Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Iowa Independent notes a controversy over Justice Clarence Thomas and his ties to Monsanto, which is party to a case the Supreme Court heard on Tuesday.
Oral arguments will be heard by the U.S. Supreme Court Tuesday in a case involving a federal judge's temporary ban on a breed of pesticide-resistant alfalfa developed by Monsanto Co. One of the court's justices, Stephen Breyer, has recused himself due to conflict of interest, and some environmental advocates are questioning if Justice Clarence Thomas, a former attorney for Monsanto, should also step aside.
More details:
When the U.S. Supreme Court decided to hear the case, Justice Stephen Breyer recused himself due to the fact that his brother, Charles Breyer, was the judge who ruled in the originating decision. Advocates for maintaining, if not strengthening, environmental protection laws are quick to point to one other member of the court who should also consider stepping aside on the case: Justice Clarence Thomas.Thomas, who was nominated by President George H.W. Bush and confirmed in 1991, has taken a share of criticism from such advocacy groups throughout his tenure on the court. Not only did Thomas work as an attorney for the Monsanto Co. in the late 1970s, he also penned the majority decision in a 2001 case that paved the way for companies like Monsanto to patent seeds. That same year he received the Francis Boyer Award established by chemical and pharmaceutical giant SmithKline Beecham, now known as GlaxoSmithKline.
The fact that he wrote a previous ruling that helped Monsanto is irrelevant; if a justice could not hear a case if he had previously ruled on any related case, there would be a lot of 2-1 decisions on the court. But the fact that he was once a lawyer for Monsanto could be grounds for recusal. I'd like to hear what judicial ethicists have to say about it.
It is up to each justice, by rule, to decide whether to recuse themselves in any case. This is not always the case at the state level. Michigan just adopted a new set of recusal rules in the wake of the Caperton ruling, but it is not clear that those rules would require recusal in a case like this. The fact that he was an attorney for the company more than 30 years ago probably mitigates the situation a bit.
Some state recusal rules say that a justice should recuse himself if someone could reasonably conclude that he would not be impartial in adjudicating the case. Some allow other justices to vote on whether a colleague must recuse themselves if challenged.
I think in this case I would say that his association with Monsanto was so long ago that it would not reasonably affect his impartiality. I also think it was unnecessary for Breyer to recuse himself. His brother is a federal judge; that does not mean he should not hear cases his brother previously ruled on.
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"His brother is a federal judge; that does not mean he should not hear cases his brother previously ruled on."
Isn't evaluating the performance of the trial judge part of the work of an appellate judge? One would expect a bias against overturning the lower court's decision.
Posted by: RickD | April 28, 2010 12:17 PM
If everyone in our government who had ties to Monsanto backed out when dealing with Monsanto-related business, we'd have no Dept. of Agriculture or FDA left. A short-handed Supreme Court would be the least of our worries.
Posted by: mingfrommongo | April 28, 2010 12:26 PM
Recusal of a judge based solely upon his prior representation as a lawyer of one of the litigants should turn on whether the case before the court is substantially related to the work the judge previously did for that litigant. A starting point might be to ask whether the judge's prior representation would disqualify a lawyer from representing an adverse interest in the current litigation.
Of course, a judge could have developed such a close, personal relationship with a former client or client representative that recusal should be required when that client later appears before that judge, whether or not the case is related to the judge's earlier work for the client. When a judge has a close tie to a litigant, recusal should be required without regard to how the close relationship came to be.
Of course, if previous rulings favorable to a litigant's general field of business were a disqualification, no judge with any significant experience could participate in a case. Criminal defendants could probably disqualify every judge on every federal bench {8^)
Absent evidence that Justice Thomas has current business or personal ties with Monsanto or Monsanto's management, I'd think his work for the company more than 30 years ago shouldn't bar his participation in the case.
Posted by: knutsondc | April 28, 2010 12:26 PM
I agree with Ed, and even more so with knutsondc's more thorough argument. I'd hate to draw a bright line on how long ago is ok or not (well, if it was 16 years ago, I'd have to recuse myself, but it's only 15, and that's completely different), but 30 years is a very long time, unless there's some real evidence of close ties being maintained (financially or personally).
I'm curious as to why the author even brought up the prior ruling. S/he doesn't explicitly state, at least in Ed's snippet, that it could be grounds for recusal, but by bringing it up at all s/he leaves that imprssion, which is beyond ridiculous. Although to be sure, I have seen a defense attorney make that claim before, that a new judge should be assigned to his defendant's case because that judge had previously overseen a trial in which the defendant was convicted. Of course it didn't work in that case, either.
Posted by: James Hanley | April 28, 2010 12:45 PM
I would probably recuse myself in that case - but that may come as a result of being in a profession where avoiding the appearance of a potential conflict is nearly as important as avoiding the conflict itself. I personally refuse to review the records of a company I did NON-accounting work for, even if it was decades ago, let alone any company I did accounting work for.
Not everyone shares my views, although in my workplace they're considered fairly mainstream.
