There are three matters I intended to include in Part I, but somehow failed:
1. Thomas’s wife, the hard right activist Ginni, is more of a toxic influence on Clarence that I had thought or hoped. It still doesn’t justify the Justice being accused of a conflict: as a society we simply cannot embrace the idea that husbands are responsible for the activities of their wives or vice-versa. However, Ginni’s fingerprints seem all over this mess.
2. To be clear: assuming Thomas was legally obligated to report the benefits of the vacations that did not meet the statuary exceptions for hospitality, that would not be legitimate reason to remove him. Far more serious, and in my view why he should resign, is whom he took the vacations with, as well as who paid for them. Those details are what raise the appearance of impropriety, and it is that, not the technical failure to report, that makes his conduct unforgivable in a Supreme Court Justice.
3. When the next Gallup poll regarding public trust in institutions and professions rolls around this winter, and SCOTUS, once the branch of the government held in the highest regard by the public, again sinks, Thomas will be a major reason. And if I am polled, I will vote with the disillusioned.
Now on to the rationalizations. Not only have I been dismayed at how many pundits, conservative commentators an Ethics Alarms readers have rushed to defend Justice Thomas when there really is no defense for his conduct, but it is also disturbing that none of these have produced an argument that isn’t transparently contrived. The following rationalizations on the Ethics Alarms list seem to encompass the entire thrust of the “Thomas shouldn’t resign” briefs. How depressing. Here they are, with some brief comments:
1. The Golden Rationalization, or “Everybody does it”
The fact is that everybody doesn’t “do it,” not on the Supreme Court. This is unprecedented, as far as anyone knows. The most egregious similar case would be Ruth Bader Ginsburg, who defiantly continued to hang out with her feminist pals while on the Court, especially in her later years. But they were all in public appearances, and Ginsburg was openly nominated to represent the feminist world view. Her conduct wasn’t in the best interests of the Court, but she wasn’t taking vacations funded by NARAL, either.
2. Ethics Estoppel, or “They’re Just as Bad”
No, again, no SCOTUS justice has been “just as bad.”
4. Marion Barry’s Misdirection, or “If it isn’t illegal, it’s ethical.”
I mentioned this one in Part I. SCOTUS justices are supposed to represent the epitome of judicial trustworthiness, not just ethically compliant, but ethically beyond reproach. “The appearance of impropriety” is forbidden in all judicial ethics codes, for the federal judiciary, for members of Congress and for government employees. What Thomas did is by any definition unethical. It just happens not to have a black and white rule saying so…but he knew it was wrong. That’s why he didn’t report the trips.
5. The Compliance Dodge.
This is the rationalization Thomas’ sneaky (and Barry-like) statement relied on. Now that there is a new rule in place since his last lavish trip with one of Ginny’s rich right-wing pals, he’ll follow it. But if he keeps going on trips with Crow & Cronies, he’ll still be undermining trust in SCOTUS’s objectivity and legitimacy—but that’s OK, I am told, because no formal rule is applied to him.
6. The Biblical Rationalizations
“Judge not, lest ye not be judged,” and “Let him who is without sin cast the first stone.”
8. The Trivial Trap (“No harm no foul!”)
Of course there is harm. The Court is in a precarious position where every justice needs to be above reproach. Thomas was already one of the mains reasons the Court’s integrity has been questioned.
11. The King’s Pass, The Star Syndrome, or “What Will We Do Without Him?”
This might be the main go-to rationalization. Yecchh. Because Thomas is so important to keeping those progressives from winning cases, we have to tolerate a justice who has made it impossible to believe that he decides cases on its merits. I became allergic to this reasoning when otherwise smart people–Women! Feminists!—told me that it would be wrong to impeach Bill Clinton even though he was a serial sexual harasser and possibly rapist who used his power to engineer a cover-up and lied under oath because his loss would hurt the economy.
13A The Road To Hell, or “I meant well” (“I didn’t mean any harm!”)
14. Self-validating Virtue
Thomas is an honorable man and a Supreme Court judge, so what he did couldn’t be as bad as I claim it is. I’m sure this is how Thomas views it.
19. The Perfection Diversion: “Nobody’s Perfect!” or “Everybody makes mistakes!”
There are some mistakes a public official can’t make even once. This is especially true of judges. Taking these junkets with a politically-active conservative donor is signature significance: an ethical judge won’t do it. Ever. Not even once.
19A The Insidious Confession, or “It wasn’t the best choice.”
This one comes from the desperate minimizers. Pathetic.
20. The “Just one mistake!” Fantasy
See #19 above.
22. The Comparative Virtue Excuse: “There are worse things.”
My least favorite of the rationalizations has gotten a workout here. One example,
23 A. Woody’s Excuse: “The heart wants what the heart wants”
“Aw, he works hard and just wants a nice trip with his wife that he couldn’t afford otherwise!”
24. Juror 3’s Stand (“It’s My Right!”)
Yup: Thomas has a right to party and take trips with whom ever he chooses. But he has no right to sit on the Supreme Court for life if he won’t act like a justice is obligated to act.
26. “The Favorite Child” Excuse
- What my guy did is OK, because your guy did it.
- The conduct of your guy, which I think is wrong, should set the standard of conduct for my guy, who I think is better than your guy.
