THE CHALLENGE OF CLARENCE THOMAS (UPDATED)

“The Kept Judge” (1908) (h/t - James G. Fallows)

Like many liberals, I used to hold the Supreme Court in high regard: Brown v Board of Education (ending Jim Crow); Reynolds v Sims (“one man one vote” reapportionment); Miranda v Arizona (right to remain silent); Gideon v Wainwright (right to an attorney regardless of ability to pay); Griswold v Connecticut (marital privacy includes contraception); New York Times v United States (the Pentagon Papers case); Roe v Wade (do I have to say?)... the list goes on, but it becomes less frequent in the years after Earl Warren retired as Chief Justice, and even less frequent as his fellow Associate Justices retired.

In truth, looking at the history of the court going back to its founding in 1789, it is clear to see that the Warren Court was an aberration, the result of the political earthquake that was the New Deal, itself increasingly seen as a political aberration in the long scheme of politics in this country.

Today, I have no expectation of any good decision coming from the Supreme Court on any subject one can put before it. It has returned to being the court no progressive thought well of, the pre-1936 Supreme Court.

My contemporary opinion of the court began in 1992 with the appointment of Clarence Thomas to the Supreme Court, George H.W. Bush’s finger-in-the-eye to every believer in judicial competence and believer in the ideals of “justice” and “the rule of law.” And the event for which Joe Biden will never be able to apologize for sufficiently for his “go along to get along” beliefs that led him to alliances with people who wished him dead.

After 30 years of demonstrated incompetence and reliable right wing partisanship, we still have Clarence Thomas to thank for his unceasing efforts to illustrate the problems that come from the Supreme Court’s outsize power, its political isolation, its virtual immunity from public pressure, and how that inevitably makes such a body a magnet for corruption and influence- peddling.

Thanks to ProPublica, we now know that for over 20 years, Thomas was the beneficiary of lavish and expensive gifts, and sweetheart real estate deals, from Harlan Crow, a reclusive Texas billionaire with a long record of extensive support for Republican politicians and far right Conservatism Inc. Organizations, and the Federalist Society - the organization most responsible for the dire judicial situation we find ourselves in.

While the Supreme Court has gone out of its way to take the position that its members do not have to work under a formal Ethics Rules, as do all other federal judges and all federal employees, there was a law passed after Watergate that required even Supreme Court justices to report things like the gifts and trips, and favorable real estate shenanigans.

Thomas didn’t do so, and according to the one statement he has released following the publication of the first ProPublica article, “Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable. I have endeavored to follow that counsel throughout my tenure and have always sought to comply with the disclosure guidelines.”

So long as everything was “private” and didn’t involve people with “business before the court,” all was Okey-dokey. Thus he has posed in public as the most humble and unassuming of his fellow justices. While engaging in the kind of hypocritical corruption that boggles the mind to contemplate.

So despite the fact that all the expenses of his vacations, private jet travel, and gifts was actually paid by corporations controlled by Crow, so long as Crow himself “personally” invited Thomas to vacation on the yacht or travel extensively on his private plane or “personally” gave him Frederick Douglass’ bible, there was nothing to report because it was “personal hospitality.”

Lawyers are paid vast sums to carefully parse every word of anything they deal with, but Thomas’ parsing of the rules stretches the rubber band to the point it has finally snapped and popped him on his nose.

In return, Crow - who may not personally have his name on any case before the Supreme Court but who finances many organizations that have appeared before the court - turned that largesse into direct access to one of the nine most influential and powerful men in our government.

And the record shows that in all the cases brought before the court by Crow-financed organizations, Thomas voted in their favor whether in the majority or minority.

Every. Single. Time.

Not a bad trade.

If Thomas were any other federal judge, this would be the most obvious and flagrant violation of the judiciary’s code of ethics in the record book. But for the nine legal grandees of the Supreme Court, it’s an “ethics guidance list” as they police themselves as the honorable judges they are.

Excuse me, I have to run to the bathroom and get rid of breakfast after writing all of the above.

