Commentary

For Clarence Thomas, every day reveals another gift. There’s only one way for this to end. Are you listening Chief Justice Roberts?

(Note: the image accompanying this story is from the Times’ Maureen Dowd’s column today, “Supremely Arrogant.” I don’t believe there can be a better image of the current status of the Supreme Court than this one. In her Op-Ed, Dowd not only takes on Thomas but his fellow conservative…and arrogant…colleagues, Justices Gorsuch and Alito. And, yes, Chief Justice Roberts as well.)

With apologies to Andrew Lloyd Webber and Tim Rice who wrote the original song from “Evita:”

ProPublica’s ongoing exposé of billionaire Harlan Crow’s largesse to Associate Justice of the Supreme Court Clarence Thomas reveals a new “gift” almost daily. The latest? Crow paid for private school for a relative Thomas said he was raising “as a son.” Per ProPublica:

In 2008, Supreme Court Justice Clarence Thomas decided to send his teenage grandnephew to Hidden Lake Academy, a private boarding school in the foothills of northern Georgia. The boy, Mark Martin, was far from home. For the previous decade, he had lived with the justice and his wife in the suburbs of Washington, D.C. Thomas had taken legal custody of Martin when he was 6 years old and had recently told an interviewer he was “raising him as a son.”

Tuition at the boarding school ran more than $6,000 a month. But Thomas did not cover the bill. A bank statement for the school from July 2009, buried in unrelated court filings, shows the source of Martin’s tuition payment for that month: the company of billionaire real estate magnate Harlan Crow.

The payments extended beyond that month, according to Christopher Grimwood, a former administrator at the school. Crow paid Martin’s tuition the entire time he was a student there, which was about a year, Grimwood told ProPublica.

“Harlan picked up the tab,” said Grimwood, who got to know Crow and the Thomases and had access to school financial information through his work as an administrator.

In a dancing on the head of a pin defense of this latest unreported gift, the Times reported this statement from a Thomas “friend:”

In his statement, Mark Paoletta, Justice Thomas’s friend and a former official for the Trump administration, argued that the justice was not required to report the tuition. He pointed to part of a 1978 law that says judges must disclose gifts to dependent children, who are defined as “a son, daughter, stepson or stepdaughter.” (emphasis mine) Mr. Paoletta stressed that by that measure, a great-nephew does not qualify.

“This malicious story shows nothing except for the fact that the Thomases and the Crows are kind, generous and loving people who tried to help this young man,” Mr. Paoletta wrote.

This, despite the fact that Thomas gained legal custody of Martin and became his legal guardian around January 1998, according to court records.

As Richard Painter, former chief White House ethics lawyer for President George W. Bush said, referring to the cascade of gifts over the years, “This is way outside the norm. This is way in excess of anything I’ve seen.”

Painter said that when he was at the White House, an official who’d taken what Thomas had would have been fired: “This amount of undisclosed gifts? You’d want to get them out of the government.”

The ProPublica reporting states that Justice Thomas vacationed with Crow on luxury trips “virtually every year” for over 20 years. Thomas has traveled via Crow’s private jet and spent weeks island-hopping in luxury on his private yacht. One nine-day yacht excursion in 2019 would have cost Thomas an estimated $500,000 out-of-pocket, but Crow footed the bill for that and many other trips. 

Other vacations Crow apparently financed for Justice Thomas include trips to Crow’s ranch in Texas, to an all-male retreat in California, and to Crow’s private resort in the Adirondacks.

But wasn’t there also a real estate deal as well? Funny that you mentioned it. Again, per ProPublica:

In 2014, one of Texas billionaire Harlan Crow’s companies purchased a string of properties on a quiet residential street in Savannah, Georgia. It wasn’t a marquee acquisition for the real estate magnate, just an old single-story home and two vacant lots down the road. What made it noteworthy were the people on the other side of the deal: Supreme Court Justice Clarence Thomas and his relatives.

The transaction marks the first known instance of money flowing from the Republican megadonor to the Supreme Court justice. The Crow company bought the properties for $133,363 from three co-owners — Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed dated Oct. 15, 2014, filed at the Chatham County courthouse.

The purchase put Crow in an unusual position: He now owned the house where the justice’s elderly mother was living. Soon after the sale was completed, contractors began work on tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home, which looks out onto a patch of orange trees. The renovations included a carport, a repaired roof and a new fence and gates, according to city permit records and blueprints.

A federal disclosure law passed after Watergate requires justices and other officials to disclose the details of most real estate sales over $1,000. Thomas never disclosed his sale of the Savannah properties. That appears to be a violation of the law, four ethics law experts told ProPublica.

The disclosure form Thomas filed for that year also had a space to report the identity of the buyer in any private transaction, such as a real estate deal. That space is blank.

What’s been Thomas’ response to all this?