- The worse your guy can behave without being criticized, the worse my guy can behave without my objecting.
- The conduct I deplored in your guy is acceptable to me in my guy, because you didn’t have the integrity to criticize it.
- It’s all right for my guy to do what your guy did, but I still think your guy is scum for doing it, and you were a hypocrite not to criticize him.
28. The Revolutionary’s Excuse: “These are not ordinary times.”
The second most frequent rationalization I’ve been reading in Thomas’s defense. It is also antithetical to the entire field of ethics.
30. The Prospective Repeal: “It’s a bad law/stupid rule”
Avoiding the appearance of impropriety is an essential rule for positions that only work when they have the public trust. That should be self-evident.
31. The Troublesome Luxury: “Ethics is a luxury we can’t afford right now”
See #28 above.
32. The Unethical Role Model: “He/She would have done the same thing”
Well, this one is always based on convenient speculation, but whomever he or she is, if they were Supreme Court justices, they would be obligated to resign too.
33. The Management Shrug: “Don’t sweat the small stuff!”
The commenter who referred to my concern over Thomas’s conduct as “pearl-clutching” was embracing this distortion. Ethics isn’t “small stuff,” and for judges, it is among the biggest stuff. A judge without impeccable ethics alarms is unqualified to judge.
38. The Miscreant’s Mulligan or “Give him/her/them/me a break!”
Nope.
41. The Evasive Tautology, or “It is what it is.”
And what it is is evidence that Thomas has undermined the Court and his own legitimacy on it.
44. The Unethical Precedent, or “It’s Not The First Time”
See #1. Yes, it is.
45. The Abuser’s License: “It’s Complicated”
50. The Apathy Defense, or “Nobody Cares.”
Yes, that’s the reflex deflection of the Unethical. Even the news media doesn’t seem to realize what’s going on here.
50A. Narcissist Ethics , or “I don’t care”
Ditto.
63. Yoo’s Rationalization or “It isn’t what it is”
Of course—the Rationalization of the 2020s.
69. John Lyly’s Rationalization, Or “All’s fair in love and war”
The Supreme Court is not relevant to war, and when it has stooped to “warfare,” like when it rubber-stamped FDR’s imprisonment of Japanese-American citizens, it endangers democracy.
Ethics Alarms 
I think you have way too many people who are far too afraid of the current government to ever agree to give the current government additional power.
I agree, Thomas’ conduct in taking these vacations is unethical. I simply cannot support your thesis that Thomas should resign when that resignation would definitely lead to a replacement that lacked any respect for the constitution. If totalitarianism is allowed to progress the results would outweigh the benefits of holding the court accountable for such behavior. Maybe this is a rationalization or maybe it is utilitarianism. I’ve been researching and haven’t decided yet.
I quote Jack himself.
https://ethicsalarms.com/2022/01/23/the-pandemic-post-i-never-wrote/
I agree, it is impossible. I don’t know if this is the sort of problem that actually applies to the “not possible” ethical argument or not. I think enough people are scared enough of the current administration to make it roughly comparable to the pandemic, but I don’t know the parameters of the “not possible” ethical justification. At this point you could apply that to just about everything that goes on. I don’t think there is much of anything that you could find consensus on right now politically. Maybe the most ethical thing for this administration to do is to do nothing from now to the end of the term. That is also impossible, though, so I don’t know where that leaves ethics.
Clarence Thomas was one of the justices who voted to uphold Trump’s 2017 travel ban, which was clearly motivated by anti-Muslim bias—in direct opposition to the principles of the first amendment—and an evolution of his initial call for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
While the policy Thomas voted to uphold did not go that far, it was transparently motivated by the same religious animus. The majority’s argument that this bigoted motivation didn’t matter, only the direct text of the executive order itself, would have applied equally to literacy tests designed to keep black people from voting.
If you’re worried that Thomas’s “resignation would definitely lead to a replacement that lacked any respect for the constitution,” there’s an argument to be made that this already describes the current state of affairs.
That is so nonsensical I’m not sure I know how to respond to it. I will try.
First of all, the constitution does not give the entire world blanket permission to travel to or immigrate to the United States.
Second of all, that ban also included several countries that are not Muslim majority countries, such as Venezuela and North Korea. The ban was, at least theoretically, aimed at banning travel from countries posing high national security risks. That can and has been debated, but national security is a thing and the religious background of the people in countries that pose national security risks is irrelevant to national security. National security does not only apply when the people who pose the risk happen to be Christian.
Third, if you want to know my opinion on the overreach of the executive branch when it comes to “national security” and the latest trend in causing international trouble…I am not even the least bit pleased with it. Both parties have basically handed war powers over to the executive branch which violates the separation of powers in the constitution. Not good. Nothing in the events of the last 20 years vis a vis national security, from either party, is good policy or constitutional so far as I am concerned.
Fourthly, you misunderstand my entire opposition to Biden selecting another Supreme Court justice. I am not concerned with a justice who leans towards supporting rightwing or leftwing policies. I am concerned with Biden appointing someone who views the constitution as “living document” that can be rewritten at will. Left and right leaning judges might have different opinions on how the constitution should be interpreted, but as long as the judges believe in following the constitution this is workable and does not pose a major threat to the people. A panel of both left and right leaning judges will pull each other back towards the center and provide checks on one another so long as they believe in the underlying principles of the constitution.
