No sooner had the non-profit investigative reporting website ProPublica broken the story that Supreme Court Justice Clarence Thomas had for more than two decades accepted more than half a million dollars in undisclosed luxury travel provided by right-wing billionaire Harlan Crow, than the Wall Street Journal editorial board published The Smearing of Clarence Thomas. The op-ed was a fusillade of abuse against the Pulitzer Prize-winning internet platform. A left-leaning website, the Journals editorial page called ProPublica, saying that its intrepid reporters had roamed far and wide and had fallen victim to adjectival overkill, the method of bad polemicists who dont have much to report.
In its critique, the Journals editorial omitted to mention that 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 winner.
Leaving aside ProPublicas credibility, its published piece was detailed and well-researched. Forget the news that Crow also gave half a million dollars to a Tea Party organization founded by Thomass wife, Ginni, in 2011, which funded her $120,000 salary. The Smearing of Clarence Thomas? Oh, please. The Truth about Clarence Thomas would be more descriptive.
Yes, Supreme Court justices are exempt from the Code of Conduct for United States Judges binding all other federal judges, so Thomas did not violate that code. However, any justice with discretion would avoid violating it so blatantly.
But Thomas does seem to have violated a federal statute. Ever since Watergate, the Ethics in Government Act has required that the justices and other government employees report any gift over $415.
The law does provide an exception from disclosure for gifts of food, lodging or entertainment received as personal hospitality. But personal hospitality only applies to gifts received from an individual at the personal residence of that individual or the individuals family or on property or facilities owned by that individual or the individuals family. It has never exempted from disclosure gifts of private jet travel or cruises on luxury yachts.
The Journal carelessly faults ProPublica for quoting a couple of cherry-picked ethicists to express their dismay. Actually, there were seven legal ethicists consulted for the article, including Republicans who served in the George W. Bush administration.
Thomas became close with Crow in the 1990s after his tumultuous 1991 Senate confirmation hearings. He disclosed at least one private jet flight provided by the billionaire, to the Bohemian Grove retreat in California, in his 1997 financial disclosure. He has not disclosed a Crow-financed trip in more than 25 years since then. There have been many including not only private jets travel, time on Crows superyacht and at commercial hotels in New Zealand, the Greek isles, and Indonesia.
The famously quiet Thomas, who rarely says a word from the bench at oral arguments, issued an even rarer public statement that essentially confirmed the ProPublica report. 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.
Thomas did not name the colleagues who said accepting all this free travel and keeping mum about it was fine. One couldnt have been the late Justice Antonin Scalia, with whom he was ideologically aligned. In 2004, Scalia dismissed arguments that he should have reported a hunting trip with then Vice President Dick Cheney on Air Force Two. Scalia wrote that the Ethics in Government Act required disclosure of all transportation provided or reimbursed except transportation provided by the United States. So, implicit in Scalias defense was an undercutting of Thomass defense. Travel on private jets, thought Scalia, must be disclosed.
Crow, Thomass perennial host and an inveterate mega-donor to right-wing causes, also weighed in. He said that Thomas never asked for hospitality, and it was no different from the hospitality we have extended to our many other dear friends.
Thomas never asked for hospitality aboard Crows jet? We should all be so lucky. According to ProPublica, flight records show that Thomas regularly used Crows plane. In the real world, who did the asking? Did Crow call him and say, Hey Justice, I hear you need to be in New Haven next week at 1 pm. My plane is in Dallas. How about a lift? No other dear friends are using it. Ill have it pick you up at Dulles Airport at 11:30 next Tuesday, and of course, Ill take you back. Or was it the other way around?
Thomas spent nine days touring Indonesia on Crows 162-foot superyacht, the Michaela Rose. Crow, it appears, flies Thomas to his ranch in East Texas with some frequency and flies Thomas for a week-long vacation almost every summer at Topbridge, his lakeside rustic retreat in the Adirondacks once owned by heiress Marjorie Merriweather Post, who owned Mar-a-Lago.
Crow memorialized Thomass visits to Topridge by commissioning a painting showing Thomas attended by hard right lawyers Peter Rutledge, Leonard Leo, and Mark Paoletta. Seated on Thomass left is Harlan Crow.
Crow also flew Thomas to Mahwah, New Jersey, where he attended the cemetery dedication of a statue of a nun, who was Thomass eighth-grade teacher and had testified to his character at his confirmation hearing. Crow paid for the sculpture to boot.
So, what is this all about? What it isnt about is smearing Clarence Thomas. Justices are entitled to have dear friends, and most of our dear friends share our politics. He was also entitled to sup at banquets at the homes of personal friends, but not to free rides on private planes to vacation on said pals yachts.
It doesnt pass the smell test or even the giggle test that Thomas and his wife Ginni spent time each summer with Crow and other deeply conservative figures with litigation interests before the Supreme Court, spent the week smoking cigars and talking baseball, and never ventured near topics that would be taken up by the Court a few weeks later when it convened the first Monday in October.
This could not have been all social or all pleasure. In a documentary about his life, Thomas expressed his leisure-time preference: I dont have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. Theres something normal to me about it. Its a pity he had to endure yachting through Indonesia when he could have been in a parking lot in Indiana.
Periodically, Congress considers tightening the ethics rules for Supreme Court justices. Such efforts go nowhere. Opponents argue that it violates the separation of powers and that it is all a plot to curb the freedom of conservative justices.
There is hope for some reform. The Administrative Office of the U.S. Courts issued guidance last month directing justices to disclose the kind of secret gifts that Thomas and possibly others have been enjoying for decades. Under the new measure, personal hospitality will not include gifts other than food, lodging or entertainment, citing as an example transportation that substitutes for commercial transportation. This will close the private plane loophole if ever there was one. But, of course, without enforcement, reform is meaningless.
As the Second Circuit observed in United States v. Manton, Judicial action, whether just or unjust, right or wrong, is not for sale; and if the correctness of judicial actiontaken for a priceremoves the stain of corruption and exonerates the judge, the event will mark the first step toward the abandonment of that imperative requisite of even-handed justice that the judge must be perfectly and completely independent with nothing to influence or control him but God and his conscience.
Especially when the Supreme Courts legitimacy is suspect and public confidence in its authority is low, justices shouldnt have to be told to avoid all appearances of impropriety. Apparently, Clarence Thomas didnt get the memo.
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