the House, Sen. John Kennedy, Louisiana Republican, said the Democrats’ bill is “as dead as fried chicken.”
• Stephen Dinan contributed to this report.
