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Clarence Thomas Takes One for the Court
Did Clarence Thomas do anything wrong in accepting gifts from a wealthy Republican, or is Thomas the victim of years of pent-up anger at the Supreme Court by Democrats? Yes.
According to an investigation by ProPublica, for more than 20 years Justice Thomas received lavish and expensive gifts, including trips on a private yacht and a private jet, from Harlan Crow, a Texas billionaire and real estate developer with a long record of support for Republican politicians. Under the ethic regulations which guide Supreme Court justices, it is not clear that Thomas had to report any of this (Thomas says the guidance he received affirmed he did not need to report any of the gifts as his angel, Crow, had no business before the Court and the trips were “personal hospitality,” a gift from a friend.)
ProPublica asserts that the Ethics in Government Act of 1978 required Thomas to report these gifts. This is most probably untrue. People do not report generally “personal hospitality,” such as Thomas’s vacations. It wasn’t until a few weeks ago that the Judicial Conference issued new guidelines saying free trips and air travel must now be reported. This was announced as a change in policy, meaning disclosure was not required in the past but would be in the future. It is as simple as that: The rules did not require reporting of trips in the past, but going forward they do.
So it appears while Thomas did not break the letter of these regulations, he certainly skirted the edge of what we’ll call propriety, the appearance of being on Harlan Crow’s extended payroll. For a guy who has lived so long in Democratic crosshairs it seemed an unwise thing for Thomas to do, even if legal. One theme of government ethics classes is you don’t have to demonstrate actual impropriety, you must avoid even the possible appearance of impropriety. Accepting lavish travel perks? Operating you own email server? Just not what regular Feds do, whether legal or not.
Thomas’ long war with the Left started with his confirmation hearings in 1991 after his nomination by President George H.W. Bush. Anita Hill, who worked for Thomas at the Department of Education and the Equal Employment Opportunity Commission, testified before the Senate Judiciary Committee Thomas sexually harassed her during that time. Her testimony ignited a national conversation about sexual harassment in the workplace and the treatment of women in the legal profession. It introduced many Americans to the vocabulary of pornography long before Bill Clinton soiled the waters (small world: Senator Joe Biden was the Chair of the Senate Judiciary Committee, which oversaw the confirmation process. Biden has faced criticism for his sexist handling of Hill’s testimony and for not allowing three other female witnesses to testify during the hearings.)
As a jurist criticism of Thomas has focused on three points. Many liberals disagree with Justice Thomas’s conservative judicial philosophy, which emphasizes originalism and strict interpretation of the Constitution. They argue that this approach leads to narrow interpretations of individual rights and protections, particularly for marginalized groups. Similarly, liberals criticize Justice Thomas for his opposition to affirmative action and other civil rights policies. They argue that his views on these issues are harmful to communities of color. Lastly, Thomas is known for being one of the least vocal members of the Supreme Court, rarely asking questions during oral arguments or engaging in public discourse about his opinions. Some liberals argue that this lack of engagement is problematic and makes it difficult to understand his reasoning on key issues. There are accusations he often has made up his mind along ideological lines before even hearing a case.
Thomas has more recently become a lightening rod for everything Democrats have come to hate about the Supreme Court, as the Court shifted rightward and decisions like Roe v. Wade went against standard liberal thinking. They see Thomas’ “corruption” as emblematic of the Court’s outsize power due to lifetime appointments, isolation from traditional Constitutional checks and balances, and virtual immunity from public pressure, making it a magnet for corruption and influence-peddling. They see Harlan Crow as having purchased direct access to one of the most influential and powerful men in America and argue that while Crow may not have a specific issue in front of the Court, he holds a generic interest in right wing causes and thus has bought himself a sympathetic judge for his broader Conservative agenda.
Things only got worse when it was discovered that Thomas’ spouse Ginni donated to Republican causes and sent texts cheering on the protests of January 6. A woman with political thoughts of her own! Nonetheless, Thomas is a man with a target on his back.
The only real check and balance on Supreme Court justices is formal impeachment and removal from the bench, so it not surprising at the first sign of impropriety Democrats like AOC have immediately called for Thomas to be impeached. It won’t happen; the standards for impeachment are high, whether what Thomas did actually qualifies is far from clear, and a partisan Congress will never go along. Only one Supreme Court justice has ever been impeached, Samuel Chase, in 1804 for alleged political bias in his judicial conduct. The Senate held a trial, but ultimately acquitted Chase of all charges. No other Supreme Court justice has been impeached since then. Justice Abe Fortas did resign over 50 years ago over money issues, ahead of a likely try at impeachment.
Some have already gone further than the expected calls for hearings and investigations. The New Republic writes “The Democrats need to destroy Clarence Thomas’s reputation. They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.” The magazine went on to call him the “single worst Supreme Court justice of all time. Clarence Thomas is an embarrassment to the Supreme Court and the country, and the worship of this man on the right is one of the greatest symbols of their contempt for standards, the law, precedent, and democracy.”