Posted by: CanadianChick | April 28, 2010 1:40 PM
Keep in mind also that Monsanto did not do the same type of work 30 years ago. They were a chemical production company primarily, and they happened upon their current line of GMO crops essentially on accident. The kind of genetic work this case deals with was impossible in the 70s.
Posted by: JBC | April 28, 2010 2:05 PM
I agree with knutsondc. And just to amplify on his comment that "Criminal defendants could probably disqualify every judge on every federal bench," it's not just that many of the judges have experience in the field: many of them used to work for the very government offices (U.S. Attorney, etc.) that now appear before them.
Similarly, I don't think that Justice Ginsburg should have to recuse herself from any case in which the ACLU is a litigant just because she represented them 30-odd years ago. I don't think it's any different because Monsanto was a presumably well-paying client; it seems unlikely that Justice Thomas is planning to resume private practice and be reconnecting with his old clients, and the idea that lawyers retain vast amounts of affection for corporate clients from 30 years ago is pretty funny to me.
Posted by: Screechy Monkey | April 28, 2010 2:47 PM
Let's not forget that Tony "Ducks" Scalia was asked to recuse himself from the case involving his hunting buddy, DICK Cheney. I think his reply was something like, "Fuck you, PULL!".
Author's note: Justice Scalleah (rhymes with syphilis) would never yell, "Mark", 'cuz he wouldn't shoot down nothin' comin' from the right.
Posted by: democommie | April 28, 2010 5:23 PM
I have heard any number of times a judge or politician remark, "I don't have a conflict of interest. It is just an appearance of a conflict of interest." But isn't what we really want for even "an appearance of conflict of interest" to not be present. If we want the system to promote confidence in the public, should not an appearance be sufficient reason to recuse oneself?
Posted by: Mobius | April 28, 2010 5:37 PM
"If we want the system to promote confidence in the public, should not an appearance be sufficient reason to recuse oneself?"
As long as you qualify that with something like "a reasonable appearance," sure.
One of the problems with conflicts of interest is that they lead to bias, and almost by definition we're not good at detecting our own biases. So it's certainly not an answer to every alleged conflict for the official to declare -- no matter how honestly he or she believes it -- that "I am in no way biased or conflicted."
But it also can't be the case that everything that some people can interpret as a conflict or bias is grounds for recusal. (Not that you were suggesting this; I just mean there has to be some limit to the "appearance" criterion.)
In this example, I just don't think it's reasonable to assert that Justice Thomas is conflicted because he represented a company 30 years ago.
Posted by: Screechy Monkey | April 28, 2010 6:05 PM
Personally, I'd suggest erring on the side of caution when it comes to recusing oneself. It would be better for there to be no possible error when it comes to a SCOTUS decision.
Posted by: James Davis | April 28, 2010 8:07 PM
Justice must not only be done, it must be seen to be done,
Posted by: mrcreosote | April 28, 2010 9:05 PM
Monsanto has been strong arming farms that neighbor farmers who use their product. They claim that the neighboring farmers are benefiting from Cross Pollination. WTF!? They file suit to claim these crops and what do those Farmers Get? One would think that the Farmers would sue Monsanto for the GM crops getting loose and cross pollinating.
Monsanto is playing some dirty pool and the fact that Thomas is in on it, is just sickening. Thank you Ed for posting this. I had no idea.
See News Reference Here: http://www.cbsnews.com/stories/2008/04/26/eveningnews/main4048288.shtml "The Runyons say they signed no agreements, and if they were contaminated with the genetically modified seed, it blew over from a neighboring farm. "Pollination occurs, wind drift occurs. There's just no way to keep their products from landing in our fields," David said."What Monsanto is doing across the country is often, and according to farmers, trespassing even, on their land, examining their crops and trying to find some of their patented crops," said Andrew Kimbrell, with the Center For Food Safety. "And if they do, they sue those farmers for their entire crop."
I realize you are pursuing this story as an issue regarding ethics in the courts...
Posted by: Seeing Eye chick | April 29, 2010 12:41 AM
Sorry what I mean to express was my surprise at his association. I don't know why it does, after the Bush Administrations Oil Exec overflow in the Cabinet. While I appreciate Monsanto's right to make money, I find their methods in the GM cases to be unlawful. I never could understand how anyone could patent a living thing like a plant that pollinates, and expect to control every cultivar that might occur due to cross pollination? Sometimes to small people like me, this seems overwhelming, unfair, evil, and short sighted, and to see a Supreme Court Justice in up to his neck in any capacity--with a business like that is frightening. To me Monsanto is no better than KBR.
Posted by: seeing eye chick | April 29, 2010 12:46 AM
seeing eye chick:
Monsanto's honesty and integrity went out the window a long time ago, along with Dow Chemical's and Union Carbide's.
Since we know by having watched the confirmation hearings that Thomas can tell whoppers with a straight face, they could not have a better friend on the bench.
Clarence Thomas is to Thurgood Marshall as "Huggy Bear" from "Starsky and Hutch" was to "Shaft".
Posted by: democommie | April 29, 2010 8:12 AM