Scandal Peaks for Clarence Thomas as the Right Tries to Explain It All Away

secret acceptance of gifts — "lavish" was the media's most frequent adjective — has prompted questions of whether others of the justices have similarly been enjoying the largesse of those hopeful of influencing the Court. Three weeks after the first ProPublica story, The New York Times burst forth with a 5,000 word piece that spanned two full pages of the broadsheet's print edition about George Mason University's law school cozying up to a number of the justices by paying for their travel and accommodations abroad.

But before a closer look at that, ProPublica followed up with a second story that a Harlan Crow company had in 2014 bought a house and two nearby empty lots in Savannah from Thomas's family for $133,363 in which the justice held a one-third interest, had then paid for improvements, and since let Thomas's mother go on living in the house rent free. Mr. Crow said his intention is to "one day create a public museum at the Thomas home dedicated to telling the story of our nation’s second Black Supreme Court justice". Nine years have passed with no mention of that having transpired.

Conservative voices chose to ignore the ethics issue of Thomas taking in so much of value compounded by his failure for decades to disclose it. Hospitality received from friends may not require fastidious reporting, but reporting of sale of real estate property is mandatory. That seemed of no moment to Senator Lindsey Graham (R-SC) who charged that Democrats "cherry-pick" these disclosure omissions in “an unseemly effort” to “delegitimize the Roberts court.”

This is "the latest Democratic attempt to smear" Thomas, writes Hugo Gurdon, editor-in-chief of the conservative Washington Examiner magazine. He calls it the Democrats' racism "at least as ugly as you find on the right". Right-wing racism is "confined to the fringes", but on the left racism "has been woven into the fabric of what it means to be a Democrat", Gurdon says.

In a Senate hearing, Mike Lee (R-Ut) blasted Democrats and their “thuggish shakedown”. Thomas should seemingly be absolved of the obligations imposed on all other judges in the land because he is a...

“principled jurist…one of our greatest American success stories…a humble citizen who rose from poverty in the segregated south...one of the most influential jurists our country has ever known”.

Well to the right Ann Coulter. who has a law degree, defended the justice, writing…

“Having failed to destroy Clarence Thomas 32 years ago with preposterous sexual harassment charges (disbelieved at the time by 60% of Americans), now the left is resorting to attacking the ethics of a man vastly more honorable than the collection of degenerates reviling him.”

ProPublica published a third investigative report that Harlan Crow had paid two years of private high school tuition in 2006 and 2008 for Thomas's grand nephew totaling roughly $100,000. The Thomases had taken custody of the boy at age six as his legal guardian and for a dozen years raised him as their son while his father was in prison on a drug charge.

On the right the argument is that disclosure was not required. The definition of a "dependent child" under the Ethics in Government Act is limited to a "son, daughter, stepson or stepdaughter." But the Thomases made the boy their legal ward. That's still not a son says those on the right.

But the tuition payments are effective income for the Thomases in the form of money that they didn't have to pay themselves. And Mr. Thomas did declare $5,000 contributed by another friend toward the tuition cost, which says that Thomas did recognize such contributions as something to be disclosed but didn't do so with Mr. Crow's far more substantial payments.

Mark Paoletta, a biographer and friend of Thomas who served in the Trump administration, slammed reporting of the tuition payments as “despicable”. What is "supposedly scandalous" is Thomas and wife…

"devoting twelve years of their lives to taking in and caring for a beloved child—who was not their own—just as Justice Thomas’s grandparents had done for him."

No doubt about it — an admirable act of compassion. But all of this evades the central question of why has a Texas billionaire heaped so much benefaction on a Supreme Court justice, offering up only the rubric of "friend", and why has Clarence Thomas chosen to keep it all hidden?

On the same day of the tuition story, The Washington Post revealed that Leonard Leo, described as a "conservative activist" who is co-chairman of the board of the Federalist Society, secretly channeled tens of thousands of dollars to Clarence Thomas's wife Virginia — Ginni, as she is known. A little over a decade ago, he had Kellyanne Conway, who would become an ardent Trump spokeswoman, use her polling company to bill a non-profit group Leo advises, Judicial Education Project, and then pass the money to Ms. Thomas, making certain that the paperwork made "No mention of Ginni, of course".

