The growing Clarence Thomas ethics problem **UPDATED: Common Cause, Politico, ThinkProgress weigh in

Supreme Court Justice Clarence Thomas

U.S. Supreme Court Justice Clarence Thomas has an “appearance of conflict of interest” problem. Actually, more than one.

Thomas never been held to account, by the Justice Department, the Congress or the media, for 20 years of false financial disclosure forms related to his wife’s six-figure income from the Heritage Foundation, her founding of — and receipt of a six-figure salary from — a tea party organization dedicated to undoing healthcare reform — an issue Thomas will almost certainly be called upon to rule on — and his relationship with Citizens United, which ran ads attacking Senators who opposed Thomas’ nomination to the court, decades before Thomas ruled with the majority in favor of Citizens United in a now-infamous campaign finance ruling. Now there’s new information that calls Thomas’ ethics into question.

From the New York Times:

PIN POINT, Ga. — Clarence Thomas was here promoting his memoir a few years ago when he bumped into Algernon Varn, whose grandfather once ran a seafood cannery that employed Justice Thomas’s mother as a crab picker.

Mr. Varn lived at the old cannery site, a collection of crumbling buildings on a salt marsh just down the road from a sign heralding this remote coastal community outside Savannah as Justice Thomas’s birthplace. The justice asked about plans for the property, and Mr. Varn said he hoped it could be preserved.

“And Clarence said, ‘Well, I’ve got a friend I’m going to put you in touch with,’ ” Mr. Varn recalled, adding that he was later told by others not to identify the friend.

The publicity-shy friend turned out to be Harlan Crow, a Dallas real estate magnate and a major contributor to conservative causes. Mr. Crow stepped in to finance the multimillion-dollar purchase and restoration of the cannery, featuring a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s.

The project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.

In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them.

While the nonprofit Pin Point museum is not intended to honor Justice Thomas, people involved in the project said his role in the community’s history would inevitably be part of it, and he participated in a documentary film that is to accompany the exhibits.

Deborah L. Rhode, a Stanford University law professor who has called for stricter ethics rules for Supreme Court justices, said Justice Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are or whether he’s being centrally honored by the museum.” …

Who is Harlan Crow? The Times continues…

Mr. Crow, 61, manages the real estate and investment businesses founded by his late father, Trammell Crow, once the largest landlord in the United States. The Crow family portfolio is worth hundreds of millions of dollars and includes investments in hotels, medical facilities, public equities and hedge funds.

A friend of the Bush family, Mr. Crow is a trustee of the George Bush Presidential Library Foundation and has donated close to $5 million to Republican campaigns and conservative groups. Among his contributions were $100,000 to Swift Boat Veterans for Truth, the group formed to attack the Vietnam War record of Senator John Kerry, the 2004 Democratic presidential candidate, and $500,000 to an organization that ran advertisements urging the confirmation of President George W. Bush’s nominees to the Supreme Court.

Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’s arguments. The project director, an institute fellow named Edward Blum, said the institute supported his research but did not finance the brief filings or the Texas suit, which was litigated pro bono by a former clerk of Justice Thomas’s.

“When it came time to file a lawsuit,” he said, “A.E.I. had no role in doing that.”

And Thomas has lived the good life, living it up at Crow’s private estates and being wined and dined by him. And the Times raises serious questions about whether Thomas has failed to disclose travel paid for by Crow.
Read the whole Times article here.

Disclosure is a particular problem for Thomas, who sat for a case involving the company Monsanto, without disclosing that he was once a lawyer for Monsanto, and who as the reform group Protect Our Elections pointed out in a press release early this month:

First, the organization alleges, Justice Thomas falsified 20 years of judicial financial disclosure forms by denying that his wife had income sources; second, he engaged in judicial corruption by receiving $100,000 in support from Citizens United during his nomination and then ruling in favor of Citizens United in 2010 without disclosing that fact or disqualifying himself; and third, he apparently conspired with his wife in a form of “judicial insider trading” by providing her with information about the result of the Court’s decision in Citizens United prior to its issuance, which she then used to launch a new company to take financial advantage of that decision to benefit her and her husband.

