Clarence Thomas, Supreme Court justice, and his full-time political activist wife Virginia Thomas are Washington’s power couple du jour. The New York Times lifted them to full-fledged celebrity status by using a flattering photograph of the couple as the cover of the Sunday magazine last month [Feb. 22] under the headline, “The Long Crusade of Clarence and Ginni Thomas.”
The cover photo illustrates the wisdom of Ronald Reagan’s communications team that a journalist’s hard-hitting report matters not a bit if the accompanying visuals are favorable. The Sunday magazine cover with the accompanying headline depicts the long-married couple as dedicated crusaders for political and legal justice.
Moving away from the photograph, however, readers found a thoroughly documented article by investigative reporters Danny Hakim and Jo Becker that raised several ethical issues about the justice’s participation in political events and about the effect of Ginni’s political work on Thomas’s votes in Supreme Court cases.
As
the most concrete example, Hakim and Becker uncovered Ginni Thomas’s role as a
leader of the conservative National Policy Council in encouraging members after
the November election to contact legislators in three Biden-carried states to nullify
Biden’s popular vote victories in those states. “The aim,” as Hakim and Becker
wrote, “was audacious: Keep President Donald J. Trump in power.”
It needs to be recalled that
Trump, throughout this period, was challenging the Supreme Court to show
resolve by validating his unsubstantiated claims of voting fraud in the
election and by supporting his efforts to overturn the results of the election.
In effect, Trump was counting on Justice Thomas and the other Republican-appointed
justices as his hole card to support the first ever coup in U.S. history even
as Thomas’s wife was encouraging her right-wing allies to do the same.
Later, Ginni Thomas signed, along with 40 other self-identified conservatives, a Dec. 15 letter calling for the House Republican caucus to expel the two GOP members serving on the select committee investigating the Jan. 6 insurrection at the Capitol. On the very day of the Jan. 6 insurrection, Ginni Thomas in fact urged her Facebook followers to watch how the day unfolded, according to Hakim’s and Becker’s reporting. “LOVE MAGA people!!!!” she posted before the march turned violent. “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”
As one suggestion of Ginni’s influence on her husband, the reporters noted that Justice Thomas was the lone dissenter from the Court’s 8-1 decision to order the Trump White House to turn over records and correspondence that the House committee was seeking to investigate Trump’s role in the insurrection. Significantly, Thomas participated in the case without recusal, as might have been expected given his wife’s public criticism of the committee’s work.
Supreme Court experts can recall no Supreme Court spouse in history to have engaged so actively in partisan politics while her husband served on the Court. “I’m sure there are justices’ spouses who have had strong opinions about politics,” Orin Kerr, a law professor at the University of California-Berkeley, told the Times reporters. “What’s unusual here is that Justice Thomas’s wife is an activist in politics. Historically, this is the first example of something like this that I can think of at the Supreme Court.”
Two weeks after the Times magazine piece, another reporter raised a separate ethical issue about Thomas, this one focused solely on the justice himself and his decision in December to hire the prominent right-wing judicial lobbyist Leonard Leo to promote a new ebook edition of Thomas’s memoir. The article by reporter Roger Sollenberger appeared in the online publication The Daily Beast on March 8 under this headline: “Clarence Thomas’s Strange Pick to Promote His Book Says It All.”
Sollenberger noted Leo’s history as the former head of the Federalist Society and a “top fundraiser for right-wing judiciary activist groups” and depicted the role of Leo’s public relations firm CRC Advisors as going beyond promoting Thomas’s book and also to promoting a Thomas documentary and serving as registered agent for four Thomas-centric web domains.
“What makes Thomas’ decision notable is that Leo happens to have a vested interest in the Supreme Court, and his dark money network actively tries to influence rulings,” Sollenberger wrote. Sollenberger quoted several experts as suggesting that Thomas’s connection with Leo “raises further questions about the arch-conservative justice’s deep and shady ties to a sprawling network of dark money organizations and right-wing activist groups, many of which have business before him.”
Paul Collins, professor of political science at the University of Massachusetts at Amherst and author of several books about the high court told Sollenberger that Thomas’ specific choice of Leo’s firm was “strange” and “unnecessary.” Somewhat less critically, Stephen Gillers, a legal ethics expert at New York University Law School, told Sollenberger that Thomas’s ongoing connection with Leo was newsworthy but not of itself unethical. “It may appear to many people as unseemly,” Gillers said, “but that’s not a legal question.”
Senator Sheldon Whitehouse, a Rhode Island Democrat and longtime Senate critic of the right-wing campaign to control the Supreme Court and the federal judiciary, sharply criticized Thomas’s connection with Leo. “Leo and his CRC Advisors form the head of a many-legged dark-money operation designed to deliver on the priorities of right-wing donor interests,” Whitehouse told Sollenberger.
It is worth recalling here that Republicans hounded Justice Abe Fortas off the Supreme Court in 1969 based on an ethical issue far narrower than those being raised about Thomas’s political involvement today. Fortas was paid $15,000 for teaching a course at American University Law School that was funded by former clients from his law practice. He also accepted a $20,000 speaking fee from a family foundation of the financier Louis Wolfson, then under investigation for securities fraud. Fortas eventually returned the money but his reputation was ruined, leading to the first ever ethics-inspired resignation from the Court.
The Constitution specifies that Supreme Court justices and federal judges serve not for fixed terms but “during good behavior.” A question today for Justice Thomas is how much “unseemly” behavior is needed to disqualify him from continuing to serve on the Court.
No comments:
Post a Comment