Monday, June 20, 2011

A Free Pass For Clarence Thomas

The sun rises in the east, sets in the west, and Clarence Thomas has demonstrated that he lacks the basic integrity required of judges below the level of the U.S. Supreme Court. The New York Times reports

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....

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.

The relationship is similar to that held by then-Supreme Court Justice Abe Fortas, who also took inappropriate gifts from wealthy benefactors and, unlike, Thomas, resigned in pressure. Clarence Thomas is a special guy, one who has attended a Koch-sponsored political fundraiser; refused to recuse himself from lawsuits filed against the Affordable Care Act while wife Ginni, a lobbyist for right-wing organizations, has publicly and actively worked against the Act; and reported to the IRS that Ginni earned no non-investment income even while she was working for the Heritage Foundation.

Digby sees "no chance" Justice Thomas will resign over the latest scandal, in part because Bush v. Gore set the Court on a much more partisan course. She believes though, that if Thomas is found to have utilized social media in the same manner as did Anthony Weiner, "all bets are off."

No, even then, the chance that Clarence Thomas, a man without shame, would resign from the Supreme Court is nil to minimal, and minimal is on its way out of town. Representative Weiner did not have his wife stand beside him during either of his press conferences, while it is likely Thomas- if pressed to depend his behavior would insist that she go the Wendy Vitter route. Additionally, it is unlikely Ginni Thomas would be as successful professionally were her husband not sitting on the U.S. Supreme Court. (Indeed, the relationship is the basis of a portion of the conflict of interest Thomas enjoys.)

And there is an additional reason that Clarence Thomas would not be forced from the Court- there probably is no one in the Executive or Legislative Branch who would press the point. That seems to have been taken care of as Earl Ofari Hutchinson, writing before the Crow/Thomas interplay, notes:

Democrats, from the White House down, screamed for New York Representative Anthony Weiner to resign, and he finally did. But it’s not a Democrat who’s breathing the biggest sigh of relief at Weiner’s downfall. It’s Supreme Court Justice Clarence Thomas.

There was much talk a year ago that Weiner would be the point man on the House Judiciary Committee if it decided to go after Thomas for his long trail of financial manipulations, abuse, and duplicity. Weiner gave signs that he’d be the go-to guy against Thomas. He had been publicly hammering Thomas’ dealings and demanding that he recuse himself from any High Court deliberations on the constitutionality of the health care reform law that conservatives loathe.

Weiner certainly had a lot of ammunition to make Thomas’ misdeeds a prima facie legal and political embarrassment for the GOP. Thomas’ wife Ginni had earned money from assorted right-wing foundations and think tanks, including the Heritage Foundation, the Koch brothers, the Coors family and Richard Mellon Scaife, all of whom had a major interest in a number of Supreme Court rulings. While Thomas disclosed her earnings, he did not disclose the speaking fees and perks he got from the same conservative groups that his wife worked for. He refused to acknowledge her involvement with Liberty Central, for example.

This is, as Hutchison recalls, the guy who became a Supreme Court Justice only by committing perjury before the Senate Judiciary Committee. His resignation probably would leave him vulnerable to a rehash of the Thomas-Anita Hill affair (pun intended), which would crush his reputation and legacy.

But the primary reason Clarence Thomas will not resign under any circumstances is because he won't have to do so. And for that, we can thank in part Nancy Pelosi, Harry Reid, and Barack Obama, in what was a disappointing performance by the first two.

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