The current administration is a radical progressive administration that doesn’t believe in the constitution at all. The constitution limits their power and the administration wishes to eradicate those limits. That poses a major threat to all of the people, both left and right, whether they want to acknowledge it or not. You can list all the particular policies you want, but that isn’t what I am talking about.
And bingo again.
Thanks NP you saved me a lot of of trouble.
“ First of all, the constitution does not give the entire world blanket permission to travel to or immigrate to the United States.”
Never said it did. I made clear that the EO was unconstitutional because it was motivated by religious animus.
“Second of all, that ban also included several countries that are not Muslim majority countries, such as Venezuela and North Korea.”
Not originally it didn’t. The initial ban came in January of 2017 and only included Muslim-majority countries. The restrictions on Venezuela and NK did were not added until September, precisely so that people could point to them and say “See, it’s not about Muslims!”
“The ban was, at least theoretically, aimed at banning travel from countries posing high national security risks. That can and has been debated, but national security is a thing and the religious background of the people in countries that pose national security risks is irrelevant to national security.”
It wasn’t irrelevant to why the ban was passed, which was as a sop to Trump’s anti-Muslim base and meant to be seen as him doing as much as he could legally do to fulfill his promise of a Muslim ban during the campaign.
If it were about national security, the president would not have taken this step in defiance of the Pentagon and nearly all national security experts at the time, passing the executive order overnight, instantly causing chaos and confusion at airports domestically and internationally.
You then argue that you’re talking about the constitution, not left or right policy, when I already explained to you why Thomas and the majority were wrong on the Constitution here. Your argument that Biden can’t be trusted to appoint judges who will follow the Constitution ignores that the last three justices were put on the court by a man who frequently argued that criticism of himself was illegal, and who ended his term by trying to get his vice president to keep him in power. That you show no concern over the previous president’s unconstitutional abuses of power, his attempts to commit more, or the threat he continues to pose as he runs for president in 2024, makes me very skeptical that this isn’t about “left vs right” to you.
How do you explain the fact that the ban only included nations known to have Al Quida factions operating within their borders and not all Muslim nations. Those that were not identified by our intelligence agencies as potential threats were not banned. At the time, critics blamed him for not sanctioning Saudi Arabia because the 9/11 hijackers were Saudi nationals.
There is absolutely no evidence that religious animus was the predicate for a temporary halt to immigration “until we can figure out what is going on”. This is the smear the left used to begin “resisting” the new administration. Please stop using the claim of bigotry to support your argument.
At issue before the court at the time was does the President have the constitutional right to unilaterally ban entry through an EO. The court said he did and more than one Justice ruled he did.
“ There is absolutely no evidence that religious animus was the predicate for a temporary halt to immigration “until we can figure out what is going on.”
Sure, if you ignore the beginning of the Trump quote you provided half of—even though I already provided the other half for you—there’s no evidence of religious animus.
“I made clear that the EO was unconstitutional because it was motivated by religious animus.”
There it is: the smoking gun proof of a Trump-Deranged partisan. The standards is whether the measure could be justified on legitimate national interest grounds, and it obviously can be and could be. You, like all the other Trumpophobics, just assume he has malign motives, and confirmation bias takes over. It is exactly like the argument that he (or anyone) opposes illegal immigration or affirmative action because he’s a racist. There was (and is) a reasonable basis for restricting immigration and refugees from areas where Muslim terrorist were rife, and it was responsible to do so. What his secret motives might have been are 1st, pure speculation, and 2) irrelevant to the assessment of the policy. If Obama had done the same thing, and he should have, nobody would question it.
“There it is: the smoking gun proof of a Trump-Deranged partisan. The standards is whether the measure could be justified on legitimate national interest grounds, and it obviously can be and could be.”
As the four justices who dissented pointed out, whether a measure “could be” justified (if you ignore the transparently bigoted motive of the politicians who actually crafted the measure) is a ridiculous standard. It makes much more sense to actually evaluate the facts at hand, not to ignore them. Literacy tests “could be” justified on non-racist grounds; that does not magically transport us to a reality where they are not racist.
“You, like all the other Trumpophobics, just assume he has malign motives,”
I don’t assume them, he told the entire world his malign motives when he suggested banning all Muslim immigration during the campaign. I just refuse to forget that he did this, which you seem to resent.
“There was (and is) a reasonable basis for restricting immigration and refugees from areas where Muslim terrorist were rife, and it was responsible to do so.”
It was not responsible to do so, which is why it was so difficult to find national security experts who agreed. It’s why Trump did not even consult the State Department. Most said that the measure made Americans less safe, not more. It was certainly not responsible to pass this measure the way Trump did it. Do you not remember what that firsy night was like? That first weekend?
https://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html
“What his secret motives might have been are 1st, pure speculation,”
They weren’t secret and they’re not speculative, I gave you a direct quote from Trump where he called for a shutdown on all Muslim immigration.
Rudy Giuliani later clarified in an interview that Trump had come for him to advice on “the Muslim ban” and that Giuliani had told him that this was “the right way to do it legally.”
“There is a direct, documented connection between Trump’s call for a Muslim ban and the travel ban that he passed by executive order, and you’re ignoring the evidence for it to accuse me of just inventing motives.”
