Justice Reviews History, Skirts Thomas Disputes

The Supreme Court fulfills its vital role in preserving democracy by earning public confidence, as Justice Stephen Breyer told a packed hall last week in Washington, DC. But his lecture and book, Making Our Democracy Work, glossed over current controversies, such as the "Virginia and Clarence ThoStephen Breyermas Bought By Billionaires" ad released this week.

My purpose here is to illustrate how one of the top ambassadors for the court responds to specific allegations of corruption that are seldom raised officially in Washington because the court has such power. So, this column focuses more on Breyer's Oct. 27 responses than on the evidence, which is best available via the links below.

Fresh from a National Press Club lecture the previous night where retired federal judge Lillian McEwen said Justice  Thomas should resign on grounds of corruption, I asked Breyer during Q&A how the court decides on its responses to inquiries. I identified myself as reporting on this year's allegations of bribery and false statement by Thomas, and said I've received no comment from Thomas. Breyer, at left, responded that he guides the court's spokeswoman when a matter pertains to himself, and has seven volumes of ethics books and also trusted ethics advisers that he consults on difficult issues. When a follow-up questioner asked Breyer about abortion, he ducked by joking, "We've already had a reporter gently try to bring up something," and smiling as he waved his hands at his side, as if to shoo away a beggar.

Breyer's inclination at the forum to gloss over current controversy is one way to preserve the court's stature. Another has been his 2010 book, a national best-seller that was strongly praised by the New York Times, Washington Post and other establishment opinion-leaders and information gatekeepers. But not everyone was bedazzled. McEwen, author of DC Unmasked and Undressed this year, a former law professor and my guest at this event, told me it seemed like a warmed-over speech for a civics class, not one for a sophisticated DC audience.

Clarence and Virginia Thomas...Bought by BillionairesThe lecture did not address the revelations by Common Cause and others this year of false statements by Thomas in his sworn annual disclosure statements to hide an estimated $1.6 million in reportable income and gifts for him and his wife, Virginia. Forty-six House Democrats  have called for a House impeachment probe.

Protect our Elections.org is a progressive group that says it has been working with the FBI since July on an investigation of Thomas and his wife. This week published the ad above, headlined, "Clarence and Virginia Thomas: Bought By Billionaires." The text is about David Koch, at far right, and Harlan Crow, shown between the Thomas couple. It says:

Virginia, Harlan, Clarence and David have been having a good laugh at our expense. How much longer will we let this go on? America’s citizens have had it with people in power who violate the law. That includes Clarence Thomas, who has used his position as a Supreme Court Justice to flout the law and enrich himself, his wife and their cronies through corrupt backroom deals with billionaires Harlan Crow, and Charles and David Koch.

Lillian McEwenThis was the kind of controversy for which I sought response from those named in the ad and their representatives. So far, the best I can get are a few quotes recycled from other news reports. The Supreme Court's spokeswoman told one reporter that the Thomas false statements on his judicial disclosure forms were "inadvertent." Thomas responded obliquely to the contrvoersy by telling a conservative audience in February that he and his wife would continue to fight for liberty, as I reported earlier this week in Thomas Must Resign, Says Former Judge, Lover. I'll update this report if the Thomas, the court, Crow or the Koch brothers respond to my comment requests.

ProtectOurElections.org amplifies its allegations in a 12-page memo it says it shared in July with the FBI. On Oct. 26, it filmed my interview of McEwen, above, entitled, Clarence Thomas—perjurer, tax cheat, fanatic, party operative—has GOT TO GO, declares Judge Lillian McEwen (his former lover). The allegations against Thomas and relevant law are reflected also in the request by congressional Democrats for a Thomas impeachment inquiry, as described in Democrats Ramp Up Calls For Ethics Probe Of Clarence Thomas.

On Oct. 5, Common Cause President and CEO Bob Edgar testified to the Senate Judiciary Committee that it must initiate reform, saying:

There is increasing evidence that some members of the Roberts Court feel unconstrained by the ethical rules that apply to every other member of the federal judiciary. They feel free, for example, to hear and decide cases in which they have a real or perceived personal or a financial interest, attend political meetings and fundraisers, and publicly align themselves with political factions.

The Code of Conduct for U.S. Judges cautions every other member of the federal bench against such activities. Judges who violate it are subject to sanctions and their decisions – if tainted by conflicts of interest – can be reversed. But some Supreme Court justices apparently think they are above all that, and their ethical decisions – and lapses – are currently beyond review.

Common Cause believes that’s wrong. The highest court in America should not have the lowest standards.

McEwen, a U.S. Securities and Exchange Commission judge for 12 years before her retirement five years ago, said in her Press Club lecture that every judge knows that he or she must fill out financial disclosure forms honestly under pain of prosecution for false statement. Therefore, she concluded, Thomas illustrated a criminal mentality by 13 years of hiding spousal income and gifts after filling out the forms accurately for his first years on the bench.