On Friday, May 27, 2011, Clarence Thomas’ 2010 Financial Disclosure Forms were released showing that he had invested thousands of dollars in Liberty Consulting Inc. a lobbying and consulting firm founded by his wife to cater to the “tea party.” The disclosure also revealed that his wife received “salary and benefits” from Liberty Consulting and Liberty Central.

Clarence Thomas’ questionable ethics, revealed during his confirmation hearings (when salacious allegations were made by women, which make the Anthony Weiner scandal look tame) to his (and Antonin Scalia’s) socializing with parties who have interests before the court, to his wife’s advocacy on healthcare reform despite it being almost certain to come before the Court, and now this, should be the subject of greater media and federal attention. The Times story should be the beginning of that. If not, the media, Congress (where the main advocate of investigating Thomas’ behavior has now been forced by his colleagues to resign) and the Justice Department should explain to the public why potential ethical transgressions by a sitting Supreme Court justices merit no attention, while silly, sordid non-sex sex scandals rule the news cycle for three straight weeks.


What Weinergate interrupted: Clarence Thomas’ (ongoing) conflict of interest scandal (links archive) **UPDATED**

UPDATE: Common Cause says Congress should look into New York Times story, and addresses the “judicial code of conduct” issue:

Americans are entitled to a quick and complete response – directly from Chief Justice John Roberts and Justice Clarence Thomas – to the serious legal and ethical questions raised by today’s New York Times report on Justice Thomas’ travel and apparent fundraising activities, Common Cause said today.

“Has Justice Thomas been traveling on a developer’s private jet, on the developer’s dime, while reporting that his expenses were borne by someone else?” asked Bob Edgar president of the nonpartisan government watchdog group. “Do Supreme Court justices get a pass on the ethical standards that every other judge must meet?”

Edgar said Thomas must speak to the discrepancies between his financial reports and the Times’ account of his travel aboard a jet owned by Dallas developer Harlan Crow. And Chief Justice Roberts, as steward of the court’s reputation, must clarify how the Court intends to meet its commitment to observe the ethical requirements imposed on other judges, Edgar asserted.

“Today’s story in the Times should trigger alarms in Congress and bar associations across the country, as well as in the Court itself,” Edgar said. “It appears Justice Thomas may have provided false information, under oath, on his disclosure form. If so, it’s a matter for federal prosecutors to review under the Ethics in Government Act, which imposes criminal penalties for such violations.”

Common Cause discovered in January that Justice Thomas had failed over 20 years to meet the Ethics Act’s requirement that he report his wife’s sources of income. Thomas submitted amended reports hours after that revelation, saying his earlier failure was inadvertent.

“Justice Thomas already has displayed what is at best a troublingly cavalier attitude toward a critical disclosure requirement,” Edgar said. “The annual disclosure forms are the only mechanism that lawyers and litigants have to verify that the justices are not participating in cases in which they have a financial interest.

“The Times’ report also suggests that Justice Thomas has violated a longstanding ethical standard for judges by participating in fundraising on behalf of a museum in his hometown,” Edgar added. “The project certainly appears worthy, but the Code of Conduct for U.S. Judges explicitly prohibits other judges from fundraising activities even on behalf of good causes (link to relevant section of the code).

Edgar noted that Justices Anthony Kennedy and Stephen Breyer told a House subcommittee this spring that members of the high court are voluntarily complying with the Code of Conduct and its canons; the new revelations about Justice Thomas suggest otherwise, he said.

Related: Supreme Court justices and impeachment, including this very interesting development:

On Thursday the U.S. House of Representatives voted to impeach federal Judge G. Thomas Porteous Jr. of Louisiana. Though Porteous is not a member of the Supreme Court, his situation is a good example of what could happen to a justice were he or she to be served an impeachment.