“and 2) irrelevant to the assessment of the policy.”
The five justices including Thomas on the majority agreed with you that the bigoted motive was irrelevant to the assessment of the policy if they could pretend that it was done for another reason. That is a novel view of the Constitution and in my view shows complete disrespect for the principle at the heart of the First Amendment. It enables government persecution of religion as long as you can imagine that a policy could have been made for another reason, despite all evidence to the contrary. That’s what makes the ruling ridiculous.
“If Obama had done the same thing, and he should have, nobody would question it.
He shouldn’t have–it made us not one whit safer–but of course no one would accuse him of being anti-Muslim because of it, since he had no record of anti-Muslim statements. That does not change the fact that Trump did.
“As the four justices who dissented pointed out…”
—That’s called a losing argument. If a measure can be justified, it’s justifiable. If it’s justifiable, its within the President’s power. “could be” justified
“(if you ignore the transparently bigoted motive of the politicians who actually crafted the measure)”
—you keep doing that. The measure was defensible and reasonable. Deciding that Islam is a violent religion that encourages terrorism isn’t “bigoted,” it is a fair interpretation of text, history and facts. The facts at hand suggest that at that time, the US public would be safer the fewer Muslims allowed in the country before thorough vetting and investigation. Literacy tests “could NOT be” justified on any grounds: the Constitution guaranteed all citizens a right to vote.
“You, like all the other Trumpophobics, just assume he has malign motives,”
“I don’t assume them, he told the entire world his malign motives when he suggested banning all Muslim immigration during the campaign.” That’s exactly what you’re doing. FDR’s terrible decision to lock up Japanese Americans wasn’t based on racism, it was based on fear and a felt need that draconian steps were needed to protect against what seemed like a very likely invasion at the time. Banning Muslims wouldn’t require taking rights away from citizens, and it was motivated by reasonable fear, express in overly sweeping terms. The assault on Trump often relied on treating his musings and free associations as statement of policy. Obama mused about ho it might be nice to be king. So what?
“There was (and is) a reasonable basis for restricting immigration and refugees from areas where Muslim terrorist were rife, and it was responsible to do so.”
It was not responsible to do so, which is why it was so difficult to find national security experts who agreed. It’s why Trump did not even consult the State Department.
He didn’t trust the State Department. He shouldn’t have. That the ban was botched initially is a completely different issue. Yes, the administration was consistently incompetent, careless and reckless.
So now you’ve moved the goalposts from arguing that there’s no evidence Trump was motivated by anti-Muslim animus, to arguing that anti-Muslim animus is good, actually.
Incredible.
A perfect example of “He didn’t say it, and if he did say it he didn’t mean it, and if he did mean it he was right,” a hallmark of the truly Trump-deranged: his supporters.
I’m not arguing that. The position that Muslims are just like any other religious group is unsustainable; it has a demonstrable connection to terrorism. The fact that someone is a Muslim does not make that individual dangerous or undesirable, but because of the conduct of so many members of the group they belong to, extra precautions are prudent, that’s all. The progressive approach, pure denial that places ideology, bunnies and rainbows above ugly reality, is irresponsible and dishonest—and that’s where you are. That’s your position, and, naturally, anyone who stays out of Cloud Cuckoo Land can be called a bigot.
Trump blocked travel from some Muslim countries because of a real threat of terrorists and murderous zealots slipping through an inadequate screening process. The fact that religion is a factor doesn’t make that “animus.”
This is a classic ethics conflict. For the President, the ethical consideration of protecting the public can and should win the battle over absolute religious freedom. It is, any way, a cultural issue, not a strictly religious one. Islam is a toxic, anti-woman, anti-human rights, anti-Western values-ridden culture. US policy needs to be made consistently with that, not in wilful ignorance of it.
I’m not debating the merits of Islam. Fortunately there is no “unless the religion really sucks” carve-out to the first amendment. And that’s irrelevant anyway, since the decision didn’t even analyze the first amendment issues at stake here, it just ignored them and said they didn’t matter if they could come up with an alternate reason. “The secret (not-so-secret) anti-Muslim reason was good actually” doesn’t address the constitutional error at hand here.
The religion is not what was blocked, and Trump saying what he wished he could do is not relevant to the issue. The problem is the culture in many Muslim cultures that make the likelihood of fanatics and radicals unable to commit to accepting and embracing US culture and by ideology inclined to conduct that is legally and culturally repugnant. Tell you what, ask the Boston Marathon victims and their family what this means and why it’s important. The problem is vetting: there are certainly Muslims wanting to live in a civilized country, not under sharia law, that doesn’t discriminate against women and regard non-believers as righteous targets of violence. Once that can be determined with confidence, then they are as welcome as anyone else. The wave of refugees and migrants under Trump was too substantial to allow any confidence that this could be accurately determined, thus jutifying the temporary ban.
” in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotations omitted) See also Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982) (citing Fiallo)
I also add that the 14th Amendment does not apply at all rrgarding the exclusion of aliens.
There are very few constitutional constraints against the government’s authority to exclude aliens.
“ I don’t assume them, he told the entire world his malign motives when he suggested banning all Muslim immigration during the campaign.[
To what quotation are you referring?
