Clarence Thomas Must Step Down

By Adele M. Stan, AlterNet

24 June 11

Plagued by ethical breaches and links to groups calling for armed insurrection against the US government, Clarence Thomas must resign his seat on the Supreme Court.

ime was when, at any right-wing gathering, chances were that you'd hear the justices of the Supreme Court derided as black-robed usurpers of democracy. Today, not so much. Ever since the seating of the Roberts court, the right has been pretty happy with high court's decisions, especially the outcome of Citizens United v. FEC, the case through which the court, in a decision handed down last year, opened the floodgates of corporate money into the electoral system.

No single justice has been more stalwart for the causes of the right - indeed, even the far right - than Justice Clarence Thomas, who, notes ThinkProgress, may just be the most ethically challenged justice since Abe Fortas was forced to step down from the court in 1969 for accepting tens of thousands of dollars from wealthy benefactors.

While Thomas does not appear to have accepted direct donations (though he has accepted gifts, and possibly luxury travel aboard private jets and a yacht), it is clear that the conduct of his relationships with the wealthy and powerful - and one magnate, Harlan Crow, in particular - present some pretty obvious conflicts of interest, especially in regard to the court's decision in Citizens United, in which Thomas sided with the majority in declaring corporate campaign funding to be constitutionally protected. Thomas could have recused himself from the case, but he did not.

A New York Times exposé published on June 19 detailed the role of Clarence Thomas' friend, real estate magnate Harlan Crow, in bankrolling a pet project of the justice's, the Pin Point Museum and Cannery outside Savannah, Georgia. Crow also funded a Savannah library dedicated to Thomas, and Thomas was given a bust of Lincoln valued at $15,000 by the American Enterprise Institute, to which Crow is a donor, and which files briefs in Supreme Court cases. But other aspects of Thomas' relationship with Crow are far more troubling, especially Crow's involvement in providing the seed money for the Tea Party group founded by Thomas' wife, Ginni.

Now, it appears that Ginni Thomas may have derived a direct benefit from the Citizens United decision. And that is not the only ethically troubling incident in the annals of the Thomases' professional lives, which we detail below. But if there's any one big lesson to be learned from the saga of Clarence Thomas and the sullying of the high court, it's that Supreme Court justices are not bound by the code of ethics that applies to other members of the federal bench; it seems they are not legally bound by any code of ethics at all. In the wake of the Thomas problems, that fact has led more than 100 law professors to sign a letter calling on Congress to make the ethics code for federal judges apply to those who grace the bench of the highest court in the land.

Because of this legal loophole, Thomas cannot be forced off the bench. But, for the sake of the republic he claims to love, he could step down - and should. (A Credo Action petition calling for just that is here.) At AlterNet, we've followed the antics of Thomas and his wife, Ginni, closely since the launching of her Tea Party-aligned advocacy group made news last year. Here we detail the reasons that Thomas must go - both for reasons of conflict, and for the appearance of Thomas' alignment with groups that have called for armed insurrection against the US government.

1. Conflict of interest - Citizens United and Liberty Central: In November 2009, just two months before the Supreme Court decision in Citizens United was handed down - but just after the case was argued before the court - Ginni Thomas incorporated her Tea Party advocacy group, Liberty Central, as a tax-exempt 501(c)(4). As an issue-advocacy organization that sponsors advertising and endorses candidates, Liberty Central stood to gain directly from the outcome of Citizens United. Assuming that Ginni Thomas drew a salary and/or expenses from the group, the onus on Clarence Thomas was to recuse himself from participating in the Citizens United case, which he did not.

2. Conflict of interest - Harlan Crow's bankrolling of Liberty Central: When AlterNet first reported on the launching of Liberty Central with Ginni Thomas at the helm, we noted that the group was formed with an initial donation of $500,000 by a then-unnamed donor.Politico has since revealed that donor to be Harlan Crow, a Dallas real estate magnate who is a major donor to political causes, and a good friend of Clarence Thomas - such a good friend that he bestowed upon the justice a Bible that once belonged to Frederick Douglass, a gift valued at $19,000.

3. Soliciting donations? Unanswered questions: The Times revealed that it was Thomas himself who suggested that Algernon Varn, owner of the Pin Point Cannery (where Thomas' mother once worked), hit up the justice's good friend, Harlan Crow. Varn told Times reporter Mike McIntire:

"And Clarence said, 'Well, I've got a friend I'm going to put you in touch with,'" Mr. Varn recalled, adding that he was later told by others not to identify the friend.

