For the sake of full disclosure, I will tell you that I do not like Supreme Court Justice Clarence Thomas. In my opinion, he has no business sitting on the high court after the reprehensible treatment he forced Anita Hill to endure, and has been a disgrace to the bench lo these last twenty years. Anthony Weiner, one of Clarence Thomas' most ardent critics, was just run out of Washington DC on a rail for behavior far less offensive; Mr. Thomas is lucky there was no such thing as Twitter when he was sexually harassing Hill, or he'd be chasing ambulances outside of muni court like the hack he is. He sits up there like a lump, never speaking or offering questions to petitioners, and has not had an original thought since his shameful Senate approval.
But his vapid intellectual presence on the bench is only a small part of the story. Mr. Thomas has, by all appearances, turned his position on the court into a license to print money for himself, his family, and a few choice friends.
Conservative corruption is nothing new in Washington, but Mr. Thomas has taken the practice to bold new heights, and finally, people are beginning to sit up and take notice. Thomas has been playing fast and loose with judicial ethics for a long time now, and though Supreme Court Justices are not technically beholden to judicial rules of ethics, his behavior has become so egregious as to warrant deep attention, and in my opinion, removal from the high court.
Justice Thomas is in possession of a gorgeous bust of Abraham Lincoln, which was cast in 1914 by the noted sculptor Adolph Alexander Weinman. The bust was given as a gift to Thomas in 2001 by Christopher DeMuth, president of the notoriously right-wing American Enterprise Institute. The value of the bust was $15,000. In the intervening years, AEI has filed briefs on three separate occasions regarding cases before the high court, and on each occasion, Thomas has ruled in their favor, often going beyond the scope they were seeking.
Thomas has attended fundraisers sponsored by the Koch Brothers in support of far-right media outlets, think tanks and groups. His habit of openly supporting right-wing causes has earned him an enormous amount of financial largesse from heavy-hitting right-wing donors, most notoriously Mr. Harlan Crow, who helped finance the “swift-boating” of John Kerry in the 2004 presidential election. Crow financed a library project dedicated to Thomas, and gave Thomas' wife $500,000 to create a Tea Party group that has since been throwing its weight all around the country. Crow, it should be noted, is a trustee of AEI, which gave Thomas that bust of Lincoln.
The list of his brazen improprieties runs long, but the real show centers around his wife, Ginni. Harlan Crow's massive donation allowed her to create Liberty Central (and later Liberty Consulting), an advocacy group dedicated to the overthrow of President Obama's health care reform legislation. The conflict of interest inherent in this – given that Mr. Obama's health care legislation will certainly appear in some form before the Supreme Court – is manifest. The high court's decision in Citizens United, which Thomas voted in favor of, has opened the financial floodgates for groups like Liberty Central, so Thomas' family appears to be reaping wonderful monetary gains from that decision. And there is the fact that Thomas failed to disclose nearly a million dollars of income earned by his wife, and brushed off that failure to disclose with an “Oops, didn't understand the paperwork” excuse.
As has been stated, Supreme Court Justices are exempt from following the judicial code of conduct, but Mr. Thomas' behavior has been so egregious as to create a groundswell towards changing that. Nan Aron of the Alliance for Justice recently penned an editorial for the Washington Post which argued:
The behavior of Supreme Court justices has come under increasing scrutiny. Questions have been raised, for instance, about the propriety of Justices Antonin Scalia and Clarence Thomas appearing at political strategy conferences hosted by the conservative Koch brothers. Other justices' activities have also prompted concerns that the line between justice and politics is increasingly blurred.
Regardless of whether one shares fears of politicization, disputes are inevitable so long as the nation's highest court operates with almost no compulsory ethics rules to guide – or constrain – behavior. The Supreme Court, whose members are shielded with lifetime appointments, is the only entity in our government that is not subject to mandatory ethics requirements. That is why reformers are calling for the Code of Conduct that governs all other federal judges to apply to the justices. Surely it makes no sense to have lesser standards for the highest court than those in place for lower courts.
The Code of Conduct doesn't frown on ideological activity but does prohibit political activity, and that's where Scalia and Thomas crossed the line. The fact that they did so with seeming impunity demonstrates that voluntary adherence to ethical standards doesn't always work. How to enforce such a code would be the hardest question, but there are options – possibilities include adjudication by other sitting justices, retired justices, lower court judges, the judicial conference or some combination of these. Exact methods could be explored in congressional hearings.
The bottom line is that if the judicial Code of Conduct becomes mandatory the number of events that would be placed off-limits is small. Meanwhile, the effect on the integrity of the court would be large. Some suspect this is an effort by progressives to tweak justices they don't like. But the Supreme Court itself effectively answered that charge in 2009. In Caperton v. A.T. Massey Coal Co., a case that dealt with a West Virginia Supreme Court justice who ruled in favor of a corporation that had made large contributions to his campaign, the high court said that “codes of conduct serve to maintain the integrity of the judiciary and the rule of law.”
The lifetime appointment for a Supreme Court Justice is not set in stone, as Justice Abe Fortas found out to his woe forty years ago. Fortas, who was appointed to the bench by President Lyndon Johnson in 1968, was found to have taken large sums of money from litigants who appeared before the high court, including Phillip Morris. After a second pay-for-play arrangement benefiting Fortas was discovered, he was forced to resign in disgrace. As Ian Millhiser of ThinkProgress argues:
It is difficult to distinguish Fortas' scandal from Thomas'. Like Fortas, Thomas accepted several very valuable gifts from parties who are frequently interested in the outcome of federal court cases. One of Thomas' benefactors has even filed briefs in his Court since giving Thomas a $15,000 gift, and Thomas has not recused himself from each of these cases.
Of course, Thomas is also the least likely Justice to actually follow the command of precedent. Thomas embraces a discredited theory of the Constitution which would return America to a time when federal child labor laws were considered unconstitutional. His fellow justices criticize him for showing “utter disregard for our precedent and Congress' intent.” Even ultra-conservative Justice Antonin Scalia finds Thomas' approach to the law too extreme – in Scalia's words, “I am a textualist. I am an originalist. I am not a nut.”
But Thomas' disregard for what has come before him changes nothing about the precedent he faces. If Abe Fortas had to resign his seat, so too should Clarence Thomas.
Given the simple, unavoidable fact that Mr. Thomas is bereft of both shame and a code of personal ethics, it is highly unlikely he will resign, especially if his wife is raking in the cash thanks to his decisions. In that event, the final remedy of impeachment must be deployed. The Supreme Court must not be a place for partisan political fundraising or friendly-donor back-slapping. It is the place of last recourse in our system of laws, and must be as far above reproof as can be humanly managed. Clarence Thomas is an embarrassment to the ideals of our system of government, and must go. He can choose to leave, or be removed by Constitutional remedy, but his time on the bench must be concluded.
He and Ginni will just have to go find honest work like everyone else.