Questions About Clarence Thomas Cry for Answers
Justice Clarence Thomas was suspected of lying under oath during his contentious confirmation hearing. For that reason, and because of his knee-jerk ideological decisions, he's never earned the respect of a large segment of the public or bar.
Lillian McEwen, Thomas' former girlfriend, who'd not been called to testify at his Senate confirmation hearing when he was nominated for the Supreme Court, recently alleged that Thomas was obsessed with pornography and constantly talked about it inappropriately at work - when he headed the federal agency charged with enforcing sexual harassment policies.
Had McEwen testified, Thomas might not be on the court today. He was given a pass because his main detractor, law professor Anita Hill, was not believed.
Nineteen years later, Hill asked the authorities to investigate a bizarre telephone message received from Virginia Thomas, asking Hill to "apologize" to her husband. Virginia Thomas' well-known far-right political activities have refocused media and congressional attention on Justice Thomas himself.
In 2009, Mrs. Thomas, a self-proclaimed "entrepreneur," founded Liberty Central, which she boasts will soon be "bigger than the tea party." There she attacks the "tyranny of President Obama," claims "Democrats are hurting America's core founding principles," and on Oct. 21 criticized legally challenged federal health care legislation, which is expected to reach Justice Thomas and the Supreme Court.
Mrs. Thomas took $550,000 from two anonymous donors to start Liberty Central and hasn't revealed their identities or if they may have cases before the Supreme Court. Because any monies paid to her by Liberty Central become Thomas family income, this presents an ethical problem for the judge.
How will the public ever know if he recuses himself in those cases where Liberty Central's donors have an interest? Since such family income is anonymously donated, the arrangement has the ethical standing of a paper bag full of bills surreptitiously handed to Thomas in a dark alley.
District and Appeals Court judges are governed by the American Bar Association's Model Code of Conduct, but the Supreme Court is not. Yet the ABA's admonition to all judges remains a strong one: "A judge shall not accept any gifts ... if acceptance ... would appear to a reasonable person to undermine the judge's independence or impartiality."
Mrs. Thomas has every First Amendment right to promote her political opinions. But doing it in this manner makes Judge Thomas vulnerable to charges of favoritism and that his vote has been corrupted. Thomas consistently offends the political left, but this controversial arrangement offends conservative judicial purists on the right as well. All Americans want Supreme Court justices to be above reproach
Ironically, Thomas joined the 5-4 majority in the Citizens United case, which allows foreign contributors, large corporations and the super-rich to donate anonymously at the same time his wife was establishing an organization that benefits from just such secret funding. Thomas' separate opinion called for "an end to all donor disclosures."
Supreme Court justices are appointed for life. Only Samuel Chase, appointed by President George Washington, was impeached by Jeffersonian Republicans controlling the Senate. The trial established that America's judiciary should not engage in partisan politics and affirmed judicial independence. Chase was acquitted. And until the 5-4 Gore v. Bush decision, justices have carefully avoided appearances of blatant partisanship.
The racist John Birch Society sponsored "Impeach Earl Warren" billboards across America for years after court-ordered school desegregation. Congress refused to impeach Chief Justice Warren. Associate Justice Abe Fortas, appointed by Lyndon Johnson, was threatened with impeachment for taking a $20,000 annual retainer from a former client, Louis Wolfson. Fortas resigned even though he'd recused himself in all court matters involving Wolfson.
Compare Justice Fortas' situation with that of Justice Thomas. Fortas recused himself to avoid charges of judicial favoritism, but no one will ever know if Thomas shows favoritism to a Liberty Central donor because their names remain conveniently secret from the public.
Justice William O. Douglas' 1953 granting of a stay of execution in the Rosenberg atomic secrets case caused Congress to consider and then reject his impeachment. In 1970, House Minority Leader Gerald Ford, at President Richard Nixon's urging, sought to impeach Douglas for his liberal opinions, his defense of the "filthy" film "I Am Curious (Yellow)," ties to the Parvin Foundation and acceptance of small sums from liberal magazines.
The House of Representatives didn't buy Ford's arguments; no public vote was taken, and Douglas became the longest-serving justice in history at 36 years.
Were "straight arrow" Republican Jerry Ford still in Congress, he'd be demanding an inquiry into the unseemly arrangements of Thomas, his wife and Liberty Central.
Paul R. Dunn lives in Pinehurst. Contact him at firstname.lastname@example.org.
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