The land was subsequently purchased from Varn, to the tune of $1.5 million, by a real estate partnership run by Crow. If Thomas felt no compunction at sending Varn to seek backing, with his imprimatur, from Crow for what may have amounted, according to the Times, to $2.8 million in land and construction costs, it is not unreasonable to suspect it was Thomas' influence that compelled Crow to donate $500,000 to Ginni Thomas' organization. Clarence Thomas refused to answer questions submitted by the Times.

4. Calls for insurrection: If Crow's half-million-dollar donation to Ginni Thomas' Liberty Central were not troubling enough, there's Liberty Central itself. As AlterNet reported, at its inception Liberty Central was linked to two groups - the Missouri Sovereignty Project and Gun Owners of America - whose leaders called for the making of war on the US government, and one, Tradition Family and Property, whose leader called the Spanish Inquisition "a beautiful thing." Each of these groups were listed on the Liberty Central Web site as "Friends of Liberty Central." Liberty Central officials refused to comment on whether or not the groups had paid a fee or donation to Liberty Central in order to earn the listing.

If a justice of the Supreme Court solicited a donation for a group whose success not only would benefit the justice's own household, but is also linked to groups that called for war on the government whose constitution the justice is sworn to uphold, that should be enough to warrant his stepping down. (In the wake of controversy over Ginni Thomas' role at Liberty Central, she stepped down and Liberty Central merged with the Patrick Henry Center. Ginni Thomas then opened a lobbying shop called Liberty Consulting, run from the same address as Liberty Central - an address that turns out to be a mailbox in a UPS store, according to this video by Brad Blog.)

5. Conflict of interest - health-care reform: No sooner had the Affordable Care Act - the health-care reform law that set off the Obama administration's battle royal with the American right - passed into law than it became apparent that challenges to the law launched by Republican state attorneys general would likely make their way before the Supreme Court. Liberty Central opposed the bill, and appeared at a Tea Party rally sponsored by FreedomWorks calling for its repeal.

It's one thing for the spouse of a justice to be politically active on issues that may appear before the court, but quite another for a justice to solicit donations, whether implicitly or explicitly, for an organization headed by his spouse that advocates for cases that could appear before the court. At the very least, Clarence Thomas needs to account for his role in securing Liberty Central's $500,000 in start-up money from Crow.

6. Conflict of interest - Koch Industries fundraiser: In January 2008, Clarence Thomas addressed a fundraising gathering convened in Palm Springs, California, by Koch Industries, the privately held conglomerate helmed by Charles and David Koch, for major backers of the Tea Party movement and right-wing think tanks, including the Heritage foundation, for which Ginni Thomas worked for a number of years. Although, according to the New York Times, a court spokesperson described Thomas' appearance as "a brief drop-by," Thomas' own financial disclosure forms claim reimbursement for an undisclosed sum by the Federalist Society - an organization that receives Koch funding - for four days at Palm Springs.

Either way, the justice appeared at a gathering that is designed to raise money for right-wing institutions that advocate legal opposition to policies enacted by Congress and the Obama administration. Revelations of Clarence Thomas' appearances before the Koch gathering prompted Common Cause to launch a petition earlier this year, calling on the Department of Justice to investigate the involvement of both Thomas and Justice Antonin Scalia in the Koch Industries gathering. The Koch brothers, as both donors to and creators of right-wing institutions, were major beneficiaries of the Citizens United decision (in which Scalia, naturally, also sided with the majority).

7. Failure to disclose spouse's income: Taken alone, Clarence Thomas' failure to disclose, for 20 years, his wife's income from such right-wing institutions as the Heritage Foundation - which also files briefs for Supreme Court cases - might not be reason enough to demand his ouster from the court. After all, he did amend his disclosure forms to provide the relevant information once the "oversight" was reported in the media. But taken in aggregate with the other ethics breaches and questionable activities noted here, it simply adds more fuel to the fire.

8. Travel questions: Thomas has refused to answer questions about whether or not he has been treated to high-style gratis travel to speaking engagements on Harlan Crow's private plane and his yacht. The Times exposé reveals coincidences that suggest he has.

At a time when Americans' faith in their institutions of governance is at record lows, the continuing presence of Clarence Thomas on the Supreme Court undermines the very underpinnings of democracy. It's time for him to go.

To sign the Credo Action petition demanding that Thomas step down, click here.

Adele M. Stan is AlterNet's Washington bureau chief. Follow her on Twitter: www.twitter.com/addiestan.