Friday, April 14, 2023

Opinion Today: There’s a precedent for dealing with Clarence Thomas’s behavior

So why have Republicans been so silent?

By Chris Conway

Senior Staff Editor, Opinion

Last fall, Gallup reported that trust in the Supreme Court had hit a record low, with just 47 percent of Americans saying they had "a great deal" or "a fair amount" of trust in the federal judiciary. That was a drop of 20 percentage points from two years earlier. As for the job the Supreme Court was doing, 58 percent said they disapproved.

"Trust in many U.S. institutions has declined in recent years," Jeffrey Jones, a senior editor at Gallup, noted, "but the loss of faith in the Supreme Court is especially notable, given the high levels of trust it has enjoyed historically."

The recent news about Supreme Court Justice Clarence Thomas is unlikely to improve the situation. ProPublica reported last week that for over 20 years, Thomas and his wife, Ginni, a far-right activist who pushed to have the 2020 presidential election results overturned, have been treated to luxury vacations by the Republican megadonor Harlan Crow.

Thomas, who, like the other members of the court, has lifetime tenure, reported none of this; he says he "was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable." That, in part, at least, seems to be debatable. But Thomas's view underscores the old saying in Washington that the real scandal isn't what's illegal, but what's legal.

(On Thursday, ProPublica reported that in 2014, one of Crow's companies bought three properties in Savannah, Ga., for $133,363 from three co-owners — Thomas, his mother and the family of Thomas' late brother. Thomas never disclosed the sale; four ethics experts told ProPublica that appeared to violate a federal disclosure law passed in the wake of the Watergate scandal.)

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As the Times columnist Jamelle Bouie observed: "Corruption is much more than a cartoonish quid pro quo, where cash changes hands and the state is used for private gain. Corruption, more often than not, looks like an ordinary relationship, even a friendship. It is perks and benefits freely given to a powerful friend. It is expensive gifts and tokens of appreciation between those friends, except that one holds office and the other wants to influence its ideological course."

To Bouie, this episode makes clear that "The Supreme Court is not going to police itself. The only remedy to the problem of the court's corruption — to say nothing of its power — is to subject it to the same checks and limits we associate with the other branches."

Indeed, as a Times editorial points out, "Justice Thomas's indulgence is just the latest and most egregious example of a weakness demonstrated by virtually every member of the court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts and junkets — both costly and modest — from people and groups who find it useful to be close to nine of the most powerful people in the United States."

Nor is this the first time a Supreme Court justice has been caught up in scandal, as Adam Cohen, a former editorial writer at The Times, noted in a guest essay. In the mid-1960s, Justice Abe Fortas ran into trouble when it was revealed that he had accepted $20,000 a year for life to join a foundation begun by a wealthy businessman who was investigated by the Justice Department for financial improprieties and eventually convicted of securities violations.

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By then, Fortas, a Democrat, had resigned from the foundation and returned the $20,000. But when the relationship emerged several years later, he was forced to resign from the court. What was different then than now is that lawmakers in both parties urged him to step aside. As one of his most stalwart Democratic supporters in the Senate put it, wrote Cohen, what mattered most of all was not party or ideology but that "the confidence of our citizenry in the federal judiciary must be preserved."

Cohen argues that Thomas's conduct "has been far more egregious in scale than Fortas's." But Republicans, Cohen noted, have been "deafeningly silent" since the ProPublica report.

"If our body politic were as healthy today as it was in 1969," Cohen wrote, "leaders of both parties would be demanding Justice Thomas's resignation, and he would be as worried about being impeached by a Republican House as Fortas was by a Democratic one."

The Times columnist Gail Collins wondered in a conversation with her fellow columnist Bret Stephens whether there is "any chance of getting him tossed off the court, huh? Huh?"

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Not likely. Stephens argued the rules didn't require Thomas to disclose vacations paid for by others. And it would be "a bad precedent" to try to toss him off the court "lest some liberal justices turn out to have rich and generous friends, too."

"Of course," Stephens added, "I say all this as someone who's generally a fan of Justice Thomas, even if I'm not as conservative as he is. If people want to criticize him, it should be for his votes, not his vacations."

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Pool photo by Ken Cedeno

JAMELLE BOUIE

Clarence Thomas Is as Free as Ever to Treat His Seat Like a Winning Lottery Ticket

This is not how a republic should work.

By Jamelle Bouie

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Drew Angerer/Getty Images

GUEST ESSAY

54 Years Ago, a Supreme Court Justice Was Forced to Quit for Behavior Arguably Less Egregious Than Thomas's

Lawmakers from both parties urged him to resign.

By Adam Cohen

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Illustration by The New York Times; photographs by Evelyn Hockstein/Reuters and S. Greg Panosian/Getty

THE EDITORIAL BOARD

The Highest Court Has the Government's Lowest Ethical Standards

An ethics office at the Supreme Court, similar to ethics committees in the House and the Senate, should be established.

By The Editorial Board

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Damon Winter/The New York Times

THE CONVERSATION

Clarence Thomas Decided Against the Staycation

Meanwhile, Dobbs continues to shape the political landscape.

By Gail Collins and Bret Stephens

Here's what we're focusing on today:

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