Thursday, December 7, 2023

Doubting Thomas

Controversy swirls around US Supreme Court Justice Clarence Thomas regarding ethical issues from not reporting decades of substantial gifts from an activist, moneyed Republican donor. His response in this case, exposed by ProPublica, a non-profit journalism organization, resulted in a rare public statement that essentially confirmed the report. It brings into focus the rules of ethics followed by federal judges at all levels.

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By Kenneth Tiven

The investigative report that exposed largesse—extended to Clarence Thomas and his spouse Ginni Thomas, controversial with her own political behaviour—included a nine-day island hopping trip to Indonesia on billionaire Harlan Crow’s super yacht, a trip estimated to cost $5,00,000. Thomas now acknowledges he spends about a week each summer at Camp Topridge, Crow’s private resort in the Adirondack Mountains, north of New York City. Clearly, an opportunity to mingle with Crow and the other invited corporate leaders and conservative activists, and influencers.

Crow befriended Thomas in the 1990s after the tumultuous 1991 Senate confirmation hearings. In his 1997 financial report, Thomas disclosed at least one private jet flight provided by the billionaire. An adverse reaction meant he has not disclosed a financed trip in more than 25 years. There have been many with Crow, including not only the Indonesia trip, but private jets travel and visits to New Zealand and the Greek Isles. Thomas flew to New Jersey a few years ago to unveil a statue honouring a nun who had been his eighth-grade teacher. He thanked Crow and his wife Kathy for underwriting the large statue and, incidentally, flying him there on Crow’s corporate jet.

His response in this case resulted in a rare public statement that essentially confirmed the ProPublica report. “Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”

Befriended by Crow after his appointment, did it not occur to Thomas that this generous friend Harlan who, while very rich, and very conservative, may have an interest in the judiciary, especially the minds of Supreme Court justices as they interpret and make law?
A new real estate omission was reported by The Washington Post. It concerns income from a firm that closed in 2006. Thomas did report on required financial disclosure forms continuously receiving income totalling hundreds of thousands of dollars from Ginger, Ltd., a partnership managing land owned by his wife and her family in the state of Nebraska. Although that business was dissolved 17 years ago, he has continued to list annual income up to $1,00,000 in the name of the defunct business. Considering the amounts involved with Crow, this is, perhaps, just another error in his required annual financial disclosure forms.

Thomas’ behaviour does not surprise those who remember his confirmation hearing for the High Court, 35 years ago. Accused then of sexual mistreatment by Anita Hill, a woman in his government office, he was stoic, with nothing to say beyond a denial. He has always been reluctant to speak publicly. She went on to become a law school professor.

Federal judges at all levels of the US judiciary have a written code of ethics, but the US Supreme Court prefers to claim that it polices its own conduct. Do not expect a hint of a rebuke from Chief Justice John Roberts. The American code of judicial ethics that applies to all federal judges has rules that require reporting of all gifts and travel paid for by others.

Loophole 1 is that until last month, those rules had an exception for private travel and hospitality paid for by a personal friend. The judicial conference of the United States, in a recent “clarification”, stated that judges must report travel paid for by someone else, including personal hospitality at a private estate. Loophole 2 says this applies only IF the property is not owned personally by the friend extending the hospitality. ProPublica’s extensive reporting makes clear that Crow’s various corporations actually own all of the real-estate billionaire’s properties.

Thomas has always been an enigma as a justice. From 2006 until 2016, he asked no question at Court oral arguments in significant cases. His explanation was simple, I have nothing to ask. Born into poverty in the coastal Georgia Gullah communities made up of former slaves, he spoke the Gullah language at home. English for school became a careful and sparse use of spoken language, which continued through to law school. He told The New York Times years ago that he largely stopped speaking publicly at all for fear that any trace of that former life would somehow work its way into his speech. “When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. They used to make fun of us back then. It’s not standard English.” When a second story revealed a special house purchase with Crow, Democrats in Congress grew more vocal. Sen. Sheldon Whitehouse a senior member of the Senate Judiciary Committee and critic of judicial behaviour, said: “It would be best for the Chief Justice to commence a proper investigation, but after a week of silence from the Court and the latest disturbing reporting, I’m urging the Judicial Conference to step in and refer Justice Thomas to the Attorney General for investigation for possibly breaking government ethics laws.”

