Back To The Justice Thomas Scandal: Do Conservatives Really Not Understand The Appearance of Impropriety Judicial Ethics Prohibition, Or Are They Just Choosing To Ignore It?


From the Daily Caller:

Conservative legal scholars are calling attacks on Clarence Thomas for his alleged ethics violations hypocritical in light of Ketanji Brown Jackson’s financial disclosure as a nominee, which shows she omitted portions of her income on previous filings, including money from her husband’s consulting work.

These “conservative scholars” are partisan hacks.

Their argument is that because Jackson’s SCOTUS nominee disclosure papers filed in March 2022 “inadvertently omitted” income her spouse “periodically receives from consulting on medical malpractice cases” (which was disclosed on prior reports), there is a double standard applied to conservative justices. Utter garbage, and I suspect intentionally misleading. There would be no demands for Thomas’s resignation if all that was at issue was the failure to report some ambiguous gifts on his annual disclosure forms. SCOTUS justices have done this many times in the past: it is grounds for criticism and a necessary “Sorry, I won’t do that again” statement. The reason Thomas’s 20 years of unreported vacations with ultra-conservative billionaire real estate developer Harlan Crow is that it looks bad, to the public, to objective judicial ethicists, and to me.

The Caller (it is the creature of the habitually dishonest Tucker Carlson, after all) describes Crow as Thomas’s “friend and billionaire real estate developer.” That’s deceit, as in “lie.” If this was all that Crow is, then Thomas’s luxury trips with him and his pals would be a minor technical issue. It isn’t all, though: he is a major donor to conservative organizations, candidates and causes. Thomas vacationing with him, and other politically-involved conservatives that accompanied Thomas on some of the trips, calls into question Thomas’s independence an objectivity as a jurist, as well as raising the specter of purchased access. It looks suspicious—that’s literally what the “appearance of impropriety” means, and why it is prohibited in every judicial ethics code—-and if it looks suspicious, it undermines the legitimacy of the Supreme Court, justice, and the Separation of Powers generally.

The focus on the breach of the reporting requirement is a straw man—true, Thomas’s failure to report raises the question of whether he was hiding his relationship with Crow, which again invokes the appearance of impropriety. But the key violation is that, not the reporting requirement.

Do conservative lawyers, ethicists and scholars really not see this? I find that difficult to believe, even applying Hanlon’s Razor.

A real double standard would be if Justice Jackson had been taking luxury vacations with George Soros and Democrats shrugged. “Democratic lawmakers are calling for Thomas’ resignation following ProPublica’s report that he failed to disclose expense-paid vacations he received from his friend and billionaire real estate developer Harlan Crow,” says Tucker’s mouthpiece, again misleading by omission.

Not only “Democratic lawmakers.” I am calling for his resignation too.

8 thoughts on “Back To The Justice Thomas Scandal: Do Conservatives Really Not Understand The Appearance of Impropriety Judicial Ethics Prohibition, Or Are They Just Choosing To Ignore It?

  1. it isn’t even news, it was reported on around 2010. Everyone including the Democrats shrugged there shoulders and did nothing…
    I don’t like that t is happening, but I doubt it is the worst example of pay to play or straight up corruption. Rationalizing it or just being pragmatic about how broken our system is and has been.

    • Did Soros not declare those contributions? Did the DA’ss try to keep them secret? Do we see it as a bigger problem when judges are influenced by political donations than prosecutors? Are the DA’s continuing to take undisclosed money and favors from Soros after they are in office?

      Just a few differences off the top of my head.

      • Yeah, I don’t see an analogy. Soros is a citizen, and can donate money to whatever cause he chooses. Having DAs and judges be elected creates obvious problems, but that’s a systemic issue, not one that can be blamed on the candidates. When the NRA or the Trial Lawyers give money to Reps and Senators, there are no conflict or ethical violations because it is not (we hope) a quid pro quo. However, it is assumed that elected officials feel some affinity to their supporters. Federal judges and SCOTUS judges are supposed to hew to a higher standard.

  2. At this point? With the collective ear plugging people have been doing since Clinton? I doubt most people do understand anymore. The ones who do understand are ignoring it because the country is being run by psychopaths who pose far more danger with Thomas off the court than on it.

    • O 66.. Bingo.
      Rather than wade into the Thomas morass again, I’d like to try to induce Jack, (and/or others on this blog) to expound on a general principle regarding how to resolve conflicting ethics dilemmas that are not tractable by the “Ethical Decision-Making Tools”. For example, suppose in November 2024, faced with a Trump-Biden rematch, stipulating that both are considered unethical by Jack and others, how do you vote? List all the rationalizations for each with some weighting and create an ethics score? Decline to vote? Vote for a third party, equivalent to not voting? Run for president? Move to Uganda?
      I think I’ve seen Jack say that ethics and the law are not the same. Ethics and politics are not the same are they? Look, I wouldn’t be foolish enough to come on this blog and deny or discount the importance of ethics, nor would I make reference to angels on the head of a pin. What I would say is that ethics, or ethical analysis, decides ethical issues; the law, or legal analysis, decides legal issues; political analysis decides political issues. And the three coexist, overlap sometimes, and are disjoint at others.
      As for the Supreme Court, it’s been up and down over the years, Dred Scott, Brown, Roe, Dodd. A bigger issue than the credibility of the court is the survival of the Constitution and the country.

      • Utilitarianism is sufficient to solve any of those ethics conflicts. Then the task is ethical analysis and weighing probable outcomes. In 2016, I wrote repeatedly that I would not vote for Donald Trump under any circumstances, because he was the kind of individual who should never be trusted to lead a nation, especially this one. That was an absolutist position. I was prepared to hold down my gorge and vote for Hillary, horrible as she was (and is), until revelations abut Democratic Party cheating in its nomination process made me convinced that Hillary’s party was as unfit to lead as Trump was. I wrote in a name (essentially not voting for anybody).

        Absolutism is a very limited ethics system, and by 2020, I had enough information to use the utilitarian system. In 4 years, Trump had performed well enough, and demonstrated enough good instincts regarding basic American principles and values, to justify being assessed as the better of two dangerous options, especially since the Democrats had proven me right about their unfitness to lead by a full-fledged embrace of anti-Constitutional, crypto-totalitarian politics since 2016, all aided and abetted by the news media, making the development particularity dangerous and repellent. So I voted for Trump, as purely utilitarian trade-off.

        The same system can address the Thomas/SCOTUS conflict. The values, issues and balance are very different.

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