Ms. Lois Eisenberg’s latest letter (June 6) concerning Justice Clarence Thomas asserts that he is corrupt, in reply to letters addressing her earlier accusations of corruption, which asserted specific allegation of misconduct, to which the letters from Messrs. Brian Richards and Bob Comer responded by disputing the specific allegations (e.g. the allegation that he failed to report income, when in fact the income had been reported but under a somewhat different name, as a result of a change in entities from an LLP to an LLC).
Her current letter engages in tautology — asserting that Justice Thomas is “corrupt” because other people say he is, relying on statements made by left-leaning publications that provide no examples, but simply assert that Justice Thomas is “corrupt.”
Ms. Eisenberg’s assertion of corruption, and presumably that of her cited news media, are based in two activities: 1. The non reporting of “gifts” from Justice Thomas’ personal friend Harlan Crow; and 2. his asserted failure to recuse himself in cases involving his wife’s political activities.
The question as to the first is a simple. Was Justice Thomas required to report these “gifts”? Justice Thomas has explained that when the issue first arose, approximately a decade after his appointment, he sought advice from other justices and other individuals and was told that he need not report the “gifts.” That was correct advice. The two sections involved are the 1978 Ethics in Government Act and the 1989 Ethics Reform Act. The 1978 act requires reporting of all gifts, in excess of a minimum value, “received from any source other than a relative … except any food, lodging or entertainment received as personal hospitality of an individual,” which “need not be reported.”
The 1989 act essentially bars government officials, including justices, from accepting “anything of value from a person” having business before the court. However, the regulations exclude from “anything of value” “social hospitality based on personal relationships.” The regulations define “social hospitality to include food, lodging, entertainment and travel.”
There is no issue that Justice Thomas and Mr. Crowe are friends, and so each of these exceptions apply to the hospitality Mr. Crowe provided his friends Justice Thomas and his wife Ginni.
It is also worth noting that Ms. Eisenberg’s comment concerning Justice Elena Kagan is interesting, but adds nothing to this discussion.
As to the assertion of recusal in cases involving Ginni Thomas, nowhere does the letter set out any litigation that has come before the court in which Ginni Thomas was a party, and I am unaware of any. Perhaps Ms. Eisenberg would enlighten us? If, and when, such a case arises, I assume that Justice Thomas will recuse himself.
In her earlier letter Ms. Eisenberg compared Justice Thomas to Justice Abe Fortas, who was appointed by Lyndon Johnson in the 1960s, revealing a complete lack of understanding about Justice Fortas’ resignation. In Justice Fortas’ case he was a close personal friend of LBJ who nominated him as an associate justice in 1965. After his confirmation he continued to advise LBJ on judicial nominations, discussed private Supreme Court deliberations with him, attended White House staff meetings and assisted in the preparation of LBJ’s State of the Union address. His resignation followed the revelation that he had been retained by Louis Wolfson, a Wall Street financier, in 1966, under the terms of which he was to be paid $20,000 a year for his lifetime, and after his death his wife was to be paid for her lifetime, for unspecified legal advice.
At the time Wolfson was under investigation by the Securities and Exchange Commission. He was later charged and convicted. Wolfson acknowledged that the retainer was intended to affect the SEC investigation. After the retainer was revealed, Justice Fortas returned the money, and recused himself from hearing the Wolfson litigation.
Justice Fortas’ activities with the LBJ administration were a shocking revelation, as they crossed a clear line between the judicial and executive branches, but the payment of a retainer for “unspecified” legal services was simply beyond the pale — a sitting judge, much less a sitting justice, should never accept a retainer for legal services, especially from someone who has legal business, here criminal charges, before federal agencies and courts.
As for Harlan Crow, no one has asserted that Mr. Crow nor any entity controlled by him has ever had a case before the court at any time during Justice Thomas’ service, and thus have not demonstrated any conflict of interest. Mr. Crow has stated he has never spoken with Justice Thomas about any legal matter, and the vacations were vacations with friends, and he never intended to influence any judicial decision.
Justice Thomas’ “crime” insofar as the left is concerned is that he does not agree with the legal theory of “substantive due process” which allows the court (or rather five justices) to create rights not enumerated in the Constitution, as the court has done in Griswold, Roe, Lawrence, Obergefell and other cases. It is a serious legal issue. It deserves a serious legal discussion, not ad hominem attacks. To demonstrate how unserious the left is in these attacks on Justice Thomas, they assert that he excludes Loving v. Virginia from the pantheon of cases he would overrule, because his wife Ginni is white. What they ignore is that the court in Loving struck down Virginia’s anti-miscegenation statute as a violation of the equal protection clause of the 14th Amendment, not on the basis of substantive due process.