In this second case, the home in Savanah, Georgia, where Thomas’ mother still lives, was purchased for $133.363. Crow then undertook tens of thousands of dollars of renovation, according to city records. Crow said his interest in the property was “to one day create a public museum at the Thomas home dedicated to telling the story of our nation’s second black Supreme Court Justice” and that he had “approached the Thomas family about my desire to maintain this historic site so future generations could learn about the inspiring life of one of our greatest Americans.” A year earlier, Crow bought two other properties—a vacant lot and a house on the same block for $40,000. Thomas, in financial disclosure forms, listed his one-third interest in “rental property” in Savannah at $15,000 or less. Did Thomas’ mother pay Crow rent as he improved the home and paid taxes on it? ProPublica’s question to Crow went unanswered.

No sooner had the non-profit investigative reporting website broken the Thomas story than the Rupert Murdoch-owned Wall Street Journal editorial board published “The Smearing of Clarence Thomas”. The op-ed called the Pulitzer Prize-winning ProPublica internet platform a “left-leaning website”, whose “intrepid reporters had roamed far and wide” and had fallen victim to “adjectival overkill, the method of bad polemicists who don’t have much to report.” In was a classic case of selective partisan memory. The Journal’s editorial forgot the founding editor-in-chief of ProPublica is Paul Steiger, former managing editor of the Journal; that former WSJ assistant publisher Richard Tofel also founded the site; and that Jesse Eisinger, who co-led the team on the story, is another Journal alum and a Pulitzer Prize winner.

What matters now is how Thomas is viewed. Was this “a quid pro quo” for his votes or just a man being well-treated because his ideological leanings are embraced in conservative thinking? A frequent defence to the bribe claim is that Thomas is too independent a thinker and jurist to be influenced by gifts of Bibles and vacations, and rent-free housing. This reporting lifts the lid on how billions of dollars have influenced cases before the Court, campaigns to seat certain justices, and crusades to keep other nominees off the Court. Thomas’ unlawful refusal to disclose anything personal is consistent with his legal position, ignoring that disclosure rules are the only means of transparency in a world of increasingly broken democratic systems.

In the 2010 case of Citizens United vs Federal Election Commission, the justices allowed virtually unlimited corporate donations to political campaigns, reinterpreting personhood and free speech under the First Amendment to the US Constitution. It was an 8-1 decision that super-charged campaign financing. The Court said that mandatory disclosure rules would suffice to ferret out corruption. In a solo dissent, Thomas railed against disclosure laws in Citizens United, citing the impact of California’s Proposition 8 as his chief example of why disclosure is terrible. That California law had compelled the disclosure of all donors who gave more than $100 to the campaigns for and against Prop 8, a proposed same-sex marriage ban.

Many residents used this information to boycott businesses, lobby fellow citizens, and stop associating with anti-gay Californians—all forms of expression protected by the First Amendment. Indeed, far from silencing speech, these disclosures promoted it. Yet Thomas argued against these First Amendment activities as an assault on the First Amendment. For support, he cited a small number of legitimate “threats of physical violence,” lumping them in with “reprisals,” “ruined careers,” and (perfectly lawful) “warning letters” about the social and political costs of contributing to the campaign.

In 2010’s Doe vs Reed, he elevated his theory of “disclosure as bullying” by writing those citizens who participate directly in the lawmaking process by signing a petition for a ballot initiative or referendum have a First Amendment right to conceal their identity from the public. This involved a ballot question seeking to disallow marriage equality where a group that had helped get the question on the ballot wanted to hide their involvement from their fellow citizens. This level of arrogance is the product of a system wherein a lifetime appointment is assumed to last a lifetime, regardless.

Article Three of the Constitution created judicial appointments with no term limits, recognizing in the 18th century that age 50 was a respectable life span. Centuries of encrusted privilege have elevated the Supreme Court to where today it is considered the pinnacle of a career in law. For 200 years, it had been considered a nice line on your resume. Judges were appointed, served, then returned to practicing private law profiting from their exposure on the national stage.

Thomas was once again the sole justice to vote against disclosure. He complained that the requirement chilled signatories’ free speech by subjecting them to “threats, harassment, or reprisals”. In 2021, Thomas reiterated his belief that the Constitution protects a near-absolute “right to associate anonymously”. In practice, that meant an ability to donate massive sums to deeply political organizations and conceal your identity from the state. These opinions equate genuine illegal conduct (like true threats and harassment) with constitutionally protected public criticism.

His thin-skinned vision of free speech caused his friend Justice Antonin Scalia to rebuke his colleague’s desire to shield the egos of unhappy partisans. Wrote Scalia: “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels

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