Justice Clarence Thomas

Tales of the King’s Pass

/ Jack Marshall / 1 Comment

During the baseball off-season the MLB channel on DirecTV has a lot of dead time to fill between the periodic announcements of trades, free agent signings and post-season awards and honors. Lately it has been re-running an old Bob Castas show called “Studio 42” (that’s Jackie Robinson’s number) where the perpetually boyish-looking baseball commentator, who now really is Old Bob, interviews retired players and managers about significant games and moments in their careers.

In an episode I happened across this morning after my dog woke me up and then stole the bed as soon as I got out of it, Costas’s guest was the late, great manager Whitey Herzog, like so many successful baseball managers, a mediocre-to-poor player in his Major League career. Whitey told a story that is as good an example of the King’s Pass, #11 on the Rationalization List, as there is.

He said that in one game between the old Washington Senators (the first Senators, the team that moved to Minnesota and became the Twins) and the Red Sox in Boston, Ted Williams had drawn a walk on a 3-2 pitch right down the middle of the plate that the umpire had called a ball. Williams was famous for his plate discipline and above-average eyesight, and umpires frequently let him, opposing players complained, call his own balls and strikes because unpires acknowledged that he was better at it than they were. Herzog came to bat late in the same contest having walked four times and with a chance to set a record by getting five bases-on-balls in a single game. He told Costas that the umpire called him out on strikes on a 3-2 pitch in the dirt.

“I turned around and said to the ump, ‘You give Williams five strikes and give me only two. It should be the other way around!'”

This struck me particularly squarely because I had been thinking about the Judicial Conference declining to take any action against Supreme Court Justice Clarence Thomas, who has been the subject of a Senate Judiciary inquiry ever since ProPublica revealed that the Justice had neglected to report around half a million in luxury travel and gifts as legally required by the Ethics in Government Act of 1978.

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Ethics Dunce, Redux: Justice Clarence Thomas

/ Jack Marshall / 2 Comments

In a new filing released today, Justice Clarence Thomas amended his financial disclosure for 2019 to note that he “inadvertently omitted” reporting two extravagant vacations paid for by conservative billionaire Harlan Crow, one to Indonesia and the other to the Bohemian Grove, an all-male retreat in northern California. Just slipped his mind! Hey, it could happen to anybody! Who hasn’t completely forgotten about a luxury trip they have enjoyed on the dime of a politically active tycoon? Heck, I know I just remembered one today, after I read this story. Well, it’s all better now; Thomas just retroactively corrected his lie of omission from five years ago.

Anyone who accepts this is ethically estopped from complaining about the White House editing Joe Biden’s blabberings to make him sound less like he belongs in a hospice.

Pro Publica correctly notes that last year, when these and other examples unusual largess from Crow—like paying for Thomas’s mother’s house—were revealed, Thomas’s “Justice Thomas’s lawyers issued a statement on the Justice’s behalf. saying that the allegations were untrue.

Like all lawyers, Supreme Court Justices are prohibited from lying in the course of their professional conduct. The prohibition on lawyer conduct is serious, but even more serious for judges, and extra-special, supercalifragilisticexpialidocious serious for the highest judges in the land.

Thomas is a disgrace, as I have said before.

But at least he never let his wife fly a 250-year-old historical flag that some idiots used to express their own political opinions…

Officials And Leaders Who Conservatives Consider Essential Bulwarks Of Constitutional Government Really Have To Stop Relying On “The King’s Pass”

/ Jack Marshall / 10 Comments

Take Clarence Thomas for example.

As with Donald Trump, who was the object of much rationalization here yesterday, Justice Thomas apparently is certain that conservative and Republican integrity don’t have the rigor to make him accountable for a truly staggering series of judicial ethics breaches. He is also apparently correct in this assumption.

Justice Thomas finally acknowledged publicly that he should have reported selling real estate at a suspicious profit to billionaire political donor Harlan Crow in 2014, a transaction disclosed by ProPublica earlier this year. The Crow company bought a string of properties for $133,363 from co-owners Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed. Conservative power-player Crow then owned the house where a Supreme Court Justice’s elderly mother was living—hey, no big deal!—and soon contractors began tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home. Although a federal disclosure law requires SCOTUS Justices and other officials to disclose the details of most real estate sales over $1,000, Thomas never deigned to mention this convenient and inherently suspicious transaction. You know, that “appearance of impropriety” thingy?

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Unethical Headline Of The Year (So Far): Conservative Website “Hot Air”

/ Jack Marshall / 13 Comments

Ugh.

How disgraceful. Here is the headline: “Clarence Thomas must resign because he went on vacation or something.” Despicable.

Justice Thomas, the most extreme conservative jurist on the U.S. Supreme Court, already, in the assessment of Ethics Alarms, has been shown to have engaged in unethical judicial conduct by raising a flaming appearance of impropriety with his acceptance of lavish junkets from an activist conservative billionaire and his failure to report them. The verdict here in April was that Thomas is obligated to resign, and that is still the verdict. His inexcusable conduct not only undermines his own credibility but the credibility and legitimacy of the entire Supreme Court.