“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,” Justice Thomas said. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”

Right, the Yale-educated Supreme Court Justice wasn’t aware enough of the law that he had to to seek “guidance” from “colleagues and others in the judiciary.”

If you believe that, I really do have a bridge in Brooklyn to sell to you!

Or, as Lisa Graves, former deputy assistant attorney general in the Justice Department’s Office of Legal Policy opined, “He (Thomas) needs to name every person he spoke with who gave him such advice, and whether they’re in government or outside the government. Because I would be shocked if he actually told any official the specifics of what he was doing and that they said it was OK not to disclose it.”

In another statement of no wrong-doing, Thomas wrote, “Harlan and Kathy Crow are among our dearest friends. As friends do, we have joined them on a number of family trips.” To which Crow told ProPublica that his gifts to Thomas were “no different from the hospitality we have extended to our many other dear friends.”

Extended to “many other dear friends?” As Connecticut senator Chris Murphy tweeted, “It’s not like Harlan Crow is some apolitical pal of Thomas. He CONSTANTLY has cases before the court. He funds groups that argue for outcomes that benefit him. One group, CCI, filed 8 briefs before the Court. Thomas sided with Crow in all 8 cases.”

And “best friend” Ginni Thomas?

As reported by Bess Levin of Vanity Fair:

Conservative judicial activist Leonard Leo arranged for the wife of Supreme Court Justice Clarence Thomas to be paid tens of thousands of dollars for consulting work just over a decade ago, specifying that her name be left off billing paperwork, according to documents reviewed by The Washington Post. In January 2012, Leo instructed the GOP pollster Kellyanne Conway to bill a nonprofit group he advises and use that money to pay Virginia “Ginni” Thomas, the documents show. The same year, the nonprofit, the Judicial Education Project, filed a brief to the Supreme Court in a landmark voting rights case.

Leo, a key figure in a network of nonprofits that has worked to support the nominations of conservative judges, told Conway that he wanted her to “give” Ginni Thomas “another $25K,” the documents show. He emphasized that the paperwork should have “No mention of Ginni, of course.”

The story led Levin to write, “It sure sounds like Clarence and Ginni Thomas are the most corrupt couple in Washington.”

I’ll close with another apology to Sir Andrew and Mr. Rice:

Commentary from The Nation magazine

The controversies surrounding Clarence Thomas and Diane Feinstein are issues I’ve wanted to write about for quite some time. But, I thought, why should I write it when I couldn’t possibly do better than this editorial by D.D. Guttenplan, the editor of The Nation?

(Note: I’ve kept all the links from the original article for your further reading. Also, after The Nation’s editorial, I’ve added some commentary of my own.)

Although we commonly refer to justices on the federal bench as being appointed “for life,” Article III of the Constitution says rather that judges “shall hold their Offices during good Behaviour.” Violations of this standard, the Constitution stipulates, are determined via impeachment by the House and trial by the Senate. A total of 15 federal judges have been impeached—on charges ranging from drunkenness and mental instability to bribery, perjury, and treason. Eight were removed from office, including Robert Archbald, who in 1910 took his wife on a trip to Europe paid for by Henry Cannon, an officer of railroad and coal companies that sometimes had business before the court.

Archbald’s wife testified that Cannon was her cousin and that the two families frequently enjoyed traveling together. The New York Times described Archbald’s testimony, in which he admitted accepting the gifts but denied any impropriety, as “strong in his defense.” But the Senate felt otherwise, and he was convicted.

The corrupt relationship between Clarence and Ginni Thomas and the Texas billionaire and right-wing donor Harlan Crow clearly exceeds the standards set by Archbald’s impeachment. As ProPublica’s stunning investigation has revealed, Crow—who not only picked up the tab for luxury travel by the Thomases but also bought the justice’s childhood home(where his mother still lives, rent-free)—was a member of the founding committee of the Club for Growth, a trustee of the American Enterprise Institute, and a donor to other right-wing groups that have all filed amicus briefs with the Supreme Court. Thomas’s promise to amend his disclosure is as risible as a bank robber’s vow to give back the money.

Given his wife’s strenuous efforts to overturn the 2020 presidential election and the fact that he was the court’s lone vote against the ruling that forced Donald Trump to turn over documents to the National Archives, Thomas has also easily met the standard used to remove Judge Halsted Ritter. In 1933, Ritter was accused of accepting kickbacks and of tax evasion but was convicted only of conduct sufficient “to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the Federal judiciary.”

The relevant question, it would seem, is not whether Thomas is plausibly guilty, but whether the Democrats have the political courage to do anything about it. That’s a test congressional Democrats have already failed once—and at a time when the party had sufficient control of the House to easily approve articles of impeachment.

Now, of course, the Democratic Caucus has a better excuse for inaction, since Republicans control the House and the Senate remains unlikely to convict. But there is good reason to proceed regardless. As Representative Alexandria Ocasio-Cortez recently pointed out, Thomas’s corruption has reached “cartoonish” proportions. Her call for an independent investigation has been joined by Senator Sheldon Whitehouse and Representative Hank Johnson.