-Jut
Already provided: during the campaign, Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Rudy Giuliani later confirmed the obvious, that the executive order was an attempt to do this the legal way.
Is that a direct quote from Trump?
Or, is that your quote?
-Jut
It’s a direct quote from Trump, as I made perfectly clear. If you were skeptical of this you could have easily looked it up yourself. Or you could have just not suppressed the memory along with most of the right wing; it was incredibly well-publicized at the time.
https://www.cbsnews.com/amp/news/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-u-s/
Then you neerd to read about the plenary powers doctrine. Immigration policy is subject only to limited judicial review in a constiotutional challenge.
“That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.”- The Chinese Exclusion Case, 130 U.S. 581, 603 (1889)
” in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotations omitted) See also Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982) (citing Fiallo)
Bingo.
Rationalization #28 is only a rationalization if these are ordinary times. Even while the definition of the rationalization leaves an out that ensures it can never be applied – that makes it fundamentally uninformative.
Either the Founding Fathers were reacting to “non-ordinary” circumstances and were seeking to return to an “ordinary” relationship with governing powers or they weren’t and their Revolution was wholly misguided.
No time is an ordinary time, and all times are. What’s so wrong about #28 is that it has no legitimate limits. It essentially means “if you care enough about making something happen, anything goes.”
So, NP, what level of untrustworthiness and destructive effect on the ability of the the third branch of the government to do its job–which requires the trust and faith of the public in its fairness and legitimacy—would you consider unacceptable? Taking bribes? Hanging out with David Duke? I could understand this position a little if Thomas legitimately qualified for the King’s Pass, but he doesn’t. He’s an extreme ideologue rather than an open minded jurist. His statements about wanting undo Constitutional guarantees for same sex marriage and birth control are irresponsible and fuel progressive fear-mongering. He’s too old, and SCOTUS is not supposed to be like Congress, with reliable red and blue votes.
And after posting that, I just saw this: https://www.washingtonian.com/2023/04/07/clarence-thomass-billionaire-benefactor-collects-hitler-artifacts/
Isn’t that nice?
I have a piece of the Berlin Wall that my parents bought me when we visited the site in the early nineties. I also probably have souvenirs lurking in a box from when we visited the Eagles nest and the bunkers. As a child I listened quite gleefully to the stories of Hitler’s suicide in those bunkers during a tour.
History is history. It happened. Burying it doesn’t make it disappear.
I recently listened rather bemusedly to the story of two business partners, one white and one black, regarding some shenanigans with some mortars that led to the neighbors calling the cops. Apparently the neighbors thought reporting their white neighbor for being racist would lead to a more desired result than reporting him for noise violations. The incident apparently resulted in the black business partner doing donuts in the front lawn on a riding lawnmower while waving a confederate flag screaming freedom at the top of his lungs. Assuming intent in a multicultural country leads to interesting and bizarre results.
Not everyone sees things the same way. Some see confederate statues as historical artifacts that warn against the failures of the past. Others see them as racist relics that need to be destroyed.
I’m not going to make assumptions as to the intent based off of other’s disapproval. antisemitism is obviously wrong and unethical. One man’s disapproval is another man’s reminder of historical atrocities.
The forceful indoctrination of the entire country to view everything the same way is unethical, and I’m not going to participate in it.
You think David Duke would be willing to hang out with Clarence Thomas? I have my doubts.
Anyways, as I said previously, I’m not interested in getting a reliably red vote. The country can survive someone who leans left being appointed to the Supreme Court. What it cannot survive is the nullification of the constitution. I don’t think it can survive even some nullification of the constitution.
To weigh this, we have to look at the impact each decision path is likely to take. What is the current state, and what are the likely end states.
The current state is half the country believing that the court is rigged, and the other half of the country believing that the government is out to destroy them. Whether these perspectives are accurate is not really relevant. This is the current state of public sentiment. It is somewhat of a stalemate. Each side feels they have somewhat of a recourse to current events.
If Clarence Thomas does not resign, the status quo is maintained. The left continues to believe the courts are rigged, and might have a somewhat legitimate argument in comparison to now, but nothing changes. They continue to own the government and the right continues to believe they have somewhat of a recourse to the courts for unconstitutional behavior and a defense against totalitarianism. Nothing changes.
If Clarence Thomas resigns, the stalemate is broken. The right loses faith in the courts, believes the constitution is dead, and the totalitarians have won. This leads no where good, and most likely to a great deal of violence. Perhaps just hopelessness and deterioration of…well, everything. Neither scenario maximizes happiness.
So what level of unethical behavior would change my mind? Any behavior that changes a significant portion of the rights mind. I’m looking at the future and minimizing the potential for catastrophic outcomes. I believe that a stalemate is preferable to a catastrophe. I think that sometimes in ethics it is important to see the forest from the trees, or lose the battle and win the war. Does this forest excuse the unethical actions of one man? No. Does the ethical breach of one man justify the destruction of millions of lives? I think not.
Of course, ethics by committee isn’t particularly ethical either. I’m still thinking about this, and I probably need to go think about it somewhere other than the comment section of this blog.
If a non-totalitarian destroys the trust required of his position and refuses to resign, that makes the removal of a confirmed totalitarian in that same position (who we already know will refuse recusal by nature) much more difficult.
