For good reason, there has been serious hand-wringing over what to do about the ethical lapses of U.S. Supreme Court Justice Clarence Thomas. The fact that Supreme Court justices are exempt from the code of ethical conduct which applies to the rest of the federal judiciary; the problem of bringing a sitting justice before the Congress to question the conduct of a constitutional co-equal; the reality that justices cannot easily defend themselves against news media charges; the defiant, in-your-face posture of Thomas -- the list goes on but it need not. There is clear precedent for how to deal with the justice. Thomas could be forced off the bench.
As the associate deputy attorney general in President Richard M. Nixon's Department of Justice, I was there when Assistant Attorney General William Rehnquist outlined how to remove a Supreme Court justice who had engaged in conduct not quite as troublesome as that of Thomas. Rehnquist, of course, would later become chief justice of the United States. His memorandum providing the process for the Department of Justice to proceed against then Supreme Court Justice Abe Fortas remains solid precedent and the way to deal with Clarence Thomas. But before looking at the solution, I should explain the problem.
To begin with, there is absolutely no question in my mind that Thomas lied his way onto the Supreme Court in 1991 when he denied Anita Hill's charges that he had sexually harassed her and some of his other subordinates. If anyone needs proof, please examine the reporting of Jane Mayer and Jill Abramson, authors of "Strange Justice: The Selling of Clarence Thomas," which sets forth the case against Thomas with an abundance of clear and convincing evidence (not to mention the evidence corroborating Hill that Joe Biden, then chairman of the Senate Judiciary Committee, withheld).
The way Thomas reached the court is important for two reasons. First, there was once a time when those sitting on our highest bench would never do anything to tarnish the court, and this factors into both his conduct and the chances of his removal. Secondly, Thomas' deceit during his confirmation hearing has overshadowed all of his behavior since he arrived on the court.
Thomas fooled no one when he dissembled in 1991. Those who embrace
his consistently radical conservative voting record often overlook how
he arrived on the high court, and a few supporters and admirers even
defend him by diminishing the significance of his persistently
questionable behavior. Those who are unhappy with Thomas as a justice,
not to mention his aggressive polarization of the court, find that he
has simply lived down to his standards as a scoundrel and fabulist. No
one is particularly surprised that his behavior as a justice just keeps
sinking lower and lower, constantly reaching new bottoms. (For a catalog
that samples Thomas' failings, see The Reid Report.)
Many Supreme Court justices enjoy the company of well-off social friends. Few justices have significant wealth, and since their pay is so low relative to their stature, almost all live quite modestly. There is nothing wrong with justices having a few friends who can occasionally provide an especially pleasant social interlude while seeking nothing other than making life a bit more pleasant for these dedicated public servants. In fact, I have friends who socialize with justices. I can assure you they are all extremely sensitive to the nature of these relationships and would never exploit the friendships.
Thomas and his friends have no such compunctions. Maybe the way Thomas arrived on the court explains why he operates at the outer edges of court propriety, if not beyond. Maybe because he is held in such low esteem by so many on the bench and at the bar he simply does not care. As his book showed, he is a bitter man. The Washington Post noted that he used his 2007 memoir, "My Grandfather's Son," to "settle scores," while "scathingly condemning the media, the Democratic senators who opposed his nomination to the Supreme Court, and the "mob' of liberal elites and activist groups that he says desecrated his life." In short, he sees himself as a victim, so his actions may be his own private revenge. However, for those who have followed his career, as I have, it was not surprising to see the latest revelation in The New York Times, which reports again about Thomas' "friendship" with Harlan Crow, a Dallas real estate magnate and big-time benefactor of conservative causes.
This relationship is deeply conflicted because Crow's financial and political interests are frequently before the Supreme Court. Nonetheless, Crow continues to bestow endless gifts and favors on Thomas or fund matters of serious interest to the justice, such as giving Thomas a $19,000 Bible that once belonged to Frederick Douglass, donating $175,000 to finance a library project dedicated to Thomas in Savannah, Ga., and, as was recently revealed, providing not less than $2.8 million to acquire and preserve a crab and oyster cannery near Thomas' childhood home in Pinpoint, Ga., a project that is operating under Thomas' supervision.