The Post tracked $80,000 paid by Conway to Ginni's firm Liberty Consulting from June 2011 to June 2012 with another $20,000 to come. The money was to compensate Ginni for uncertain consulting work. But Ginni is known for extreme rightwing advocacy and before the Court was the case in which the conservative justices would in the following year strip the 1965 Voting Rights Act of provisions that had restricted mostly southern states from making voting law changes without prior approval of the Justice Department. Leo and his Federalist Society are known for handing Trump a list of arch-conservative judges to appoint, which Trump followed without further vetting.

In a series of emails and texts, Ms. Thomas was exposed imploring Trump Chief-of-Staff Mark Meadows to do everything in his power to overturn Joe Biden's 2020 election victory and hand Donald Trump a second term as president. We reported on this in this story citing as example a heated message Ginni sent to Meadows inspired by a QAnon conspiracy theory she ascribed to:

“Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military".

The most fervid effort to grant Thomas total absolution is at The Wall Street Journal where James Taranto, an editor who almost never writes, wrote half a dozen opinion pieces in the space of a few days. Two of them, each taking up most of a page of the broadsheet-size print edition, were devoted entirely to only the sale of the property in Savannah.
Harlan Crow's The Michaela Rose

In none of his pieces is there any mention of years of the Thomases luxurious vacation trips aboard Crow's 162 foot yacht nor flights on the Bombardier Global 5000 jet seemingly placed at Mr. Thomas's disposal.

Taranto chose to attack rival media as the best way to deflect attention from Thomas's years of failing to disclose what he had received from Mr. Crow. He finds a mistake where ProPublica doesn't realize there was another house in a different Georgia county and calls it…

"a travesty of journalism, and I am increasingly disinclined to credit them with practicing journalism at all."

He sweeps in The Washington Post as well, saying they both "commit comically incompetent journalism."

Thomas's failure to disclose is "an honest mistake" for Taranto. He didn't think he needed to report because he sold at a loss. Nowhere in the disclosure instructions is there that exemption. Rather, the rule is base on proceeds of a sale; any amount more than $1,000 must be reported. So the loss-sale excuse is a fabrication. Taranto decides...

"One may be tempted to think that of all people a judge should know what the law says. But that’s a nonsensical standard."

For a Supreme Court justice, whose work entails deciphering the complexity of laws and case history, the federal financial disclosure rules are apparently too abstruse for Thomas to comprehend.

In response to ProPublica's story, Justice Thomas issued a statement that…

“Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”

"Early in my tenure" could mean as far back as 1991 when, nominated by President George H. W. Bush, he was sworn in. What sort of questions might he have asked of colleagues back then? Should he report someone picking up the check at a restaurant? A weekend as guest at a friend's house? No need, he says he was told.

Justice Thomas has been trading off that advice for 32 years during which the kindness of one doting billionaire friend has ballooned to extraordinary gifts such as a 2019 nine-day vacation in Indonesia where Crow's superyacht, with its crew and private chef, awaited for touring the islands. In another trip on the yacht, the Thomases toured New Zealand 10 years ago. Thomas saw no need to report any of it.

Politico then reported at end-April that, beginning in 2015, Neil Gorsuch was
Justice Neil Gorsuch
for two years looking for a buyer of a 40 acre tract in Granby, Colorado, that he co-owned with two others. Nine days after his Supreme Court confirmation, the CEO of major law firm Greenberg Traurig bought the property. Gorsuch reported that his share of the sale netted him between $250,001 and $500,000 (disclosure forms show ranges), but he entered no description of the asset, nor that it was real estate, and he left the name of the buyer blank.

Since Gorsuch's investiture on the Court, Greenberg Traurig has represented clients or filed amicus briefs in at least 22 cases before the High Court. Gorsuch has sided eight times with Greenberg Traurig clients and four times against. Those on the right are hopping mad, pointing out that the buyer never even met Gorsuch. That the sale was handled through intermediaries doesn't mean Gorsuch doesn't know where the money came from.

