-By John Dean
June 28, 2011- For good reason, there has been serious hand-wringing over what to do about the ethical lapses of U.S. Supreme Court Justice Clarence Thomas. The fact that Supreme Court justices are exempt from the code of ethical conduct which applies to the rest of the federal judiciary; the problem of bringing a sitting justice before the Congress to question the conduct of a constitutional co-equal; the reality that justices cannot easily defend themselves against news media charges; the defiant, in-your-face posture of Thomas—the list goes on but it need not. There is clear precedent for how to deal with the justice. Thomas could be forced off the bench.
As the associate deputy attorney general in President Richard M. Nixon’s Department of Justice, I was there when Assistant Attorney General William Rehnquist outlined how to remove a Supreme Court justice who had engaged in conduct not quite as troublesome as that of Thomas. Rehnquist, of course, would later become chief justice of the United States. His memorandum providing the process for the Department of Justice to proceed against then Supreme Court Justice Abe Fortas remains solid precedent and the way to deal with Clarence Thomas. But before looking at the solution, I should explain the problem.
To begin with, there is absolutely no question in my mind that Thomas lied his way onto the Supreme Court in 1991 when he denied Anita Hill’s charges that he had sexually harassed her and some of his other subordinates. If anyone needs proof, please examine the reporting of Jane Mayer and Jill Abramson, authors of “Strange Justice: The Selling of Clarence Thomas,” which sets forth the case against Thomas with an abundance of clear and convincing evidence (not to mention the evidence corroborating Hill that Joe Biden, then chairman of the Senate Judiciary Committee, withheld).
The way Thomas reached the court is important for two reasons. First, there was once a time when those sitting on our highest bench would never do anything to tarnish the court, and this factors into both his conduct and the chances of his removal. Secondly, Thomas’ deceit during his confirmation hearing has overshadowed all of his behavior since he arrived on the court.
Thomas fooled no one when he dissembled in 1991. Those who embrace his consistently radical conservative voting record often overlook how he arrived on the high court, and a few supporters and admirers even defend him by diminishing the significance of his persistently questionable behavior. Those who are unhappy with Thomas as a justice, not to mention his aggressive polarization of the court, find that he has simply lived down to his standards as a scoundrel and fabulist. No one is particularly surprised that his behavior as a justice just keeps sinking lower and lower, constantly reaching new bottoms. (For a catalog that samples Thomas’ failings, see The Reid Report.)
Many Supreme Court justices enjoy the company of well-off social friends. Few justices have significant wealth, and since their pay is so low relative to their stature, almost all live quite modestly. There is nothing wrong with justices having a few friends who can occasionally provide an especially pleasant social interlude while seeking nothing other than making life a bit more pleasant for these dedicated public servants. In fact, I have friends who socialize with justices. I can assure you they are all extremely sensitive to the nature of these relationships and would never exploit the friendships.
Thomas and his friends have no such compunctions. Maybe the way Thomas arrived on the court explains why he operates at the outer edges of court propriety, if not beyond. Maybe because he is held in such low esteem by so many on the bench and at the bar he simply does not care. As his book showed, he is a bitter man. The Washington Post noted that he used his 2007 memoir, “My Grandfather’s Son,” to “settle scores,” while “scathingly condemning the media, the Democratic senators who opposed his nomination to the Supreme Court, and the ‘mob’ of liberal elites and activist groups that he says desecrated his life.” In short, he sees himself as a victim, so his actions may be his own private revenge. However, for those who have followed his career, as I have, it was not surprising to see the latest revelation in The New York Times, which reports again about Thomas’ “friendship” with Harlan Crow, a Dallas real estate magnate and big-time benefactor of conservative causes.
This relationship is deeply conflicted because Crow’s financial and political interests are frequently before the Supreme Court. Nonetheless, Crow continues to bestow endless gifts and favors on Thomas or fund matters of serious interest to the justice, such as giving Thomas a $19,000 Bible that once belonged to Frederick Douglass, donating $175,000 to finance a library project dedicated to Thomas in Savannah, Ga., and, as was recently revealed, providing not less than $2.8 million to acquire and preserve a crab and oyster cannery near Thomas’ childhood home in Pinpoint, Ga., a project that is operating under Thomas’ supervision.