One suspects this is but the tip of the iceberg because Thomas' wife, Virginia (known as Ginni), is a Crow-funded conflict of interest with whom the justice literally sleeps. Ginni is not merely a foot-stomping, full-throated tea party activist, but she is a highly paid lobbyist. According to congressional information, in the past few years she has earned some $700,000 for her tea party work. In addition, Crow reportedly provided Ginni Thomas some $500,000 to start her tea party group, Liberty Central, which pays her so well. Ginni Thomas openly lobbies issues that have or will come before the Supreme Court, such as health care reform.
When 74 Democratic members of Congress requested that Justice Thomas disqualify himself from any ruling on the new health care reform law, which is making its way toward the Supreme Court thanks in part to the efforts of the tea party and Ginni Thomas to have that law ruled unconstitutional, he ignored the request. This is his standard operating procedure. Thomas simply is not troubled by those who are concerned that a justice and his wife directly and indirectly receive financial benefits from "a friend" with both financial and political interests before the court.
The question is what can be done about this problem. Early this year,
U.S. Rep. Christopher Murphy, a Connecticut Democrat, introduced the
proposed Supreme Court Transparency and Disclosure Act of 2011 (H.R.
862). When introducing this legislation, which would extend to Supreme
Court justices the code of professional conduct that applies to all
other federal judges, Murphy cited the conflict of interest and
political actions of Justice Clarence Thomas.
Recently, the bill received a glimmer of press attention as a result of Thomas' latest reported shenanigans, and the website Daily Kos is collecting signatures for a petition supporting Murphy's proposal. In fact, the proposal in the GOP-controlled House of Representatives is the proverbial snowball in hell. Nothing is going to come of it, even if Daily Kos collects 100 million signatures. Plus, the proposal is laden with serious constitutional questions and problems. At the top of that list is the likelihood that the Supreme Court would declare it unconstitutional if it were adopted.
There is a way, nonetheless. As a young official in Nixon's Department of Justice -- and, I must admit, with some amazement -- I watched a Republican Justice Department and a conservative attorney general go after a liberal Supreme Court justice with remarkable success. Robert Shogan, a former Los Angeles Times and Newsweek reporter, recounted much of the story in "A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court." I filled in a few missing pieces when I wrote "The Rehnquist Choice." Rehnquist in those days was the head of the Office of Legal Counsel and prepared a detailed memorandum for Attorney General John Mitchell explaining how to undertake an action that had never before been done, namely for the Justice Department to start a criminal investigation of a sitting justice, not based on hard information but rather based mainly on speculation of a worst-case scenario, i.e., assuming gifts and favors were bribes.
With the Rehnquist memo in hand, Mitchell arranged a secret meeting with then Chief Justice Earl Warren, and told Warren that if Fortas did not resign from the court the Justice Department was going to launch an investigation of Fortas' dealing with a financier, Louis Wolfson, then recently convicted of securities violations, because of Wolfson's earlier gifts to his friend Fortas and Fortas' wife. The case against Fortas was weak, yet Mitchell was more than bluffing. He was prepared to have a grand jury determine whether there was a fire amid the smell of smoke. When Fortas, a formidable legal mind, tested the bluff, Mitchell upped the stakes. He passed the word that he was going after Fortas' wife, Carol Agger, a highly successful tax law specialist, as well as Fortas' former law partner, Paul Porter. Mitchell said that he was considering reopening a grand jury proceeding that had cleared both Agger and Porter regarding a case disposed of years earlier. This, too, bordered on being a trumped-up charge, but an attorney general can make good on a bluff and actually convene a grand jury. That was not necessary. Rather than put his wife and former partner through the agony, or tarnish the court by the very fact of such a proceeding, Fortas resigned.
The parallels of the Thomas and Fortas behavior is striking. The recent New York Times article strongly suggests that Thomas has failed to file required annual financial statements. He has failed to do this in the past, claiming it an oversight. The line between gifts and bribes in these circumstances is as fine as a hair on a frog's back. One suspects Thomas and his wife would not do well with close scrutiny. The Rehnquist memo, sitting in the files of the Office of Legal Counsel, provides the precedent to undertake such a federal investigation of both Clarence and Ginni Thomas. Does anyone who follows politics not believe that if the situations were reversed and Republicans found one of the Democrats on the Supreme Court engaging in similar behavior they would not employ the Fortas option? Of course they would.
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