Is Clarence Thomas unfit to serve on the Supreme Court?

OPINION - Justice Thomas must resign if America is to begin to restore integrity to the judiciary...

Is U.S. Supreme Court Justice Clarence Thomas fit to serve on the nation’s highest judicial body? Recent revelations suggest the judge is ethically challenged, and it may be time for him to step down.

A recent article in the New York Times describes Thomas’s dealings with Harlan Crow, a Texas real-estate mogul and financier of right-wing causes to the tune of $5 million. Mr. Crow is a friend of the Bush family who contributed $100,000 to Swift Boat Veterans for Truth, the group that was formed to attack the Vietnam war record of 2004 Democratic presidential candidate John Kerry. Crow also gave $500,000 to an organization that ran advertisements supporting the confirmation of President George W. Bush’s Supreme Court nominees.

Apparently, Clarence Thomas was not left out of Harlan Crow’s philanthropic endeavors, as the justice has received favors from Crow over the years. Thomas reportedly solicited funds from Crow to fund the judge’s pet project, including a museum in his native Pin Point, Georgia. Mr. Crow gave Thomas a bible worth $19,000 that once belonged to Frederick Douglass. When Crow was a trustee at the American Enterprise Institute, the organization gave Thomas a $15,000 bust of Abraham Lincoln in 2001.

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And according to the Times, Crow gave Ginni Thomas, wife of the associate justice, $500,000 in seed money to start a Tea Party group called Liberty Central — which fought to repeal President Obama’s health insurance reform law. According to Ginni Thomas, that law is unconstitutional. And it is foreseeable that as a member of the Supreme Court, Justice Thomas would be placed in a position to rule on the unconstitutionality of said law. That is, unless he decided to recuse himself, and there’s no indication he would do such a thing.

In addition, Crow donated $175,000 to a library in honor of Justice Thomas in Savannah, Georgia. Moreover, the Thomases were entertained at two of Crow’s estates, along with prominent Republican insiders, and had access to his 161-foot yacht and private jet.

Now, if Justice Thomas had been a lawmaker rather than a judge, the whole thing would smell of influence peddling or bribery. And Crow would play the role of lobbyist, or influence peddler. No cases involving Crow and his financial interests have gone before the Supreme Court, but tomorrow could be a different story. Plus, it is completely plausible that Harlan Crow delivered these favors to Clarence and Ginni out of the goodness of his heart, expecting nothing in return, just as it is possible that Mr. Crow is a politically neutral player with no interest in the direction of the Court.

Did Thomas break any rules? Good question. The code of ethics for federal judges — which states that “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose,” for fear that donors would seek favorable treatment from a judge or feel pressured to give money — does not apply to the Supreme Court.

However, the justices on the high court follow the code and use it for guidance. Further, any federal judge in a district or appellate court who was found guilty of soliciting funds for a pet project would face some sort of discipline, such as ceasing to hold the title of federal judge. Further, all judges are required to disclose gifts they receive and conflicts of interest. The New York Times points out that as of 2004, Thomas had received $42,200 in gifts over the prior six years, more than any other justice. Yet, he hasn’t reported any gifts since then, despite the evidence that he has received gifts more recently. The real issue here is whether a judge can accept money and favors from anyone, much less wealthy political operatives, and maintain a sense of impartiality. The question is whether Justice Thomas can take the money and run, and hold onto his integrity, or what little he has left.

This is not the first time that Thomas has had an ethics cloud hanging over his head. As Credo Action points out, Thomas and his colleague on the bench, Antonin Scalia, participated in one of a series of high-level, closed door meetings of Tea Party groups sponsored by the billionaire Koch brothers. The meetings served as political fundraising events to “change the balance of power in Congress,” and recruit “captains of industry” to bankroll the “conservative infrastructure of front groups, political campaigns, think tanks and media outlets.”

As a result, legal observers suggest that due to a conflict of interest, Thomas and Scalia should have recused themselves from the Citizens United case, which allows for the unlimited influence of money in elections. To add to the conflicts of interest, in 1991 the Citizens United Foundation spent $100,000 in ads to support Thomas’s nomination and attack senators who opposed him.

In addition, Thomas failed to report his wife’s income and financial interests for years, including the $686,589 she earned between 2003 and 2007 working for the Heritage Foundation, a right-wing think tank with a large stake in matters before the court.

If Thomas were to resign over the appearance of a conflict of interest or financial impropriety, he would not be the first Supreme Court justice to go there.

In 1969, Justice Abe Fortas, a Lyndon Johnson appointee, resigned from the Supreme Court for the same problems plaguing Thomas over forty years later. In Fortas’ case, he accepted $15,000 to run seminars at American University, and accepted a $20,000 per year consulting fee from a stock speculator. As a result, Fortas, who had been a candidate for Chief Justice, ultimately lost his seat on the Court — arguably for less than Thomas.

It is ironic that Clarence Thomas — the man who rose to the highest level of judicial power based on a Horatio Alger, pull-yourself-up-by-the-bootstraps narrative — would not exist but for the endorsement of powerful sponsors. When his supporters claimed that Thomas was the most qualified person for the job, they engaged in the most cynical move of turning affirmative action on its head. Arguably, Thomas was not even the most qualified black conservative for the Supreme Court. Sexual harassment allegations marred his candidacy for the Court two decades ago, but his cheerleaders asked that we give him a chance. Sitting in silence from the bench, he has disappointed ever since. And now, it appears that he has a price tag. He continues to depend on benefactors for his personal enrichment.

Justice Thomas must resign if America is to begin to restore integrity to the judiciary. The Citizens United decision has exacerbated the corrupting influence of money in politics, which at its worst resembles a system of legalized bribery. But the courts are supposed to be different. In theory, judges require an air of impartiality. A pay-to-play justice system that operates solely for the benefit of the wealthy and the connected is a threat to us all.

Meanwhile, in a 5-4 decision, Thomas and his colleagues just threw out a class-action sex discrimination suit against Walmart.

For the sake of the country and the judiciary, Thomas should step down, given that a Republican Congress would likely not impeach him. This would allow the president to replace him with a judge of integrity — preferably a woman — who can begin to fill the shoes of the late great Thurgood Marshall.