Musings On The Clarence Thomas Affair and Insideous, Unavoidable, Rationalization Eleven

If you are good enough and valuable enough, do you deserve one of these?

If you are good enough and valuable enough, do you deserve one of these?

A recent—and off-topic—comment caused me to begin thinking about “The King’s Pass,” #11 on the Ethics Alarms Rationalization hit parade,and perhaps the most perplexing of them all. The commenter referenced the 2010 discovery that Supreme Court Justice Clarence Thomas had inexplicably neglected to mention his activist wife’s annual income on his annual financial disclosure filings, meaning that he had filed a false affidavit and violated the law. Thomas claimed that he had made a careless mistake—for five years—and the matter was allowed to drop except for the angry agitating of the Anti-Clarence Thomas Furies, who are constantly searching for any way to get a conservative black justice off the Supreme Court short of assassination.

The episode had left a bad taste in my mouth, and I was happy to be reminded of it, bad mouth tastes being essential to triggering ethics alarms. I went back to read my post on the matter, and sure enough, I had followed the principle of rejecting The King’s Pass, and asserted that Thomas should be punished appropriately and formally…but that really ducked the question. Lawyers have lost their licenses to practice for single episodes of swearing to false information when it was far more obvious that a mistake had been made than in Thomas’s case, as when a hapless Maryland lawyer carelessly signed a legal document that had misrecorded  his address. The logic of this no-tolerance ruling was that a lawyer, above all people, should never swear to a falsehood, and that doing so, even once, was a serious breach of duty calling into question his fitness to practice law. I think the penalty for this particular act was excessive—it is cited locally as a cautionary tale—but I agree with its underlying principle, which should apply with even more vigor when the lawyer in question is a judge, and not merely a judge, but a Supreme Court Justice.

The King’s Pass is described on the Rationalization List thusly..

11. The King’s Pass, The Star Syndrome, or “What Will We Do Without Him?”

One will often hear unethical behavior excused because the person involved is so important, so accomplished, and has done such great things for so many people that we should look the other way, just this once. This is a terribly dangerous mindset, because celebrities and powerful public figures come to depend on it. Their achievements, in their own minds and those of their supporters and fans, have earned them a more lenient ethical standard. This pass for bad behavior is as insidious as it is pervasive, and should be recognized and rejected when ever it raises its slimy head.  In fact, the more respectable and accomplished an individual is, the more damage he or she can do through unethical conduct, because such individuals engender great trust. Thus the corrupting influence on the individual of The King’s Pass leads to the corruption of other others through…

11. (a) “I deserve this!” or “Just this once!”

Especially common to the hero, the leader, the founder, the admired and the justly acclaimed is the variation on the Kings Pass that causes individuals who know better to convince themselves that their years of public service, virtue and sacrifice for the good of others entitle them to just a little unethical indulgence that would be impermissible if engaged in by a lesser accomplished individual. When caught and threatened with consequences, the practitioner of this rationalization will be indignant and wounded, saying, “With everything I’ve done, and all the good I’ve accomplished for others, you would hold this against me?” The correct answer to this is “We are very grateful for your past service, but yes.

I still hold to my conviction that the King’s Pass is unethical, and that the justification for it  a rationalization for unequal treatment, privilege, and bias. This requires an acceptance of the principle that ethical considerations should trump non-ethical ones except in the most desperate and unique circumstances, where we would be metaphorically cutting off our nose to spite our faces. Would we really want to court-martial a critically important general during wartime for sexual harassment? Eisenhower refused to court-martial General Patton for slapping a wounded soldier, an act that would have shipped most officers home. Was that ethical leadership by Ike, given his primary duty of winning the war, and Patton’s value as a means of achieving it? (My father, who served under Patton, always argued that Eisenhower should have removed him from command.)

I will argue until the day I visit the Big Ethicist in the Sky that removing Clinton from office for lying under oath, engineering a cover-up and obstructing justice would have been the correct course, because his actions were intentional and calculated, undermined respect for the office and implicated his trustworthiness. Would it be good ethics and good policy to impeach a Supreme Court Justice for a (pick one) clerical error, mind-boggling carelessness or a useless, meaningless and pointless lie? Maybe. Maybe the message, the lesson and the cultural integrity is worth the loss. Maybe.

The justice system encourages the King’s Pass by allowing an individual’s value to the community and past good (or bad ) deeds be factored into sentencing. I am not sure this old and thoroughly accepted practice is right or good for society, even though in a particular case it may have clear societal benefits. Clarence Darrow, as I think I have noted here before, almost certainly bribed two jurors in a 1911; he was caught red-handed. Yet he escaped conviction by arguing to the jury, essentially, that they knew he was a champion of the weak and underprivileged: would society be better off with him in jail, or better served by having him fighting the good fight? They chose not to convict him, and because of that example of jury nullification, Darrow fought for science and freedom of thought in the Scopes Trial, and made his  powerful argument against the death penalty while saving two young men from the gallows in the Leopold and Loeb case, and in every way made that Kings Pass, which was his not guilty verdict was, seem like a wise decision.

Consequentialism: that it worked out well—so well that Darrow’s near brush with professional annihilation was forgotten—doesn’t mean it was right.  (And who knows if he bribed other jurors?) I keep coming back to the unavoidable conclusion that the King’s Pass makes equitable treatment and standards illusory, and encourages arrogance, “ethics balancing” (you can balance a bad act with a good one, and have a clean slate), racism, class advantage, bias, corruption and privilege that rots public trust.  Celebrities, elected officials, national heroes and leaders, no matter how valuable they are when they are doing the right things, have to pay the same price as anyone else when they do wrong…and part of the wrong is breaching their duty to set a positive example, meaning that they deserve harsher punishment, not leniency.

