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Published on Sunday, March 20, 2011 by CommonDreams.org

Judicial Ethics and Justice Thomas

by Christopher Brauchli

Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. . . .They are entitled to a little representation, aren’t they, and a little chance . . . .
— Roman Hruska defending Nixon’s proposed appointment of G. Harrold Carswell to the Supreme Court

The trouble with being a Justice on the United States Supreme Court is people expect you to be above reproach. And as Justice Clarence Thomas would be the first to tell you, that’s not easy, especially when you’re Justice Thomas. The last few weeks have been especially challenging for the Justice.

In February the New York Times reported that Common Cause had raised questions about a seminar that Justices Thomas and Scalia had attended in 2008. It was sponsored by the Koch brothers, two men whose devotion to and support of countless worthy non-profits is matched only by their devotion to and support of right wing causes. It is their latter devotion that has propelled them into the forefront of American politics in recent months, thanks in part to an article in The New Yorker describing their activities. Although Supreme Court Justices and lower court judges often lecture at events sponsored by organizations with pronounced points of view, what makes the Koch gatherings unique is that the proceedings are closed to the media and the public and there is no public disclosure of what Justices Scalia or Thomas said to the group. What made Justice Thomas’s appearance most significant, since there is no way of knowing what he said, was that since it took place three years ago he was unable to remember how much time he’d spent at the conference.

When the issue was first raised a court spokesperson said Justice Thomas had made what was referred to as a “drop by.” In his financial disclosure statement for 2008, however, Justice Thomas said he had been reimbursed by the Federalist Society for “four days of transportation, meals and accommodations.” He certainly didn’t mean to deceive anyone by the inconsistencies. The discrepancy can be explained by the fact that a Supreme Court Justice has more important things to do than to try to keep track of where he has been and for how long. Nor did it occur to him that if it was a four-day all expense paid trip he should treat it as a gift as was suggested by Common Cause. When the inconsistency was pointed out neither the court, the Justice or the Koch brothers had any comment to explain the discrepancy.

Of more consequence was the story in the Los Angeles Times by Jonathan Turley. He discloses that the Justice has trouble remembering who paid what to whom for what. According to this story, Common Cause, an entity that tries to help Justice Thomas comply with the law, found that in Justice Thomas’s disclosure statements that he is required to file annually, he inadvertently overlooked a significant amount of income. It is the sort of mistake any of us could make since it only pertains to money. According to the research done by Common Cause, for many years Justice Thomas forgot that his wife, Virginia, had received hundreds of thousands of dollars of income from assorted conservative organizations. In completing the annual disclosure form he said that his wife has no “non-investment income” in excess of $1,000. In fact, during the period in question she had almost $1 million in non-investment income. (It is possible that he was distracted when filling out the form because he was trying to think of something intelligent to say during oral argument before the court to show that he was paying attention. According to the New York Times, in the last five years Justice Thomas has not asked one question of any of the parties appearing before the court.) When his failure to disclose his wife’s income became public, he wrote to the court and said that he left out the information about his wife’s income because of a “misunderstanding of the filing instructions.” Anyone who has ever filled out a government form can appreciate the confusion that inheres in such a form, except for Stephen Gillers of New York University Law School. He unkindly said of Justice Thomas’s failure to report his wife’s income: “It wasn’t a miscalculation, he simply omitted his wife’s source of income for six years. . . . It could not have been an oversight.”

Justice Thomas is a sensitive man and can give as good as he gets. In a speech to the Federalist Society he suggested its members should be on their guard. He said that those who were raising issues about his failure to disclose his wife’s income and the possibility that its sources presented him with a conflict of interest in certain cases considered by the court, were undermining the court. He didn’t suggest that Justices who fail to obey the law also undermine the Court. He probably thinks that since he sits on the highest court in the land he is above the law. His conduct proves he’s right.

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