But Democrats will have to do much more than that if they want to be seen as anything other than a party of impotent hand-wringers. They’ll have to seriously pursue impeachment, which requires just a bare majority and is far from out of reach given the divisions among House Republicans.

Even without control of the House, Democrats lead Senate committees with enough power to compel testimony and inform the public about the scale of the corruption. Normally, the Judiciary Committee would be first in line.

But Dianne Feinstein’s mental incapacity—an open scandal currently hidden behind references to a case of “shingles” from which she is expected to recover—has deprived the committee of the majority vote needed not only to investigate Thomas but also to confirm President Biden’s nominees to the federal bench. Again, Democrats seem more disposed to make excuses than to take action. That, too, is a scandal.

It may well suit the party’s corporate-friendly, Wall Street–funded leadership to posture about its commitment to working people while failing to act—not just on Thomas but on student loan relief, voting rights, and abortion access. But voters won’t be fooled forever by politicians who don’t actually fight for them. If Democrats want to show they mean business, they could do a lot worse than cleaning house by removing Feinstein—and then impeaching Clarence Thomas.

Commentary from Ted Block

Full disclosure: I cheated. I did not reprint everything from The Nation’s story; I omitted the original sub-heading: We’ve booted Supreme Court justices for a lot less.

Why did I leave it out? Because it’s not true.

The opening paragraph includes this:

“A total of 15 federal judges have been impeached—on charges ranging from drunkenness and mental instability to bribery, perjury, and treason. Eight were removed from office…”

That excerpt is the editorial’s only reference to impeached and/or removed judges. Only one of those 15, Associate Justice Samuel Chase, was a sitting SCOTUS justice. He was impeached by the U.S. House of Representatives on March 12, 1804. The charges against him were “arbitrary and oppressive conduct of trials.” Chase was acquitted by the U.S. Senate on March 1, 1805.

So, if the “booting out” is referring to Chase, it’s somewhat disingenuous in that: a) he wasn’t “booted out; b) it happened 218 years ago; and c) in those intervening 218 years no other Supreme Court justice was booted out. (Or at least, I couldn’t find one.)

And, if the booting out references concern state Supreme Court justices, that’s simply not relevant; state justices and judges, “supreme” or not, are not part of the federal judiciary and, importantly, most state Supreme Courts have term and/or mandatory retirement limits. They are, unlike SCOTUS, not lifetime appointments.

In my mind, a more appropriate, in fact the most applicable subhead would have been:

Clarence Thomas: Emulate Abe Fortas and do the right thing – resign.

Abe who?

Abe Fortas, a lawyer and close personal friend of President Lyndon B. Johnson was nominated by Johnson as an associate justice of the United States Supreme Court in 1965. He was confirmed by the Senate in a voice vote ( oh my, how things have changed). Then, in 1968, Johnson nominated Fortas to replace Earl Warren as Chief Justice. That confirmation hearing did not go as smoothly.

Antisemitism likely played a role in the confirmation battle, during which Mississippi Democratic senator and chairman of the Judiciary Committee, James Eastland, reportedly said, “After [Thurgood] Marshall, I could not go back to Mississippi if a Jewish chief justice swore in the next president.” Ultimately, Johnson withdraw Fortas’ name.

But that nomination and the antisemitism encountered by Fortas is not the story here.

Fortas remained an associate justice, but in 1969, a scandal arose (there had been other Fortas impropriety scandals before). Fortas had accepted a $20,000 (equivalent to $148,000 today) retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas’s life (and then pay his widow for the rest of her life).

Wolfson was under investigation for securities violations at the time, and it was alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon. He asked Fortas to help him secure a pardon from Johnson, which Fortas claimed that he did not do. Although Fortas, unlike Clarence Thomas, recused himself from Wolfson’s case when it came before the Court, there was more to come.

In May 1969, Life magazine chronicled Fortas’s relations with Wolfson. The story’s revelations accelerated calls for Fortas to be impeached. Chief Justice Earl Warren and Justice Hugo Black wanted Fortas to resign not only to avoid impeachment hearings, but in order to maintain the integrity of the Court. (Are you listening, Chief Justice Roberts?). Fortas ultimately decided resignation would be best for him and for his wife’s legal career, particularly after Richard Nixon’s attorney general, John Mitchell, threatened to prosecute him, and potentially investigate his wife for tax evasion. (Are you listening Merrick Garland??)

Abe Fortas resigned from the Court on May 14, 1969.

Wolfson was convicted of violating federal securities laws later that year and spent time in prison.

As of this writing, Clarence Thomas is still an associate justice of the Supreme Court.

And, Harlan Crow continues to collect Nazi memorabilia while maintaining his “Garden of Evil” containing  a collection of stone and bronze statues of fallen communist leaders.