Clarence Thomas took the oath of office as a Supreme Court justice two decades ago under an ethics cloud cast by charges of sexual harassment that came down to a still unresolved swearing contest between himself and Anita Hill. Today, Thomas is again under an ethics cloud, but for the most part the actions and omissions being questioned are undisputed, with only their significance up for debate.
The current ethics inquiries began in January with the disclosure that Thomas and his conservative colleague Antonin Scalia had attended a political retreat in January 2008 run by the wealthy industrialist brothers Charles and David Koch, high-spending patrons of political causes. To the public interest group Common Cause, Scalia’s and Thomas’s attendance raised questions about their later participation in the high-profile campaign finance case Citizens United because the Koch brothers stood to benefit from a ruling to lift restrictions on corporate spending in political campaigns.
In the same month, the Los Angeles Times reported that Thomas had failed for at least five years to disclose the income that his wife Ginny had received from the Heritage Foundation, the conservative think-tank. Ginny Thomas earned $680,000 during the time period, but until he revised the financial disclosure forms recently following the newspaper story Thomas had shown no spousal income on the legally mandated reports.
Now, the New York Times has raised a third ethics issue by depicting Thomas as having provided critical fund-raising assistance to a planned museum to celebrate the history and culture of his birthplace, Pinpoint, Georgia. As the Times reported in a long investigative article [June 18], Thomas helped the promoter of the museum secure a multimillion-dollar donation from Harlan Crow, a Texas real estate magnate and personal friend and benefactor of Thomas’s for years.
The Code of Judicial Conduct, in Canon 4C, generally prohibits federal judges from participating in fund-raising activities beyond assistance in planning or solicitation of family members or fellow judges. The code is binding on most federal judges, but not Supreme Court justices.
The details of Thomas’s role in the Pinpoint museum project are yet to be filled in. According to the Times, Algernon Varn, grandson of the owner of the cannery to be preserved and converted into the museum, Thomas told him, “I’ve got a friend I’m going to put you in touch with.” The story does not specify whether Thomas personally called Crow or merely allowed Varn to use his name in soliciting the Texan. Both Thomas and Crow declined to respond to questions, the newspaper said.
Crow was reported to have made a seven-figure contribution to finance the purchase and restoration of the cannery, where Thomas’s mother once worked as a crab picker. Earlier, Crow had helped finance a library project in Thomas’s childhood home of Savannah dedicated to the justice, the Times stated. Crow also gave Thomas a historic bible once owned by Frederick Douglass and valued at $19,000. And he reportedly provided $500,000 to Ginny Thomas to start a Tea Party-related group.
By checking flight logs, the newspaper also reported circumstantial evidence that Thomas has flown on corporate jets provided by Crowd to attend speaking events. The newspaper said no travel gifts were reported on Thomas’s financial disclosure forms.
Conservative court-watcher Curt Levey sees no real ethics issues here. Levey, executive director of the Committee for Justice, dismisses criticism of Scalia’s or Thomas’s attendance at the Koch brothers’ event and minimizes the omissions of Ginny Thomas’s income as mere error. He finds nothing unethical in what he assumes to have been Thomas’s role in merely introducing the Pinpoint museum promoter to his friend Crow.
For Levey, the episode is fueled by liberal anger and paranoia. But there is purpose, he believes. Liberals, he says, hope to intimidate conservative justices on issues headed their way notably, President Obama’s health care reform and to delegitimate any decisions that go against liberal positions.
Thomas apparently shares this view, according to the Wall Street Journal’s account of a speech the justice gave to a Federalist Society conference at the University of Virginia on Feb. 26. In the speech, Thomas said his critics “seem bent on undermining” the Supreme Court’s legitimacy in the public’s mind.
The public interest group Common Cause, however, believes the issues are substantial and call for a response not only from Thomas but also from Chief Justice John G. Roberts Jr. The group says Scalia and Thomas both should have recused themselves from the Citizens United case and the decision now should be set aside and the case re-argued. Arn Pearson, the group’s vice president for program, dismisses as implausible Thomas’s claim that he misunderstood his obligation to disclose his wife’s income. And the possible fundraising violations reported by the New York Times call for a full review by the court and for some mechanism to apply the ethics code binding on the justices themselves.
Levey thinks these issues will not go far, and he may be right. The court is not about to reconsider Citizens United. The Justice Department is not about to take on a justice’s now corrected errors on financial disclosure. And any thought of impeachment dies in the Republican-controlled House of Representatives. But the events paint an indelible portrait of a justice who takes less care with ethics issues than the public might expect from the highest court in the land.