Clarence Thomas is taking one for the team

Did Clarence Thomas do anything wrong in accepting gifts from a wealthy Republican? Or is he the victim of years of pent-up anger at the Supreme Court by Democrats?

Yes.

According to an investigation by ProPublica, for more than twenty years, Justice Thomas received lavish and expensive gifts, including trips on a private yacht and a private jet, from Harlan Crow, a Texas billionaire and real estate developer with a long record of support for Republican politicians. Under the ethics regulations that guide Supreme Court justices, it is not clear that Thomas had to report any of this. (Thomas says the guidance he received affirmed he did not need to report any of the gifts as his angel, Crow, had no business before the Court and the trips were “personal hospitality” — a gift from a friend.)

ProPublica asserts that the Ethics in Government Act of 1978 required Thomas to report these gifts. This is probably untrue. People do not report “personal hospitality,” such as Thomas’s vacations. It wasn’t until a few weeks ago that the Judicial Conference issued new guidelines saying free trips and air travel must now be reported. This was announced as a change in policy, meaning disclosure was not required in the past but would be in the future. It is as simple as that.

So it appears that while Thomas did not break the letter of these regulations, he certainly skirted the edge of what we’ll call propriety — the appearance of being on Harlan Crow’s extended payroll. For a guy who has lived so long in Democratic crosshairs. it seemed an unwise thing for Thomas to do, even if it was legal. One theme of government ethics classes is you don’t just have to demonstrate actual impropriety; you must avoid even the possible appearance of impropriety. Accepting lavish travel perks (or operating your own email server) is just not what regular feds do.

Thomas’s long war with the left started with his confirmation hearings in 1991 after his nomination by President George H.W. Bush. Anita Hill, who worked for Thomas at the Department of Education and the Equal Employment Opportunity Commission, testified before the Senate Judiciary Committee that Thomas had sexually harassed her. Her testimony ignited a national conversation about sexual harassment in the workplace and the treatment of women in the legal profession. It introduced many Americans to the vocabulary of pornography long before Bill Clinton soiled the waters (small world: Senator Joe Biden was then chair of the Senate Judiciary Committee, which oversaw the confirmation process. Biden has faced criticism for his sexist handling of Hill’s testimony and for not allowing three other female witnesses to testify.)

As a jurist, criticism of Thomas has focused on three points. Many liberals disagree with his conservative judicial philosophy, which emphasizes originalism and strict interpretation of the Constitution. They argue that this approach leads to narrow interpretations of individual rights and protections, particularly for marginalized groups. Similarly, liberals criticize Justice Thomas for his opposition to affirmative action and other civil rights policies. They argue that his views on these issues are harmful to communities of color. Lastly, Thomas is known for being one of the least vocal members of the Supreme Court, rarely asking questions during oral arguments or engaging in public discourse about his opinions. Some liberals argue that this makes it difficult to understand his reasoning. There are accusations that he often makes up his mind along ideological lines before even hearing a case.

Thomas has more recently become a lightning rod for everything Democrats have come to hate about the Supreme Court, as the Court has shifted rightward and Roe v. Wade was overturned. They see Thomas’s “corruption” as emblematic of the Court’s outsize power due to lifetime appointments, isolation from traditional constitutional checks and balances, and virtual immunity from public pressure, making it a magnet for corruption and influence-peddling. They see Harlan Crow as having purchased direct access to one of the most influential and powerful men in America and argue that while Crow may not have a specific issue in front of the Court, he holds a generic interest in right-wing causes and thus has bought himself a sympathetic judge for his broader conservative agenda.

Things only got worse when it was discovered that Thomas’s spouse Ginni donated to Republican causes and sent texts cheering on the protests of January 6. A woman with political thoughts of her own!

The only real check and balance on Supreme Court justices is formal impeachment and removal from the bench, so it’s not surprising that at the first sign of impropriety Democrats like AOC immediately called for Thomas to be impeached. It won’t happen: the standards for impeachment are high, whether what Thomas did actually qualifies is far from clear, and a partisan Congress will never go along with it. Only one Supreme Court justice has ever been impeached: Samuel Chase, in 1804, for alleged political bias in his judicial conduct. The Senate held a trial, but ultimately acquitted Chase of all charges. In addition, Justice Abe Fortas did resign more than fifty years ago over money issues, ahead of a likely try at impeachment.

Some have already gone further than the expected calls for hearings and investigations. The New Republic writes, “The Democrats need to destroy Clarence Thomas’s reputation. They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.” The magazine went on to call him the “single worst Supreme Court justice of all time. Clarence Thomas is an embarrassment to the Supreme Court and the country, and the worship of this man on the right is one of the greatest symbols of their contempt for standards, the law, precedent, and democracy.”

The hyperbole gives it away — this is another tempest to fill the dead space between Orange Man Bad stories. Thomas should not be proud of his actions, but nor should he face impeachment, never mind some sort of public drawing and quartering of his reputation. Clarence Thomas is taking one for the team.