Integrity is the only capital a U.S. Supreme Court justice has to spend. And it looks like Justice Clarence Thomas has spent just about all of his. The limit the constitution puts on a justice’s time in office is “good behavior.” Whatever you want to say about Justice Thomas’ behavior, it cannot be called “good.”
Congress needs to hold hearings that examine the financial dealings of Thomas and his wife Ginni. It should then use what it learns to write legislation that defines the meaning of “good behavior” for Supreme Court justices and creates a watchdog body to enforce it. That body’s ultimate sanction would be an impeachment recommendation.
The recent revelation is that, after Clarence Thomas became a justice, he was befriended by a Dallas billionaire, Harlan Crow. Crow has lavished gifts on Thomas and his wife, including a trip to vacation in Indonesia that is estimated to have cost $500,000. It was the sort of gift that is supposed to be officially reported, but Justice Thomas did not do that. It is offered as an excuse that Crow has not personally had a case in the court and it is asserted that they never discussed the court’s work.
But the rules require reporting even absent such a discussion and, in any event, Crow is an extremely active donor to politicians and to other political causes that do come before the court. To be more specific, he has served on the board of two conservative organizations that, according to Senator Sheldon Whitehouse, have been involved in 11 cases in the Supreme Court.
And, as it turns out, Clarence Thomas stands alone in defense of the right of political contributors like Crow to make secret unlimited gifts to their favored candidates. Justice Thomas has opposed the limits Congress has placed on political contributions and does not believe a potential for corruption can justify them. He advocated overruling the 1976 decision that upheld the limits and said they did not violate the First Amendment. And he opposes disclosure requirements. No other justice has agreed with Thomas. No doubt Crow cheered from the sidelines.
And this follows a report in the New Yorker last year that a D.C. lawyer who files briefs in the court paid Thomas’ wife, Ginni, $300,000 for unspecified “consulting services.” That echoes a $500,000 contribution Crow made years ago to a political outfit that paid Ginni Thomas a $120,000 salary.
These are scandals the Supreme Court does not need. The fundamental rule is that a judge is not supposed to take any gift that comes because the judge holds a judicial office. If a gift comes before a decision the giver favors, it smacks of bribery. And if it comes after the decision, it looks like a payoff. And a gift to a family member is just as wrong as a gift to the judge.
Justices are not even allowed to take fees for speeches, although expense reimbursement is allowed. In the 1960s, Justice Abe Fortas was forced to resign when it was discovered that he had been paid $20,000 – five times the cost of an Ivy League education at the time – for consulting services to a foundation set up by a former client subsequently found guilty of securities law violations.
It is easy to see why justices want extra income. Justices are paid $285,000 a year but, in the world of Washington lawyers and lobbyists, that is a relatively modest amount. Young lawyers who spend one year at the court working for a justice not only can earn that amount in their first year in a private law firm, but they may even be paid close to that amount in a signing bonus. Keeping up with the Joneses in D.C. can be expensive. That is offered as one explanation for the number of books justices have written in recent decades.
But the modesty of judicial salaries in affluent Washington is not a new phenomenon. Justice Harry Blackmun, who replaced Fortas and served on the court from 1970 to 1994, came to judging after a career as general counsel to the Mayo Clinic in Minnesota. When President Richard Nixon questioned him before appointing him to the court, Nixon asked him about his net worth. After hearing Blackmun’s answer, Nixon characterized him as a “pauper” and warned Blackmun about the temptations of the Georgetown social circuit. Nixon need not have worried. Blackmun lived in a rented apartment across the river in Arlington and drove his VW beetle to work every day. For him vacation meant spending time at a lake with friends from his days in Minnesota.
Congress needs to act because no one else can. The court has said it will not police itself and does not have the ability to police itself without setting off internal warfare. Lower court judges are in no position to police the court. When Congress acts, the standards for justices and their family members need to be higher and clearer than standards for other judges. Their integrity is of utmost importance, especially in this era of low public confidence, and the justices need to know in advance what is prohibited so they can avoid requests for recusal in individual cases. Unlike lower court judges, they cannot be replaced if they step aside.
Luther Munford is a Northsider.