Yes, perhaps RBG’s questionable social activities paved the way for much of the rationalizations flying to and fro, but by moral luck it didn’t work out for her in the end.
If we remove the sword of Damocles from Thomas’ seat, we remove it from all of them. That unwittingly creates the nurturing environment for totalitarianism to thrive in.
I will quote you from a previous post.
https://ethicsalarms.com/2022/01/23/the-pandemic-post-i-never-wrote/
(emphasis added)
Justice Thomas resigning is neither politically nor logically possible. It can not be ethical; it is just ethics static.
(emphasis added)
And here we are. No course involving Justice Thomas resigning is possible.
Why isn’t is possible?
Which party currently is dedicated to refusing to impeach corrupt and unethical political figures regardless of the evidence of their corruption and lack of ethics?
It is impossible precuisely because there is no will to impeach him, and too many people would oppose his resignation.
It is just like it was impossible to steer from the wrong course during the COVID-19 pandemic, as Jack described.
@Seriously It’s not possible in the same way it’s not possible to have anything but a two party system. The majority of the people think it’s not possible and are ok with the way it is. Therefore it isn’t possible.
Sadly, you are correct
Of course it’s possible. That principle doesn’t apply. All he needs to do is to decide that honor requires it. which it does, just as it required Clinton to resign, just as Nixon did resign.
Your resolution here is politically and logically impossible, just like it was in May of 2020.
It’s a terrible analogy. Concluding that something is unlikely to happen and can’t happen are two different things entirely. Of course Thomas could be forced to resign. If the GOP had responsible leadership and John Roberts had a spine…which he should have, somewhere—Thomas could be forced to resign. It is politically impossible for him to be impeached.
If I were Thomas I would resign. If I were Thomas, I would have resigned before 2021.
If I were Thomas I would resign. If I were Thomas, I would have resigned before 2021.
If you were Thomas we would not be discussing this.
I’m not sure I even know what that means.
He’s saying the issue wouldn’t have come up if you were Thomas because you are a more ethical person.
The exp,lain why your proposed resolution ton the pandemic was logically and politically impossible in May of 2020, why the wrong course was the only c ourse possible.
I’m going to write about that again, but it’s pretty obvious, and I don’t know why you’re obsessed with it. If a President does nothing in the face of a mystery epidemic, then he will be accused of killing every single victim of the disease, because if he did “something” they might not have died, and the “experts” were advising somethings. If he does “something” advised by the experts, even if it actually didn’t work or even made things worse, he has the defense, “Imagine how many more would have died if I hadn’t followed the science?” A leader has no choice in that situation, especially in Trump’s case, where the media is primed to blame him anyway.
I still don’t see the Thomas analogy you seem to see.
I’ll say it again, no chance in hell I’d support getting rid of a justice like Thomas knowing that the replacement will definitely be someone less ethical, less respectful of our constitutional, and far more dangerous to our Republic. I also will not reward those hypocrites who will never ever hold their own to the same standards, ethical or otherwise.
However, to address your ethical analysis, basically you think that even though Thomas did not do anything illegal, and that there’s no evidence whatsoever that these trips or anyone that was there had any bearing on his decision making in any case, not disclosing them was unethical because it create mistrust in the institution.
This does not compute, however, because those most of those who would think he should resign or be removed for this already wanted him removed for political reasons.
In other wore, the vast majority of those thinking he should resign now (based on this) never respected him and have always wanted him gone, and would never hold his replacement to the same ethical standards. So, the ethical math does not add up for supporting his removal or resignation.
Ron. You know that “illegal” is not the standard for ethics. Good Lord. That’s the whole point of the site! His job. like all professionals, includes protecting the institution. “most of those who would think he should resign or be removed for this already wanted him removed for political reasons.” Who says? That doesn’t describe me, or the many lawyers I’ve talked with who may not like Thomas but who would not support impeaching him for political reasons.
Nor is a justice who believes that Constitution has to be adaptable to changing cultural standards “unethical.” It’s a valid theory.
“I’ll say it again, no chance in hell I’d support getting rid of a justice like Thomas knowing that the replacement will definitely be someone less ethical, less respectful of our constitutional, and far more dangerous to our Republic.”
You don’t know that, though. People keep saying this, but I haven’t seen any evidence of it.
Biden has already appointed on justice to the court–Ketanji Brown Jackson. If so many here are so certain that Biden would only nominate justices that hate the Constitution, I would think they’d point to evidence that Jackson’s rulings have demonstrated such contempt. But I haven’t seen anyone even mention her in these discussions so far. Which indicates that this argument is just based on partisan hatred of Biden, not any objective analysis of his record with Supreme Court picks.
“ Biden has already appointed one justice to the court–Ketanji Brown Jackson. If so many here are so certain that Biden would only nominate justices that hate the Constitution, I would think they’d point to evidence that Jackson’s rulings have demonstrated such contempt. But I haven’t seen anyone even mention her in these discussions so far. Which indicates that this argument is just based on partisan hatred of Biden, not any objective analysis of his record with Supreme Court picks.”
That thought process is not entirely logical. Why need the nomination of Brown be mentioned? Isn’t it just as fair to expect, without specific enunciation that Biden will simply follow a similar nomination strategy that he used in his first nomination to the high court?