But now, there is evidence that Thomas’s conduct was even worse than what was reported last Spring. From Pro Publica:

A cadre of industry titans and ultrawealthy executives have treated him to far-flung vacations aboard their yachts, ushered him into the premium suites at sporting events and sent their private jets to fetch him — including, on more than one occasion, an entire 737. It’s a stream of luxury that is both more extensive and from a wider circle than has been previously understood. Like clockwork, Thomas’ leisure activities have been underwritten by benefactors who share the ideology that drives his jurisprudence. Their gifts include: At least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas; 26 private jet flights, plus an additional eight by helicopter; a dozen VIP passes to professional and college sporting events, typically perched in the skybox; two stays at luxury resorts in Florida and Jamaica; and one standing invitation to an uber-exclusive golf club overlooking the Atlantic coast. While some of the hospitality, such as stays in personal homes, may not have required disclosure, Thomas appears to have violated the law by failing to disclose flights, yacht cruises and expensive sports tickets, according to ethics experts. Perhaps even more significant, the pattern exposes consistent violations of judicial norms, experts, including seven current and former federal judges appointed by both parties, told ProPublica. “In my career I don’t remember ever seeing this degree of largesse given to anybody,” said Jeremy Fogel, a former federal judge who served for years on the judicial committee that reviews judges’ financial disclosures. “I think it’s unprecedented.”

Jeez, I hope it’s unprecedented! The degree of arrogance and dunder-headedness that led Thomas to do this is astounding. He’s known he’s had a target on his back since he was nominated for SCOTUS; he knows, or should know, that he is going to be scrutinized for missteps like no other Justice in the Court’s history. For Thomas to accept such trips and luxuries from parties who stand to benefit from the results of the Court’s deliberations is as irresponsible for a controversial Supreme Court Justice as it would have been for Jackie Robinson to secretly run a numbers game while he was playing for the Dodgers.

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Regarding Justice Alito’s “Appearance Of Impropriety” Scandal

/ Jack Marshall / 1 Comment

Justice Samuel Alito did not disclose a 2008 trip on the private jet of Paul Singer, a billionaire GOP donor, and did not recuse himself from a later case involving Singer’s hedge fund. Since the Supreme Court is now under a sustained attack by Democrats and progressives, partially because of the Dobbs ruling (How dare unelected judges rule that unelected judges shouldn’t decide matters the Constitution leaves to legislators?) and partially because they see the current conservative-leaning Court as its greatest roadblock to a socialist, quasi-totalitarian Nirvana, his best, most responsible and most ethical course was to admit he made a mistake, show that he understood the public’s concern, and vow to be more mindful of his conduct going forward.

Instead, Alito penned a Wall Street Journal op-ed defending his indefensible conduct,  declaring himself as innocent as a newborn lamb, and, of course, making things worse. His piece was full of legalistic hair-splitting to explain why he was well-within the requirements of the Ethics in Government Act, but the universal ethics requirement that judges must avoid the appearance of impropriety does not rest upon legal niceties. It rests upon how the public perceives things, and most of the public can’t read a statute and don’t read court opinions.

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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?

/ Jack Marshall / 8 Comments

Ugh.

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.

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The Complete List Of Rationalizations To Excuse Justice Thomas’ Gross Betrayal Of Judicial Ethics, And Other Updates (Part I) [Revised and Expanded]

/ Jack Marshall / 28 Comments

Just in case you’re wondering, I stand by everything in my previous post about Justice Thomas’s unprecedented breach of judicial ethics and his obligations as a Supreme Court justice, except my belief that Thomas would resign, or be forced to. Not for the first time, I badly over-estimated the integrity of a public servant. Other points…

1. Above is Thomas’s statement this morning regarding the ProPublica report that he has been accepting lavish trips from conservative donor and billionaire Harlan Crow for decades. It is garbage, top to bottom:

  • The fact that the Thomases and the Crows are good friends or old friends is irrelevant, and is no defense.  Of course SCOTUS justices can have friends, and can socialize. However, many of the vacations the Crows took Clarence an Ginni on included other politically interested conservatives, who has access to Justice Thomas and an opportunity to pursue their interests with him as a captive audience. Moreover, one reason such situations suggest impropriety is the Cognitive Dissonance scale: gifts tend to raise the giver and what the giver is linked to on the scale of the receiver. This is why legislators and government employees are limited by laws in what kinds of gifts they receive. The legal ethics rules also caution against accepting expensive gifts from clients, because it might interfere with independent judgment, even though lawyers are supposed to already be on their clients’ sides.
  • “Family trips” is deceit. More than just the Crow family went on these trips. Thomas is obfuscating.
  • What “colleagues”? When was “early in his tenure”? Thomas joined the Court in 1991, well before the vacations with the Crows began. Are we supposed to believe he asked about gifts and junkets like these before they were offered? By colleagues, does he mean other justices? “I once asked somebody and they said it was okay” is a particularly unconvincing justification. 
  • Our first unethical rationalization, and it’s a lulu:#4 Marion Barry’s Misdirection, or “If it isn’t illegal, it’s ethical.” Thomas is saying that because no official standards prohibited what he did until recently, what he did was okay. Wrong! Rules, laws and standards don’t make unethical conduct wrong, ethical principles do. Thomas knew that the vacations violated well-accepted and near-universal principles of judicial ethics. He was and is a judge, and judges must avoid the appearance of impropriety and influence. For a Supreme Court justice to invoke the same corrupt logic as D.C.’s rogue mayor is disgusting and depressing.
  • It is false to say that the trips were not “reportable.” Of course they were reportable: Thomas deliberately chose not to report them.