She described Thomas further as a "best friend" when they dated for five years in the early 1980s. But she said he lost his way in the mid-1980s and so she decided to break up. She added that no one has contradicted or even rebutted any part of her memoir, which is primarily about her youth and early adulthood in Washington, DC. However, she describes positive and negative attributes of Thomas, including his keen interest in pornography in ways that he specifically denied during his 1991 Senate confirmation hearing, thus counteracting Anita Hill's sexual harassment testimony.

More generally, the 20th anniversary this month of the 52-48 Senate confirmation of Thomas has seen many reflections about the impact of on the nation of his lifetime appointment. Our Oct. 27 column provided an extensive appendix of commentary pro and con. The month's developments illustrated also that public approval of the Supreme Court is sinking, according to a recent poll showing just a 46 percent rating.Stephen Breyer

Breyer, right, intended his lecture and bStephen Breyer Bookook for audiences of non-lawyers to sustain support for the court's work. His emphasis is on the key cases, primarily from the distant past. The Democratic former appellate judge and Harvard Law School professor also chronicles his dissents from the jurisprudence of "originalists" who ostensibly try imagine how the Founding Founders would react to a case. The best known are his fellow associate justices Clarence Thomas and Antonin Scalia. Breyer emphasizes that they work closely together despite differences. "We get on pretty well," he said of his experience since his appointment in 1994. "I've never heard one judge make a slighting remark" he said of their conferences, and there have been "no words raised in anger."

Beyond the court's collegiality, he emphasized that reasonable minds can disagree on cases complex enough to reach the Supreme Court. One example he cited was when national security conflicts with privacy or First Amendment speech rights. "The tough cases," he said, "are not right against wrong, but right against right."

However, these are tough times. Aside from widespread economic disaster not seen in this country since the 1930s, the Supreme Court has a highly visible partisan split. Five Republicans and four Democrats often vote differently on major decisions. One was the Citizens United decision in 2010, which upended federal election donation limits on corporations and unions. Beyer, congruent with his erudite and genteel approach, downplayed the significance, saying the 5-4 votes are only on about 20 to 25 per cent of cases.

Yet when they affect game-changing decisions such as the credibility of federal elections or major legislation such as the Obama health care law the stage is set for drama, at the minimum. Add to that the sex, race, abortion, religion and corruption factors swirling around the crucial fifth vote, that of Clarence Thomas, and it is clear that the show has just started.

Breyer stresses that the justices work affably together despite differences. "We get on pretty well," he said of his experience since his appointment in 1994. "I've never heard one judge make a slighting remark" he said of their conferences, and there have been "no words raised in anger." Beyond the court's collegiality, he emphasized that reasonable minds can disagree on cases complex enough to reach the Supreme Court. One example he cited in his vigorous and entertaining discourse was when national security conflicts with privacy or First Amendment speech rights. "The tough cases," he said, "are not right against wrong, but right against right."

However, hard times are here. Aside from the kind of widespread economic disaster not seen in this country since the 1930s, the Supreme Court has a rare, highly visible partisan split, five Republicans and four Democrats, who often vote differently on major decisions in essence on party lines. One was the Citizens United decision in 2010, which upended federal election donation limits on corporations and unions. This enabled Thomas to reward the right-wing plaintiff Citizens United, which had run an ad campaign in 1991 against Senate Democrats helping achieve his confirmation, as I noted earlier this week.

The big decisions threaten to change outcomes of federal elections or such major legislation as the Obama health care law. Let's add to that the incendiary race, sex, abortion, religion, death penalty and corruption factors swirling around the votes of Clarence Thomas.
Breyer, congruent with his erudite and genteel approach, downplayed the significance of these 5-4 votes, saying they are only on about 20 to 25 per cent of cases. Breyer suggests the public be happy that our society is not resolving our differences by violence outside a legal framework.

But what kind of "law" protects the law-givers from scrutiny in a democracy?  The courageous Lillian McEwen is among those who have dared to say that Thomas perjured himself to get on the court and has disgraced himself since by threatening the well-being of most in the public by selling out his vote to his rich backers.

"He's been rewarding his friends," she said at the Press Club, "and punishing his enemies." Her word is hardly the final one, of course, and in fact most law professors, reporters and others in our timid watchdog groups can sense the professional danger for themselves in pursuing these kinds of inquiries.

And so it's up to the rest of us to support those authorities willing to get to the facts about the allegations of corruption. Doubtless in ways uncomfortable for those in power, this advances the goal of what Breyer himself described as the court's noble mission: "Making our democracy work."