“Justices that hate the Constitution”? Who said that? It certainly was not in your quotation that immediately preceded it. Ron-in-Chicago said, “ less respectful of our constitutional.” Nothing about hate.
But again with the hate: the failure to bring up Brown “ indicates that this argument is just based on partisan hatred of Biden, not any objective analysis of his record with Supreme Court picks.” Is hatred of Biden the only explanation. His cognitive abilities are questionable; his judgment seems impaired; it is reasonable to doubt that he is the one making the decisions, and race, gender and ethnicity have been deciding factors in many of his personnel decisions. One does not have to hate Biden to believe his judgment is horrendous.
But, I know, the Left loves hate. it can explain away any opposing position.
-Jut
Here is my opinion based on all I’ve read and heard.
1. It’s my understanding that there are no rules for SCOTUS that covers the disclosure of these “gifts” from close friends until a month or so ago.
2. What Justice Thomas did, and for that matter any other Justice or Judge that would do the same thing, was unethical on multiple levels.
3. Justice Thomas cannot be thrown off the court for this.
4. Calls for Justice Thomas to be impeached are ludicrous.
5. If Justice Thomas chooses to resign due to this, I whole-heartedly support that choice.
6. If Justice Thomas chooses to remain in SCOTUS I “support” that choice even though I disagree with it ethically.
That’s my opinion and I’m sticking with it.
1. From ProPublica: the Ethics in Government Act, requires Supreme Court justices and many other federal officials to report most gifts to the public. Justices are generally required to report all gifts worth more than $415, defined as “anything of value” that they don’t repay the full cost of. Gifts are disclosed in an annual financial report that is made public. There are exceptions, and experts parsing the legality of Thomas’ failure to disclose the travel have been focused on a carve-out known as the “personal hospitality” exemption….”
2.Bingo.
3.Correctamundo!
4. Agreed.
5. As you should.
6. A defensible position..
SIDE NOTE: Something I found out during all this mess that I didn’t already know (or forgot) is that Justice Thomas has a history of doing the judicially ethically correct thing while sitting on the court and recused himself when there is a conflict of interest in a cease presented to the Supreme Court. I wonder if he would recuse himself if there was a case that came before the court that was somehow connected to his close friend that showered him with nice vacations, etc.; and based on his past recusals, I’d like to think that he would recuse himself if such a case were to be presented to the court. This is of course completely ignoring the recent smears from the political left about his wife.
This is the primary reason that I added #6 to my list above.
“ SIDE NOTE: Something I found out during all this mess that I didn’t already know (or forgot) is that Justice Thomas has a history of doing the judicially ethically correct thing while sitting on the court and recused himself when there is a conflict of interest in a cease presented to the Supreme Court.”
I’m curious where you heard that. I’ve heard quite the opposite:
“He did recuse himself in the mid-1990s from a case involving Virginia Military Institute because his son attended the school. But that was one of just 32 times he has recused himself in 28 years on the court, according to the nonpartisan advocacy group Fix the Court. As with other justices, most of his recusals came early in his tenure, because of conflicts with his previous work. But Thomas has recused himself far fewer times than the average justice on a court that generally features about 200 recusals per term from the nine justices.”
https://www.washingtonpost.com/politics/2022/03/25/thomas-texts-recusal-worse/
Seriously wrote, “I’m curious where you heard that. I’ve heard quite the opposite:”
See this is the kind of ridiculous reply that you get from a trolling partisan hack. They imply that what you wrote was false and then proceed not to support their implication but to support the original statement that they oppose for some irrational reason.
Here’s a fact for Seriously; nothing in what you wrote wrote contradicts what I wrote, and furthermore, it’s completely irrelevant to compare how many recusals Justice Thomas has had to the number of recusals the other Justices have had, it a BS argument.
The rhetorical tactics used by Seriously are very familiar and very revealing.
Of course that’s relevant, especially in a story about how Thomas refused to recuse himself in a case where many were demanding his recusal.
Get it, fool?
No. What is that image and what does it have to do with what we’re talking about?
OKAY, Seriously: I just sent this to the email address you attach to your comments:
“Because I’m a nice guy, and I think you can be a valuable contributor to the comments one you get over your Trump obsession, I’m extending your 10 Pm (yesterday) deadline to get me your real name until the end of today. But if I don’t get that information, your commenting privileges will be suspended until I have it. It shouldn’t be a big deal, unless you’re really Alec Baldwin….”
It bounced back, meaning that the email address is fake. Not cool! I don’t ask for much, but I do require a real email address and a real name as a condition of commenting here, and the Comment policies are quite explicit on that point.
So..anything you try to post after this comment will be trashed until you meet your obligations.
So,
Chr“Seriously?” has had almost a week to generate a random name, create a legitimate email account with *ANY* of the free email services the internet provides and still he couldn’t cough one up.I don’t know what this means.
Michael West wrote, “So,
Chr“Seriously?” has had almost a week to generate a random name, create a legitimate email account with *ANY* of the free email services the internet provides and still he couldn’t cough one up.”Even though that’s a possibility, I personally don’t think it’s
Chr….Well, if he (or she) doesn’t, it means he or she don’t care to respect the rules. If the final final deadline is made, I’ll take it to mean that he/she just wasn’t making it a high priority—because I believe in giving everyone the benefit of the doubt.