Fox prime-time host Laura Ingraham, another who has a law degree, decried "the bogus ethics accusations against my old boss Clarence Thomas. They're ridiculous. Well now they're coming for Neil Gorsuch."

Insider (the renamed BusinessInsider) broke the story that a whistleblower at a law firm where Jane Roberts, the wife of Chief Justice John Roberts, was a headhunter, says she made the extraordinary sum of over $10 million in fees for placing attorneys with corporations and law firms between 2007 and 2014, according to internal documents. Some of the client firms have had business before the Court.

The Journal once again: In a full-page piece by sometime longer-form opinion writer Barton Swaim which he titles, "Harlan Crow Is ‘Collateral Damage’ of a Smear Campaign", after seconding Taranto — as The Journal digs ever deeper into condoning gifts to federal officials — Swaim tells us he went to Texas to meet Harlan Crow Turns out he is passionate about history with a bookshelf of some 5,000 volumes and quotations of Tacitus, Madison and de Tocqueville engraved on his walls, whereas the leftwing media chooses only to notice "Clarence Thomas' Pal Harlan Crow Collects Nazi Artifacts".

Contrary to the 1776 faction that seeks to polish our history, Crow says he believes, "if you're going to tell the story of anything and in this case it’s America, you have to do it warts and all". As a philanthropist he wants to encourage the civil exchange of ideas but "civil discourse has broken down". He tells Swaim,

“Look, I’m a moderate Republican. Some of my other Republican friends think I’m too squishy, but I am what I am. I’m kind of a traditional George Bush type Republican. That’s my belief system. So I do what I believe. I support a number of moderate Democrats, too…This is not terribly important, but I’m moderately pro-choice, a first-trimester guy…So when people say I want to influence people on the court, I would say that if I were trying to do that, which I’m not, I’m not doing a very good job.”

telling the senate to bugger off

The ProPublica revelations arrived in the midst of rising clamor that the High Court is subject to no code of conduct and has resisted the whole principle that any rules should be imposed on the nine solons of the Court.

The Democratic-controlled Senate Judiciary Committee opened a hearing on the 2nd day of May on the subject of the lack of any ethics code and the abuse of its absence. Chairman Dick Durbin invited Chief Justice Roberts to attend but Roberts refused,
Chief Justice John Roberts
instead sending a letter, signed by all the justices, expressing his concern that "testifying to this Committee would somehow infringe on the separation of powers or threaten judicial independence".

He cited numerous sources the jurists consult on ethics questions and that there is therefore no need for a code of conduct. In the face of the multiple instances of compromised ethics that brought about the committee hearing , it was hardly a persuasive argument. Roughly a decade ago, Roberts rebuffed the same recommendation as proposed now, to formally adopt the code that guides all lower federal judges. In the face of multiple failures to disclose gifts of considerable value, the chief justice defended the "exceptional integrity and experience" of his fellow jurists and said it was a "misconception" that they do not follow the same set of ethical principles as other judges.

Roberts seemed even to threaten that the Court might question whether Congress has the right of oversight:."The Court has never addressed whether Congress may impose those requirements on the Supreme Court.”

Republicans on the committee stayed clear of the ethics conflicts that have come to light, most notably Clarence Thomas's years of accepting a billionaire's gifts of fully-paid foreign vacations, instead using their time in the hearings to accuse Democrats of trying to derail the Court's conservative majority. Senator Lindsey Graham (R-SC), the committee’s ranking member intoned:

“We’re going to push back as hard as we can and tell the American people the truth about what’s going on. This is not about making the court better. This is about destroying a conservative court. It will not work.”

Senator John Kennedy (R-La) had this take:

“Today’s hearing is an excuse to sling more mud at an institution that some—not all—some Democrats don’t like because they can’t control it 100 percent of the time.”

Conservative media is voicing the same meme. Fox News Laura Ingraham, who clerked for Thomas, would have us think there are no ethics violations:

"The bogus ethics accusations against my old boss Clarence Thomas. They're ridiculous. Well now they're coming for Neil Gorsuch."