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End Of Week Ethics Wrap-Up, July 1, 2022: Freakouts, Freakouts Everywhere….[Corrected]

/ Jack Marshall / 11 Comments

Prelude: Why is the President of the United States attacking the Supreme Court in Madrid? His comments about a judicial body deliberating on the Constitution is not only wildly inappropriate for a President speaking abroad, his words were either calculated to make ignorant Americans even more ignorant about what the Court is, or show that he doesn’t understand himself (or no longer does). Biden called the Dobbs decision “outrageous behavior.” A SCOTUS ruling isn’t “behavior”; even Dred Scott wasn’t “behavior.” These are scholarly judicial analyses. Then he accused the Court of being “the one thing that has been destabilizing” to the nation. The Supreme Court? Upholding the Constitution is maintaining the foundation of the democracy: how is that destabilizing? Holding political show trials to try to find something that the previous President can be jailed for is destabilizing. Threatening parents who challenge indoctrinating school boards is destabilizing. Not enforcing U.S. laws at the border is destabilizing. Attacking the Supreme Court is destabilizing.

Then Biden said that Dobbs was “essentially challenging the right to privacy.” No it wasn’t, but let’s reflect back on an earlier incoherent and dim-witted statement Biden made about abortion after the Alito opinion leaked:

“I mean, so the idea that we’re going to make a judgment that is going to say no one can make a judgment to choose to abort a child based upon a decision by the Supreme Courts, I think goes way overboard.

Of course, the decision didn’t say, in May or now, that “no one can make a judgement to have an abortion.” I think Biden was and is shooting off his mouth without reading the opinion. But never mind that: he said “abort a child.” Not only does he approve of abortion, but regards it as killing a child, and must think that “privacy” includes virtual infanticide. Oh, I know, he doesn’t know what he thinks: he used to claim that there was no right to abortion. But if he’s that muddled on the issue, and he is, what business does he have impugning the decision of SCOTUS justices wrestling with difficult topic—in Spain—at all?

1. Oh, why not? Here are some more Dobbs freakouts:

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“Democracy Dies In Dickness”*: The Washington Post’s Racism

/ Jack Marshall / 6 Comments

This article in the Washington Post yesterday, authored by two “reports of color,” Cleve R. Wootson Jr., a White House reporter for the Post, and Marianna Sotomayor (no relation to that other Sotomayor) who now covers the House of Representatives for the Post after coming over from NBC, gained quite a bit of notice from the conservative news media (and none at all from the much larger other side, for this passage when it was first published:

 
 
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Nice! The two post reporters managed to insult Thomas by reducing his legal opinions to knee-jerk bias, and to attack conservatives based on their race. The obvious rejoinder to this slur would be whether the Post would tolerate an article that criticized, say, Justice Kagan as issuing opinions that are in lockstep with the advocacy of “black progressives.” What does race have to do with either observation, the actual one or the hypothetical reverse negative?

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In Borden v. US, Justices Gorsuch And Thomas Indicate They View The Law As Taking Precedence Over Ideology

/ Jack Marshall / 4 Comments

Gorsuch-and-Thomas

Good. That’s two: maybe there are more.

So- called “three strikes” laws are a conservative invention to bind the hands of liberal judges inclined to give too-lenient sentences to repeat offenders because of superfluous factors like a tough childhood. As a result, liberal justices generally detest the device, arguing that it takes the judgment out of judging.

In Borden v. US, a case that asks if a conviction for a violent felony based on recklessness or negligence rather than malice should count as a “strike,” the three bedrock progressives on the U.S. Supreme Court, Justices Breyer, Sotomayor and Kagan, voted predictably, against the application of a “three strikes” law. If all six conservative justices showed similar fealty to their biases, the petitioner, Charles Borden, Jr., would face an enhanced sentence after pleading guilty to possessing a firearm as a convicted felon, because he had three previous convictions for “violent felonies” according to Tennessee. Confounding the Supreme Court politicizers who don’t believe judges are capable of being ethical—which requires putting aside personal biases and loyalties to do the right thing—Justices Clarence Thomas and Neil Gorsuch voted with the liberals. They did so because they were following the letter of the law, and that is the Supreme Court’s job.

In Borden, prosecutors argued for the mandatory 15-year sentence based on three earlier convictions that included on for “reckless assault.” Borden argued that such a conviction was not a “strike’ according to the wording of the law, and in law, words are supposed to matter. His claims were rejected in the lower courts, and Borden was sentenced as a “career-criminal.”

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