What if the first time you met someone they led off with something you consider to be signature significance? Which ethical impulse wins the battle?
Benefit of the doubt or attributing signature significance to the action?
Why can’t it be both?
“Signature significance posits that a single act can be so remarkable that it has predictive and analytical value, and should not be dismissed as statistically insignificant … Ethics Alarms employs the term to describe an extreme ethical or unethical act that similarly reveals the true character of the individual responsible for the conduct, and that can be reliably and fairly used to predict future conduct and trustworthiness.”
That reads to me as using a single instance to evaluate someone’s whole self.
Giving the benefit of the doubt is to see a single instance and attribute it to circumstances beyond the control of the actor – such as an exceptionally bad day or sudden circumstances that prevent a person from making the best decision or life events piling up preventing someone from making the right decision at the soonest possible time.
Both are ethical impulses, but I don’t think they would be compatible in the context of first impressions that I described.
Obviously not the WHOLE self, just a substantial enough portion of it that attention must be paid. I once saw a mother on the sidewalk in DC karate kick her 8-year-old son. She may be wonderful to dogs, a delightful drinking companion and a talented accountant, but she’s a child abuser, has poor impulse control, and is dangerous to those weaker than her. One incident is enough to prove it. Then my choice is: knowing that, do I want to take the time and risk to see if there are compensating aspects of her character?
Then the answer would be that “signature significance” will win out over “benefit of the doubt”. Not contesting the response. Just curious.
If it is truly signature significance, then there is no doubt, hence no benefit of the doubt.
“Even though that’s a possibility, I personally don’t think it’s
Chr….”I’m with Steve on this here.
Seriously wrote, “No. What is that image and what does it have to do with what we’re talking about?”
This is a perfectly justifiable public use of Hanlon’s Razor; “Never attribute to malice that which is adequately explained by stupidity.”
It’s a picture of a goalpost being dragged around which happens to be a prefect analogy of one of the ridiculous rhetorical tactics you use.
So now you can store that explanation back in the back forty of your grey matter so the next time you see something similar you can apply what you’ve learned today and not appear to be stupid.
There, I’ve performed my public educational service for the day.
Stipulated: In theory, the ethical course of action is for Justice Thomas to resign, because the institution of the Supreme Court functions based on the assumption that the justices are not corrupt, i.e. they do not accept incentives to influence their decisions. Anything that introduces serious doubt about that assumption damages trust in the court’s integrity, and is unethical.
Ethics does not exist as a set of arbitrary rules. The purpose of ethics is that it puts a society in a better position in the future. For Justice Thomas to resign would demonstrate a measure of good faith on his part (albeit diminished by having gone on the trips in the first place). It makes a statement that conservative justices value trust in the Supreme Court as an institution more than they value a political advantage. It indicates they will respect progressive justices for stepping down in a similar situation, that they would not press a political advantage which might incentivize progressive justices not to do so.
The reason that some people feel it is more desirable for Justice Thomas to remain on the court is because it seems like a critical short-term measure, a stopgap. If the point of ethics is to build the trust that allows society to function at its best, it seems to them that starting with this situation would build very little trust at the cost of sacrificing political power* to people who are perceived as destructive and unreasonable. If you apply ethics as you would in an ethical society, and it has a heavy short-term cost because of unethical actors, you had better be sure your sacrifice is helping set up some long-term change towards a more ethical society, or it’s a pointless gesture.
Because humans treat politics as a high-stakes game, they feel that losing is worse than cheating (corruption) even though cheating damages the game and brings the game closer to an outright fight (turmoil). Because each side cheats and knows the other side is also cheating, the cheating has a tendency to slowly escalate. Welcome to the iterated prisoner’s dilemma, as played by people who have never learned what that is.
A long-term response is to eschew cheating at the risk of possibly losing the game, because it preserves the integrity of the game and avoids a fight. A short-term response is to cheat to avoid the immediate risk of losing, at the long-term risk of a fight.
However, the choice between short-term and long-term solutions is a false dichotomy. Long-term solutions don’t work if people feel they cannot afford the up-front costs they require, and no amount of short-term solutions laid end to end are going to lead to a world we’d be proud of. Humans have a nasty habit of pushing one and ignoring the other, instead of figuring out short- and long-term solutions that are mutually compatible. From an outside perspective, it’s rather infuriating.
If Justice Thomas were to step down, we should make sure it contributes to trust in its institutional integrity and figure out a replacement justice who would have bipartisan approval. Otherwise, we should be working to build trust somewhere, even if it’s not in the Supreme Court at the moment.
For those afraid of losing the current game, go ahead and do what you feel you have to do. But while you’re doing that, you need to work on setting up a different game. I won’t say this game was unethical from the start, because the stakes were never meant to be this high. When people started awarding the winners more spoils at the cost of everyone else, that’s when the game began to warp beyond recognition under the pressure of collective desperation.
If you want a system that people trust, one that rewards honesty and diligence, you need to make sure that those on the losing side of a conflict don’t have a reason to fear the consequences. (Sometimes that means going the extra mile to help them overcome their fears. It’s worth it.)
*Part of the problem is that the Supreme Court has any “political power” at all. I blame Congress for being incompetent at writing laws, and by extension I blame the voting public for not organizing to demand better legislators.