The House approved articles of impeachment contained in a resolution, charging that Porteous received money in a case he oversaw, accepted valuable items from a bail bondsman in exchange for making official actions, made false statements about his personal bankruptcy filing, and made false statements during his confirmation hearing process.

From here, Porteous could be tried in the Senate on the four articles of impeachment. If two-thirds of the Senate votes that based off of the trial proceedings, they find these articles to be true, they will convict Porteous and remove him from office.

UPDATE 2: Politico posts a rundown of the blog reaction to the story (and gets my background wrong: I never worked for the John Kerry campaign.) Among the link highlights: Think Progress says the Thomas affair is Abe Fortas all over again, and someone named Donald Douglas retreads the now-familiar whine about poor, downtrodden black conservatives.

And from The Atlantic: A Brief History of Clarence Thomas’ Ethical Entanglements

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10 Responses to The growing Clarence Thomas ethics problem **UPDATED: Common Cause, Politico, ThinkProgress weigh in

  1. bmull says:

    The reason that potential ethical transgressions merit no attention is that the Code of Conduct for Judges doesn’t apply to the Supreme Court. A criminal investigation, let alone prosecution, would raise serious separation of powers issues. And impeachment is impossible given the current makeup of Congress. Why worry about something that can never happen?

  2. Rupert says:

    Maybe so BMull, but Anthony Weiner wasn’t run out of office by any imminent legal or ethical investigation (though there was the threat of one). So let the media hound Uncle Clarence about his conflict of interest and 20 year failure to file proper disclosure forms. To say they “merit no attention” is incorrect, and I”m glad to see Jim Morin in the Herald today giving it attention. The Justices aren’t so vulnerable to public opinion, by design, and Thomas won’t resign, but the matter merits attention.

  3. hank kelly says:

    Clarence Thomas is a prime example of why no one should be given a life time appointment. He is untouchable and unimpeachable. No one should have the kind of power that he has. This is one of the biggest flaws in America’s democracy. Give Supreme Court Justices an 8 – 10 year term.

  4. Justices Breyer and Kennedy recently said that SCOTUS does follow the Code of Judicial Conduct even though it doesn’t explicitly apply to SCOTUS. So Thomas’ conduct is contrary to the self-imposed standards of the court.

    Congress needs to pass H.R.862, Supreme Court Transparency and Disclosure Act of 2011.

    Chief Justice John Roberts needs to go on record about what ethical codes–if any–the court adheres to.

    And Clarence Thomas needs to disclose whether he received gifts, whether he used Harlan Crow’s planes/yacht and, if so, who paid for it?

    There’s no subjective way to look at this, these are matters of fact, not opinion. Common Cause urges citizens to hold Congress accountable for the low standards of our highest court.

  5. JReid says:

    @BMull –
    So if I understand you correctly, we should shut up about clear instances of corruption by a sitting Supreme Court Justice, but we should whinge about every instance where the president doesn’t use his magic powers to force Congress to legislate? Really?

  6. Pingback: What Weinergate interrupted: Clarence Thomas’ (ongoing) conflict of interest scandal (links archive) **UPDATED** : The Reid Report

  7. Pingback: The growing Clarence Thomas ethics problem LOLZ… there wasn’t one « Simon Studio Analysis

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  9. Goldie says:

    Uncle Thomas is a disgrace of an American Supreme Court judge. He is an insignificant piece of animal manure! He certainly aint a great Thurgood Marshall! History will label this jerk as something that harbored deep hatred and resentments against his blackness, poor people, and black women and black children! He should drop dead! A useless piece of shit!!!

  10. If Justice Thomas were a Progressive, the Left would have embraced Thomas with open arms decades ago in spite of his positions or what the left has deemed Thomas’ shortcomings.
    Because the man thinking for himself refuses to live in the box, correction on the Progressive plantation with the rest of the useful idiots, Progressives take issue and have, therefore, decided that Thomas’ must be punished, correction, put in his place.
    The assault on Thomas, the man, by Progressive pawns is the result of decades of conditioning and indoctrination by the Progressive slave master.

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