If we believe this ethical principle, however, and reject the King’s Pass completely, it means that we must be willing to live with the practical results of it: suspending the star quarterback before the big game, sacking the management whiz who is turning the company around, impeaching the perjuring and popular President.


21 thoughts on “Musings On The Clarence Thomas Affair and Insideous, Unavoidable, Rationalization Eleven

          • I’m not excusing her, but I’m not going to give Thomas a pass either. Attention to detail is attorney’s calling card, and Supreme Court justices should be held to the highest standard. Any omission on a form should be presumed to be intentional.

  1. As a judge, he is required to uphold the law to the best of his abilities and make sure he creates an ethical and lawful culture around him. As a Supreme Court justice, he has endangered his ability to rule on cases. How will we be able to trust his opinions?

    Five years is no mistake. He should be remove from the bench and should never be allowed to return to a courtroom except to be put before a jury.

    Sorry for any mistakes. Typing this up on my phone is a pain.

    • Joshua,

      Would your decision also apply to the current president or any future president, member of Congress, or the judiciary who is also bound by the cannons of legal ethics as a lawyer who willfully misleads (lies) or inadvertently leaves out a material piece of information the he/she knew or should have known would have a negative political outcome?

        • I concur. Hell yes has to be my answer. It is the only thing that will stop the cycle. These are the people who craft, enact, and uphold our laws. They must be trustworthy, ethical, and lawful.

  2. “But Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, said such an infraction was unlikely to result in a penalty. Although unfamiliar with the complaint about Thomas’ forms, Lubet said failure to disclose spousal income “is not a crime of any sort, but there is a potential civil penalty” for failing to follow the rules. He added: “I am not aware of a single case of a judge being penalized simply for this.

  3. I could say “sure, seems reasonable” if Thomas neglected to file those reports one year. Several years in a row seems quite fishy.

    But his written decision in cases like Bowles v Russell are more disturbing to me than what his wife brings for her political activities. Regardless of her political activities, I am sure that Justice Thomas will continue to make horrible rulings on the bench.

    • Oh, come on. That was a classic “rules are rules” decision. I know the left side of the spectrum feels that all rules should be waived every time they result in hardship, but deadlines are deadlines, and if you don’t enforce them according to whim, then they aren’t deadlines, are they?

      I can see a legitimate disagreement with Thomas’s opinion (which was the majority, so it isn’t just him), but it cannot be called objectively horrible or wrongly reasoned.

      • I don’t think it’s reasonable to characterize criticism of the Bowles v. Russell decision as the left “feeling that all rules should be waived every time they result in hardship.” The district court in that case–the representative of the government–gave a U.S. citizen an instruction that was either fraudulent or erroneous. Criticizing the idea that when the government screws up, the government can still punish you for that government error is not an especially leftist idea.

        • That’s not a fair description of the holding. He wasn’t “punished,’ for one thing. He missed one deadline, got a reprieve, and the court messed up the reprieve. SCOTUS held that the 6th Circuit didn’t have jurisdiction because the appellant relied on an erroneous order. It’s a hard-ass order but not a horrible one.

          And yes, a hallmark of conservative thought is to stick to rules even when they don’t work, and liberal thought to discard rules when they don’t like the result. I didn’t say either approach is right…they are both wrong, and both right.

          • This one kind of gnawed on you after we talked about it? Me, too. It doesn’t make any sense on the face of it. Thomas has been a pretty ethical and up front sort of man as a rule. He’s certainly not unintelligent. Why this? I can only assume that there’s more to it than meets the eye. Is Justice Thomas just super protective of his wife? As Michael pointed out, no judge has ever been called on the carpet for this sort of infraction. Maybe Thomas decided to risk it to keep either his wife or some third party out of the public eye to keep the criticism he’s almost always under away from them? Just a guess, of course. You have to think along those lines as the incident is so out of character for the man.

          • He wasn’t “punished,’ for one thing. He missed one deadline, got a reprieve, and the court messed up the reprieve.

            Given the fact that he was appealing a 15-years-to-life sentence, and given that a successful appeal could have resulted in a lessening (perhaps an overturning?) of this sentence, you seem to be operating under a peculiar definition of punishment. He was unable to appeal, because the government screwed up.

            • That’s one way of looking at it. The other is that the court was within its jurisdiction to refuse to review after the deadline, and it doesn’t matter who screwed up. The Court’s job isn’t to make things right. The Courts job is to say what is within the law, and what isn’t. The Appellate Court was within its discretion to reject the appeal once 15 days were up. Life is tough.

              • Well, there actually is precedent for “exceptional circumstances,” and both the appellate court and the district court are representing the federal government. The federal government screwed up, and then the federal government representatives ruled that, because of that screw-up, they didn’t have the right to hear his case. That’s not just a situation where “life is tough.” That’s government corruption. Your logic would apply even if the government intentionally lied to the guy. Your logic would apply if a judge ordered a defendant to be jailed without access to his lawyers for 15 days. Etc. Etc. “Exceptional circumstances” matter for a reason, and there is a reason that human beings hear cases, not computers.

      • If the court says “do this by x date” it shouldn’t matter that the court was wrong. An individual should be able to expect that advice by the court should be valid.

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