Her guest one night, Christopher Landau, ambassador to Mexico under Trump, voiced the same denial:

[I]nstead of taking on the court on the merits … they are seizing on these kind of attacks to try to delegitimize the court and demonize justices with these bogus ethics charges that really don't pass the straight face test".

The Times Sunday edition at the end of April told the story of how George Mason's law school, located in northern Virginia near D.C. and renamed after Antonin Scalia, has ambitions of becoming a conservative counterpart to Yale and Harvard. To do so it has been developing relationships with the Supreme Court's conservative justices.

Justices Gorsuch, Thomas, and Kavanaugh have all been given teaching posts at Scalia Law at "top pay" and are even accorded personal services, such as house-hunting for Gorsuch. Teaching is one of the few activities permitted to justices for making extra money, and justices have long done so at other universities.

The law school takes the currying of the justices a sizeable step further, though, in a program that funds, typically, two-week teaching trips abroad. Amanda Frost, who teaches legal ethics at the University of Virginia School of Law, commented that, “Some of this sounds like all-expenses-paid vacations, with a little teaching thrown in.” The school sent Gorsuch to Iceland and Italy and Kavanaugh to the U.K., for example, for which the school makes all arrangements for travel and accommodations — such as "an 'aristocratic,' antique-filled apartment in the heart of the old town" for Gorsuch's stay in Padua, Italy. He even got to choose which city.

The school has also reached out to the liberal side of the Court to some degree: Justice Kagan went on the Iceland trip as well. Justice Sotomayor spoke on a Scalia Law panel.

It's not just Scalia Law. So do other law schools pay to send the justices abroad to conferences and teaching assignments . The Times cites similar perquisites paid for by other schools: Justices Ginsburg and Sotomayor sent to a 2019 conference in Portugal by New York University; Justice Alito to teach in Berlin and Paris by Tulane in 2016; Justices Alito to Rome and Kavanaugh to London by Notre Dame.

Scalia Law's engagement with Supreme Court justices enhances the school's prestige, attracts top-tier students, and above all the close connection to the justices raises money. Despite a prohibition against the jurists being involved in any money-raising endeavor, Scalia Law has pressed against that to the limit. The celebration of the renaming of the law school raised $750,000 that day in 2016. Was it because seven justices were induced to attend?

(The Times got hold of some of the information via a public-records request, with many documents held back or redacted.)

A dinner was held on the second anniversary of the renaming event. The Times says the school pushed for months for justices to come. With those junkets to Europe in the offing, how could they refuse? So “Five Supreme Court Justices Came to Scalia Law School Last Week", the dean was able to boast after the event in an email to Scalia Law friends and colleagues. Beforehand, "court officials repeatedly pushed for media blackouts and tightly controlled announcements", ruling against photos for "any endorsement, promotional or fund-raising purposes”. Nevertheless, the event raised $1.4 million for the law school.

Justice Samuel Alito expressed his outrage at criticism of the Court in an interview given to — once again — James Taranto and hard-right attorney David Rivkin, a conservative media commentator who seems to have an open invitation to The Journal's opinion pages. Alito finds “this type of concerted attack on the court and on individual justices” unfair and bemoans that "nobody, practically nobody, is defending us".

He seems curiously blindered from grasping that, as sole author of Dobbs that overturned the precedent of 50-years of rights to abortion because he found the justices who preceded him "egregiously wrong", he would infuriate women in the millions.

Asked about “ethics” accusations against Justice Thomas in "partisan" media, Alito said, “I’ll stay away from that”, but that again fails to recognize that the suspicion of corruption in Thomas accepting valuable gifts is very much a part of the public's diminished view of the legitimacy of the Court.

Criticism of the Court “undermines confidence in the government,” says Alito without irony, unmindful that it is the actions of the Court that have inspired the criticism.

The Supreme Court has long been the national institution most respected by the American public along with the military. An NPR/PBS NewsHour/Marist poll last month recorded that Americans' confidence in the Court has declined to 37%.