 


Contact the author This email address is being protected from spambots. You need JavaScript enabled to view it.

Listed here are excerpts of relevant columns:

Salon, Our ethically permissive Supreme Court: Conservative justices wink at their own conflicts of interest, Ronald Goldfarb, Nov. 1, 2011. As Common Cause and Alliance for Justice have documented, the past activities of Justices Clarence Thomas, Samuel Alito and Antonin Scalia raise questions about the propriety of some of their extracurricular experiences. In September, the two groups, along with more than 100 law professors and ethicists, called upon Congress to require the nine justices of the high court to apply to themselves the existing ethical code of conduct rules covering all other federal judges, and to require them to publicly provide valid reasons rejecting recusal for alleged conflicts of interests. As the professors pointed out, the Supreme Court now has no policy on recusal. The justices simply decide for themselves if they have a conflict of interest. At a time when all government officials are held in diminishing repute, one would think the Supreme Court would not need to be told that it, of all institutions, is not beyond the law and is subject to meticulous standards over which it alone should not be the exclusive decision-maker.

Associated Press / Huffington Post, Herman Cain-Clarence Thomas Comparisons Made By GOP Base Amid Sexual Harassment Allegations, Shannon McCaffrey, Nov. 1, 2011. Conservatives rallied around Herman Cain as he battles sexual harassment allegations, likening the attacks on the Republican presidential contender to what they describe as the "high-tech lynching" of another prominent black Republican: Supreme Court Justice Clarence Thomas. The forceful early reaction to the Cain firestorm – fueled by racially charged rhetoric – suggests the Georgia businessman's attempt to cast himself as a victim of the media and liberals is, so far, paying dividends among his conservative Republican base, who will hold considerable sway in selecting the party's nominee. But the accusations against Cain, an untested newcomer on the political scene, may give more moderate GOP voters pause and could cause would-be donors to shy away even as Cain works to capitalize on his rising poll numbers.

OpEd News, Glenn Greenwald; With Liberty and Justice for Some... and How the Occupy Movement Could Change Things, Rob Kall, Nov. 1, 2011. I talk with Glenn about his new book, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful, and about the Occupy movement.

Daily Censored, Retired Judge, Advocacy Group Seek Clarence Thomas Indictment, Andrew Kreig, Nov. 1, 2011.

News From Underground, Clarence Thomas—perjurer, tax cheat, fanatic, party operative—has GOT TO GO, declares Judge Lillian McEwen (his former lover), Andrew Kreig Interview of Lillian McEwen,Edited by Mark Crispin Miller, Oct. 26, 2011.

Justice Integrity Project, Thomas Must Resign, Says Former Judge, Lover, Andrew Kreig, Oct. 26, 2011. Author and former Senate Judiciary Committee counsel Lillian McEwen, whose memoir this year describes a five-year romantic relationship in the 1980s with Supreme Court Justice Clarence Thomas, delivers a lecture Oct. 26 calling for his resignation on grounds of corruption that is dangerous to the public.  “The mask he has worn for so long has slipped during the past 20 years to reveal dishonesty, greed, and abuse of the public trust,” she told me in an exclusive interview before her talk at the National Press Club. “Fueled by self-hatred and resentment, Justice Thomas has allowed himself to be purchased.” Shorter version with more reader comments: OpEd News, Thomas Must Resign, Says Former Judge, Lover, Andrew Kreig, Oct. 26, 2011.

Protect our Elections.org: Clarence and Virginia Thomas: Bought By Billionaires, Oct. 25, 2011. Virginia, Harlan, Clarence and David have been having a good laugh at our expense. How much longer will we let this go on? America’s citizens have had it with people in power who violate the law. That includes Clarence Thomas who has used his position as a Supreme Court Justice to flout the law and enrich himself, his wife and their cronies through corrupt backroom deals with billionaires Harlan Crow, and Charles and David Koch.

Huffington Post, A Question of Integrity Hangs Over the U.S. Supreme Court, Nan Aron, Oct. 24, 2011. This is going to be a big year for the Supreme Court. This election cycle is going to remind everyone of the effects of its infamous Citizens United decision, as vast sums of corporate money flood the electoral system. The blockbuster healthcare case could be heard and decided right in the middle of the presidential campaign. Big cases are on the Court's docket that deal with civil liberties, personal privacy, consumer rights, the environment, the rights of citizens to use the courts to seek justice, and, of course, corporate power.

John YooWall Street Journal, Twenty Years of Justice Thomas, John Yoo, left, a former Thomas clerk, Oct. 22, 2011. This weekend marks the 20th anniversary of Clarence Thomas's appointment to the Supreme Court. In his first two decades on the bench, Justice Thomas has established himself as the original Constitution's greatest defender against elite efforts at social engineering. His stances for limited government and individual freedom make him the left's lightning rod and the tea party's intellectual godfather. And he is only halfway through the 40 years he may sit on the high court.