While Democrats like Representative Alexandria Ocasio-Cortez and Senator Sheldon Whitehouse, and a large number of their fellows in Congress, have called for investigations and even impeachment of Thomas, no one has any real expectation he will answer any questions about this conduct; he will certainly not face consequences for it so long as there is a majority of Republicans in the House and a filibuster-maintaining minority in the Senate, to protect “Our Clarence.”

What we have, again, is the result of a system created by men who thought everyone who would ever serve in the government they were creating would be as honorable and self-sacrificing as they were, and if they discovered anyone who wasn’t, they would naturally act to remove such an individual to protect the government created by the people they served, the politics of the situation be damned.

Looking back at the history of the Framers, one wonders how men who had been as involved in Actual Politics as they had been, could have been so damned naive.

Alexander Hamilton explained the reasoning that led to making federal judicial appointments “for life” in Federalist No. 78, “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.”

The problem as it exists today is that lifetime tenure has not raising any barrier to corruption; in fact, such a term of office makes it easier to influence the court because the parties interested in corruptly influencing the court have the time and space to operate, while the public veneration of the position of Supreme Court Justice - regardless of the opinion held regarding the specific occupant - makes it exceedingly difficult for “constitutional protections” to be used - perticularly when the political corruption that benefits the individuals involved also benefits the political party for whom they operate.

It turns out that the arguments made at the time by the anti-Federalist opponents of the Constitution were more prescient regarding this issue, particularly the writer pseudonymously known as “Brutus,” who wrote, “Every body of men invested with office are tenacious of power. The same principle will influence them to extend their power, and increase their rights and enlarge the sphere of their own authority.”

The Maryland anti-Federalist Samuel Chase - who became a diehard Federalist and the only Supreme Court justice to ever be impeached (1805, unsuccessfully) - wrote of the concept of the Supreme Court as advocated by Madison and the others that “Its members are too few, and its small size leaves it vulnerable to bribery and corruption. No free people ever reposed power in so small a number.”

Machiavelli, the most astutely realistic political theorist ever, wrote in “The Prince” of government as a whole, observing that, “the few always behave in the mode of the few.” From my study of history, that is probably the most true statement ever made about any system of government ever devised.

What differentiates what is supposed to be a constitutional, democratic, representative republic from Louis XIV who proclaimed “L’etat, c’est moi!” is that the few are supposed to be accountable to the many, and be removable when their actions are found “wanting” of republican virtue.

The most casual review of the 234 years of Supreme Court history shows that - even with the Warren Court - in the overwhelming majority of cases, the ones that do not make it into the headlines, and leave all but Subject Matter Experts on the particular topic nodding off with their eyes glazing over as they try to read any of these decisions, the court has ALWAYS been a reliable friend of property, capital and class rule, the bouts of Warren Court decency and the few other “inconsistencies” notwithstanding. It was the Supreme Court that turned the Fourteenth Amendment on its head to support capital over labor and political oppression over freedom for the first 100 years the amendment was part of the Constitution.

As the court has become more powerful as it has become more acutely ideological and partisan, and its members grow contemptuous of public opinion along with their fellow conservatives, it naturally attracts those who will do anything to achieve their goals.

Clarence Thomas’ close ties to a powerful, property-owning billionaire, is merely the most obvious illustration of Supreme Court’s historic role in politics: not as the liberator who would vote in favor of any of the decisions listed here at the outset; his votes rather demonstrating over 30 years that he never would be a defender of the rights of political and social minorities. He has been a full-throated ally and partner of the moneyed interests that have always been in opposition to what the Framers thought they were creating.

Thomas’ career demonstrates how the real world of corruption works. It is hardly ever the cartoonish quid pro quo of cash changing hands. In the vast majority of instances, corruption looks like a friendship in which the friend freely gives personal gifts, extends “personal hospitality,” the way friends do. Except that the one giving wants to influence a decision by the one receiving. Where both parties share a similar worldview, there aren’t even any discussions or explanations necessary.

