Ethics fireball Justice Clarence Thomas continues to bring the Supreme Court into disrepute this week. What once was a quiet hum of corruption, ignored in the DC bubble and waved away as beneath notice by journalists, is now a blinking, neon LIVE, NUDE JUDGES sign outside the Court. No justice in the modern era engaged in such public profiteering off of his office, not only through the “normal” channels of spousal employment and plum overseas teaching gigs, but by accepting millions of dollars of luxury vacations and even allowing his benefactor to buy his mother’s house.
Perhaps we should caveat this by saying that we have no idea what Justice Antonin Scalia took in the way of perks — it was considered rude to report on it then.
No longer, thanks to Justice Thomas.
And in that vein, congressional Democrats are finally starting to grow a spine (or a least a couple of vertebrae). In a May 8 letter to Harlan Crow, Thomas’s benefactor, Senate Judiciary Chair Dick Durbin requested an accounting of the billionaire’s largesse “as part of the Senate Judiciary Committee’s ongoing efforts to craft legislation strengthening the ethical rules and standards that apply to the Justices of the Supreme Court.”
“Recent investigative reporting has identified multiple instances in which you or entities you own or control have made payments, purchased real estate, or provided gifts, travel, or other items of value to Supreme Court Justice Clarence Thomas and members of his family,” he wrote. “Many of these gifts, transactions, and items of value had not been previously disclosed by Justice Thomas, in apparent contravention of the Supreme Court’s April 25, 2023 ‘Statement on Ethics Principles and Practices’ which claimed that Justices since 1991 ‘have followed’ the financial disclosure requirements provided in the Judicial Conference Regulations, and other applicable obligations.”
Crow responded Monday in a letter marked “CONFIDENTIAL” but published by Slate’s Mark Joseph Stern.
Long story short? Crow’s lawyers at Gibson Dunn told Durbin to eat shit:
After careful consideration, we do not believe the Committee has the authority to investigate Mr. Crow’s personal friendship with Justice Clarence Thomas. Most importantly, Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court. Doing so would exceed Congress’s Article I authority and violate basic separation of powers principles. That precludes the Committee from pursuing an investigation in support of such legislation.
No one is investigating Crow’s “personal friendships.” If Crow and Thomas were in a bowling league every Tuesday, no one would give a damn about it. The issue is the half a million dollars of vacations Crow buys Thomas every year. Plus the house he bought from Thomas’s mother — where she lives rent-free for life — and the tuition he paid for Thomas’s adopted child. Also the money he donated to organizations that pay Thomas’s wife Ginni to natter incoherently about the dangers of Marxist Democrats who hate America.
Crow goes on to lecture Durbin with all the sophistication of a Schoolhouse Rock cartoon — except that Schoolhouse Rock was usually historically accurate, if reduced to a level the average third grader could groove to.
“‘The scope of the Committee’s investigative authority is necessarily limited by the bounds of Congress’s legislative authority,” his lawyers write, tut-tutting that “because a Supreme Court ethics code is beyond Congress’s power to legislate, the Committee necessarily lacks authority to conduct an investigation for the purpose of crafting such a law.”
“Unlike the lower federal courts, the Supreme Court was established by the Constitution, not by an act of Congress,” he sniffs condescendingly, adding that the only powers granted to Congress with respect to the high Court involve impeachment or jurisdiction.
As legal commentator Chris Geidner points out, this is rather too cute by half. Even if you take as correct the proposition that Congress cannot impose a code of ethics on the Supreme Court, it can and does mandate financial disclosures by the justices of their assets, income, and gifts. Indeed, it is those very laws which Thomas is alleged to have violated when he failed to report the gifts from Crow.
In a very real sense, Crow seems to have confused his own powers with that of the justice he sponsors: He will tell Congress what the law is, and they will listen.
As justification, he gestures vaguely in the direction of the Supreme Court’s holding in Trump v. Mazars as imposing “heightened standards” for congressional investigations involving “personal information implicat[ing] weighty concerns regarding the separation of powers.” In point of fact, Mazars involved subpoenas of the documents of a sitting president’s business and tax records, not gifts made by a private citizen to a federal judge. It’s not a rule of general applicability to defeat congressional investigations — FFS, one of the four Mazars factors is whether the request will impede the president in his official duties. Although if you’re trying to make the case that a megalomaniacal billionaire thinks he’s co-terminus with a jurist, arguing that your personal gifts to him implicate separation of powers issues is a pretty good way to do it.
Naturally, the letter ends with the mandatory WITCH HUNT language:
It is clear that the Committee’s investigation is part of a larger campaign to target and intimidate Justice Thomas and unearth what the Committee apparently believes will be embarrassing details of the Justice’s personal life. Those goals do not authorize the Committee to conduct a congressional ethics investigation of Justice Thomas.
The two middle fingers are implied. And now we find out whether Durbin wants to spend the political capital to subpoena this asshole and get into a legal battle over something that’s already appeared in the pages of every newspaper in the country.
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