OpEd News, Judging the Judge: Citizens Must Unite After 20 Years of Clarence Thomas, Andrew Kreig, Oct. 19, 2011. The Clarence Thomas era on the court began 20 years ago with a fraud upon the public at his White House "swearing in" and has expanded into ongoing infamy.

Reinbach Observer, The Case Against Clarence Thomas, Andrew Reinbach, Oct. 19, 2011. When is official Washington going to do more than talk about Clarence Thomas? After all the issues raised this year about the Associate Justice – including apparent perjury on his financial disclosure forms, his intriguing connections to the Koch Brothers and to Harlan Crow, and apparent bribery – you’d think the Justice himself would be calling for an official investigation just to clear his name. But no.

Washington Post, Enjoying basic loyalty, despite dip in popularity, Robert Barnes, Oct. 17, 2011. Gallup has announced that only 46 percent of Americans approve of the institution, a drop of 5 percentage points in the past year and 15 points in the past two years. “The same forces that have caused Americans to lose trust in the presidency and Congress appear to be affecting the way Americans view the Supreme Court,” Gallup said in a report accompanying the poll. “In addition to the public’s lower level of trust in the judicial branch of the federal government today than in recent years, the Supreme Court’s approval ratings — like those of Congress and the president — are in the lower range historically.”  Newt Gingrich says the Supreme Court is so far off base that its decisions would be practically non grata in his White House. “I would instruct the national security official in a Gingrich administration to ignore the Supreme Court on issues of national security,” he told the conservatives gathering at the Values Voters Summit.

Associated Press / Washington Post, Activist Cornel West among 19 people arrested for protesting on steps of Supreme Court, Oct. 16, 2011. Author, commentator, civil rights activist and Princeton University professor Cornel West has been arrested while protesting on the steps of the Supreme Court about corporate influence in politics. A Supreme Court spokeswoman says 19 people were arrested Sunday afternoon after they refused to leave the grounds of the court.

C-SPAN, Anita Hill 20 Years Later, Oct. 15, 2011  (Video). An all-day conference titled "Sex, Power and Speaking Truth: Anita Hill 20 Years Later" was on the Hunter campus in New York City. Anita Hill, the woman who accused Supreme Court Justice Clarence Thomas of sexual harassment during his Senate confirmation hearings in 1991, was keynote speaker.

Guardian, Clarence Thomas's conservatism: The first 20 years, Jason Farago, Oct. 13, 2011.  The enigmatic judge keeps a low profile; yet, time is very much on the side of the Supreme Court's most reactionary justice

Justice Integrity Project, Common Cause CEO Ramps Up Call for Thomas Probe, Andrew Kreig, Oct. 6, 2011. Common Cause President and CEO Bob Edgar Oct. 6 ramped up his group's call for a Justice Department probe of Supreme Court Associate Justice Clarence Thomas on ethics issues. Speaking on the Washington Update weekly radio show I cohost, Edgar cited new evidence to argue that federal judicial authorities should refer the matter to the DOJ.

Anita HillWashington Post, The legacy of the Clarence Thomas-Anita Hill hearings, Ruth Marcus, Oct. 6, 2011.Even now, with the healing distance of two decades, the subject of Anita Hill and Clarence Thomas retains its power to provoke and divide.  It was 20 years ago this month that Hill’s allegations of sexual harassment surfaced, threatening to derail Thomas’s imminent confirmation to the Supreme Court.

Huffington Post, Democrats Ramp Up Calls For Ethics Probe Of Clarence Thomas, Jennifer Bendery, Oct. 5, 2011. House Democrats are ratcheting up the pressure for a formal investigation into Supreme Court Justice Clarence Thomas for failing to disclose information relating to his wife's earnings -- as much as $1.6 million over the past 13 years -- on his annual financial disclosure forms. House Rules Committee ranking member Louise Slaughter (D-N.Y.) and Rep. Earl Blumenauer (D-Ore.) sent a letter to the House Judiciary Committee calling for hearings "on the pattern of potential ethical lapses" by Thomas, who, after years of filing his financial forms properly, stopped disclosing his wife Ginny's employment status every year between 1997 and 2011. During that time, the letter states, his wife made at least $1.6 million, based on reports from outside groups.  "Public records clearly demonstrate that Justice Thomas has failed to accurately disclose information concerning the income and employment status of his wife, as required by law," reads the letter to House Judiciary Chairman Lamar Smith (R-Texas) and ranking member John Conyers (D-Mich.). "In addition, news reports indicate that Justice Thomas may have also failed to report gifts from wealthy supporters and inappropriately solicited donations for favored non-profit organizations."