More court ethics, less Clarence Thomas

‘There’s no difference between a white snake and a black snake. They’ll both bite’

- the late Justice Thurgood Marshall, 1991


U.S. Supreme Court Justice Clarence Thomas’s shameless, in-your-face, violation of judicial ethics cries out for a better way to choose justices and keep them accountable.

Literally, he is above the law that spells out ethics rules for federal judges who serve on the lower courts, but he should have known better than to get so cozy with Harlan Crow, a major donor to conservative causes and real-estate magnate from Dallas.

When he announced his retirement in 1991, the legendary Supreme Court Justice Thurgood Marshall accurately predicted that President Bush (the elder one) might replace him with another African-American nominee who would betray the primary aspirations of the black community.

After Marshall called his then-generic successor a “black snake” during his retirement announcement, Thomas’s tenure openly mocked Marshall’s lifelong struggle to advocate for the concerns of the black community, not to mention concerns that affect all Americans.

Thomas is the product of a system that protects Supreme Court justices from any reasonable accountability and was selected through a literally undemocratic process.

To be clear, Thomas and his eight colleagues on the Supreme Court are not bound by the code of conduct for federal judges on grounds that a panel of judges who rank below the justices is charged with enforcing said code.

Maybe that’s why Thomas felt free to flout the code’s provision requiring that judges “should not personally participate” in raising funds for charitable initiatives. Authors of the code were concerned that contributors might feel pressured to donate or entitled to favored treatment by the judge, and judges are not supposed to be aware of who contributes to projects which honor them.

The New York Times’s Mike McIntire chronicled a series of instances which has or might have compromised Thomas’s performance on the court. (nyt, fp, 6/19/11)

Thomas violated the code for federal judges by seeking Crow’s help in financing the multi-million-dollar purchase and restoration of a former seafood cannery in Pin Point, Ga., where his mother was employed. Thomas has made it a pet project to establish a museum about the culture and history of Pin Point.

According to the Times, this venture began a few years before when Thomas encountered Algernon Varn, whose grandfather operated the cannery, during a visit to Pin Point, the justice’s birthplace near Savannah. Thomas asked about plans for the property and Varn said he wanted to preserve it. The justice then informed Varn of a friend he would “put you in touch with.” That friend is Crow, who consented to provide financial support.

Deborah L. Rhode, a Stanford University law professor, told the Times that Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are whether he’s being centrally honored by the museum.”

At Common Cause, attorney Arn Pearson said, “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period. If any other federal judge was doing that, he could face disciplinary action.”

The plot thickens. Thomas was the lone dissenter in 2006 when the Project on Fair Representation challenged federal voting rights laws. The project is sponsored by the American Enterprise Institute, and Crow is an AEI trustee.

In 2001, AEI presented Thomas with a bust of Abraham Lincoln valued at $15,000 and praised his judicial performance at an awards gala. The suit was litigated - pro bono - by a former clerk for Thomas.

Such a cozy circle.

MSNBC TV host Rachel Maddow - expanding on the Times piece - listed eight cases in which Thomas voted in favor of positions taken by organizations tied to Crow.

According to the Times, Crow has hosted Thomas aboard his 161-foot yacht and his private jet, at his California retreat and at his 105-acre summer estate in the Adirondacks.

Crow also reportedly contributed $500,000 to the founding of Liberty Central, a tea party-affiliated group launched by Virginia Thomas, wife of the justice.

Justices Anthony M. Kennedy and Stephen G. Breyer testified before Congress in April 2011 that they follow the code of conduct. Is that good enough?

More than 100 law professors urged Congress last February 2011 to impose the ethics code on Supreme Court justices. Legislation to address this concern was introduced.

Deeper systemic issues fuel the potential for abuse. Two clauses in the Constitution align to allow the possibility for justices to be appointed by a minority of voters.

Because a president is not subject to the popular vote, s/he can be elected by a minority. A majority of senators must confirm judicial nominees, but such a majority vote does not necessarily represent the majority of the people because each state - no matter how low their population -- is represented by the same number of senators. A justice can be confirmed by senators representing the 26 least populous states.

President Bush did not win the popular election in 2000, but he won the majority in 2004 before nominating Roberts and Justice Samuel A. Alito Jr. President Clinton never won a majority in either election because of third-party candidates; he nominated Breyer and Justice Ruth Bader Ginsburg.

The framers of the Constitution invited trouble by creating lifetime tenure for the justices’ positions. Of course, this provision should preclude the justices from ruling on cases in which they might later have ties to some of the parties involved.

The framers might have expected that only honorable people would reach such a lofty position after struggling through law school, practicing law for many years and earning the trust of the president and the majority of the Senate.

Thomas would hardly be the first to blow this theory apart. Justice Abe Fortas resigned in 1969 because he accepted money from a convicted financier while on the court. Justice James Clark McReynolds - a racist, sexist and anti-Semite - snubbed Justice Louis Brandeis, the first Jew to join the court.

Besides, plenty of judges retire while still in their professional prime and use their past connections to return to the practice of law or find other jobs.

The system must be reconsidered. The American people, through our political leaders, must ensure that only the best people are elevated to the court and keep them honest.