Those of us who had high school civics classes - something increasingly less likely the younger one is - where we were taught that laws in the United States are legitimate because they apply equally to everyone. Unfortunately, this has never been true. As Anatole France put it (sarcastically): “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

I once had the privilege of knowing a very formidable man, Los Angeles Superior Court Judge Charles Older; once the leading ace of the Flying Tigers in World War II, he was a tiger in all things. Rather than incur even the slightest of his displeasure, when I had occasion to visit him, I would stand on the porch and check my watch to be certain that I pressed the door bell at exactly the minute we had agreed to meet. Lawyers I have known said of him that only a fool would ever even think of doing anything even slightly off-kilter in his courtroom. He was best-known for the first case he had after appointment to the Superior Court in 1972: the Manson Family Murders. We once discussed the interconnection of the law and politics, and he observed that, “With some exceptions, all judges are political bootlickers; it’s how they get there.” I demurred, specifically referring to his own career; he responded “You think I didn’t kiss Ronald Reagan’s ass? It was just fortunate that over the years we were friends that we had opportunities to disagree and still realize we liked each other.” Too many other judges whose decisions I have watched, from traffic court up, proved the truth of Judge Older’s statement.

Back in the David Frost interview 46 years ago, former President Nixon argued that “When the president does it, that means that it is not illegal.”

If Congress cannot do anything regarding Clarence Thomas and his in-your-face heedless corruption, not just with Harlan Crow’s vacations and air travel but with all the others who do in fact exchange money with him for his decisions - through donations to Ginni Thomas’ political activities - then Nixon’s statement will describe the Supreme Court. We can no longer even idealistically believe in equal justice under law.

This is not how a republic should work. Leaders, whether elected or appointed, should be shackled by their power, rather than be free to abuse it for their own interests and pleasures.

If they won’t voluntarily act in the spirit of Judge Charles Older, as envisioned by the Framers, then they must be made to do so.

James G. Fallows notes in his post on this topic:

“Good ideas exist for reforming the court. They include:

“Changing the luck-of-longevity life-tenure system to fixed terms of 18 years, staggered so that every president would get a nomination every two years. In its influential Our Common Purpose report, the American Academy of Arts and Sciences explained why this makes sense, and could be done without Constitutional change.

“Apply the conflict-of-interest, financial-disclosure, and ethics rules that govern all other levels of the judiciary to the Supreme Court itself. They have no claim on anyone’s trust.

“Expand the Court’s size. This is not a Constitutional matter. Over the years the Supreme Court has had six members, and five, and ten, and seven, and now nine. The number is not sacrosanct—or unchangeable, like the imbalanced makeup of the Senate. A nine-member Court that had maintained trust would be ideal; a larger Court is better than one that has given away its legitimacy.

“The GOP legal establishment has placed six members on the current Supreme Court, even though GOP presidential candidates have lost the popular vote in every election but one in the lifetimes of most American voters.

“From 1992 to the present, Democratic candidates have won the popular majority in seven out of eight national elections: Bill Clinton twice, Al Gore, Barack Obama twice, Hillary Clinton, Joe Biden. A Republican candidate has done so only once, George W. Bush in that 2004 race.”

The Democratic Party must abandon its squeamishness about challenging and shaping the Supreme Court and the federal judiciary. Whether by merely passing an enforceable ethics code or changing the number of justices, the Supreme Court must be brought back around to where it serves the republic, and not the other way around.

That is not a simple project. It requires hard work in 2024, which is a damned difficult year for Senate Democrats to retain their majority, given that a majority of those up for re-election are Democrats, with several standing for re-election in very inhospitable political environments in their home states.

Even getting to the point where a “carve out” in the filibuster rules can be made regarding decisions about the courts will require every Democrat getting re-elected, or Republican seats flipped to make up for any loss, with at least two additional Republican seats flipped to give an “operational majority” for such a move by the Senate Majority Leader. That’s a heavy lift, as they say. And it requires that the Republican House majority be defeated. It requires the re-election of Joe Biden.

We have to do all of that, or nothing happens.

2024 is a more consequential election than was 2020 or 2022. And it will be more difficult than both of them combined.

But it can be done.

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