The hyperbole gives it away — all of this is another tempest to fill in the dead space between Orange Man Bad stories. Thomas should not be proud of his actions, but nor should he face impeachment, never mind some sort of public drawing and quartering of his reputation, over what he did. Clarence Thomas is taking one for the Court.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Ginnie Thomas and the January 6 Committee
In one of the most desperate moves since January 6, 2021, the Select Committee to Investigate the January 6th Attack on the United States Capitol is considering subpoenaing Ginni Thomas, wife of Clarence Thomas, to review a handful of texts she sent which the Committee feels may amount to treason. The connection is weak, along the lines of evidence that Trump was the one who actually slapped Chris Rock, but the need to come up with a new crisis to revive attention to the events of January 6 post-Ukraine is real.
The genesis of this “crisis” begins in the Hail Mary plans to use the January 6 Committee to rescue Democrats from near-certain electoral defeat. Though Ginni Thomas’ conservative roots go back to the Heritage Foundation and the Tea Party, it was left to Democratic journo-operative Bob Woodward late last month to highlight a series of texts Ginni sent on January 6 to Trump Chief of Staff Mark Meadows. The texts had been voluntarily turned over to the January 6 Committee by Meadows (who has since ceased cooperating.) Someone on the Committee leaked the texts and a not so spontaneous chorus of Dems, lead in part by straining-for-relevance AOC, erupted calling for Clarence to recuse himself from all cases dealing with the 2020 and 2024 elections, or resign, or face impeachment.
The texts are online. Read them if you like, but they come no closer to treason than this article, even though one progressive magazine calls Ginni a threat to the Court itself. Ginni has long been the target of conspiracy theorists, who falsely accused her of busing in protesters on January 6 to bolster the Capitol assault force.
In case you are unfamiliar with the events of January 6, a bunch of disgruntled Trump supporters turned a legal rally into illegal entry. MSM and Dems reimagined the entire day into some sort of attempted coup. Absolutely nothing could have happened on January 6 that would have resulted in some new form of government on January 7 and that is what a coup is and why what happened was not one and never will be no matter how many times the January 6 Committee tries to claim it was.
So how did all this end up in Clarence Thomas’ lap? Dems claim almost two years after Ginni sent those texts and after Thomas has sat on the bench for 30 years and after the pair has also been married for three decades, that this month Mrs. Thomas’ politics may influence her husband’s decisions. The solution is for Mr. Thomas to resign, or recuse, or be impeached while his wife is dragged before the Committee as an example of the vast conspiracy behind what did not happen on January 6.
Thomas and Ginni are far from unique; often modern women have jobs outside the home. And we’ll leave aside the many Washington journalists married to policy makers (Alan Greenspan and Andrea Mitchell) people on different sides of the aisle cohabitating (James Carville and Mary Matalin) and others (Mitch McConnell and Elaine Chao.) There are also those other political wives with agendas of their own, including Michelle Obama, Elizabeth Dole, and Hillary. If you work inside the DC bubble you are going to meet others who also do, and navigating the idea that politics makes strange bedfellows is part of life in the capital.
Nonetheless, looking to stock the witness list for the January 6 Committee, this seems to be all the Dems have to work with, so 1950 it is! Of course it makes no sense, this idea that a wife cannot be in the same general business as her hubby, especially to a Democratic constituency built around the idea of empowering women, pink hats, and all that. But the flexibility of Democratic supporters on such matters is exemplary — look at how a group who otherwise stands for LGBT rights can’t seem to get its fill of Trump-Putin homophobia.
Nonetheless, in the interest of showing as completely as possible how shallow the Dems are on Ginni-gate, let’s look at the law and precedent. Supreme Court justices enjoy uniquely protected status, and are not subject to disqualification from decisions over their own activities that bear directly on cases, never mind those of their spouse. Justice Kagan, for example, voted in favor of Obamacare despite having helped create the legal strategy to defend it as solicitor general. Justice Breyer ruled on constitutionality of sentencing guidelines he helped write as a Congressional staffer. Justices Louis Brandeis, Thurgood Marshall, Abe Fortas, and Hugo Black had politically active wives. Ruth Bader Ginsburg did not recuse herself from cases involving her husband’s law firm.
Outside of the Supreme Court, DC Circuit Judge Nina Pillard is married to the ACLU’s litigation director. Ninth Circuit Judge Stephen Reinhardt’s wife leads an ACLU chapter. Even those instances did not violate 28 USC Section 455, the law which covers judicial recusals. You get the picture — there is no marriage penalty. Yet a prominent New York University law professor still writes with a straight face “Ginni Thomas alone among the husbands and wives of the justices has shown utter disregard for the harm she inflicts on the court and the administration of justice in the service of her political goals.”
I know how Clarence Thomas must feel. I joined the State Department not long after it had phased out including diplomats’ wives on performance evaluations. The generations before me spoke in a funny/not funny way about how their bosses kept track of how many teas their wives attended, who did the “right” kinds of charity work, and who was too “ethnic” to fit in. Either your wife tried played nicely or she sat on the sidelines and your own evaluation mentioned she was a none participant. That was generally thought of as better than a bad evaluation of her finger sandwiches.
That all seems so long ago. To watch the Democrats try and drag Ginni Thomas back into the 1950s for their own partisan purposes is as funny as it is sad. One wonders what scoop Bob Woodward might uncover next — are Ginni Thomas’ cucumber sandwiches really served with the crust still on?!?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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