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Trips on luxury yachts and private planes, nine days of island-hopping through Indonesia, getaways to a Texan ranch, vacations in a mountain mansion and a Bible worth $19,000 that belonged to abolitionist politician and writer Frederick Douglass. What better gift than that for a Black, pious, and ultra-conservative Supreme Court justice?
Harlan Crow, a real estate magnate, Republican Party donor and family friend, paid for these gifts to Supreme Court Justice Clarence Thomas and his wife Virginia Ginni Thomas. Justice Thomas, for his part, never declared having received these presents, something he is required to do. The gifts are so lavish that — after being revealed in a ProPublica investigation — they have put the spotlight on more than just the ethical violations committed by Justice Thomas; they have also reopened a debate about who influences and controls the members of the Supreme Court, nine untouchable men and women elected for life and whose decisions shape the society they serve.
New details have emerged in recent days, worsening the scandal plaguing the nation’s highest court. The Dallas real estate billionaire Crow also paid tuition for Justice Thomas’ grandnephew for two years at two private boarding schools, for a total of $6,000 per month. Additionally, a conservative activist named Leonard Leo agreed to remove Ginni’s name from compromising invoices dating back to 2010 and 2011 in payment for consulting work done by her.
Clarence Thomas, who is paid $285,000 a year, has defended himself by saying that this is what “close friends” do for one another and that he was not obliged to disclose the gifts, given that Crow had no business with the Supreme Court.
Beyond the fact that it later became known that Thomas and Crow’s judicial paths did cross briefly in 2005 over a copyright dispute involving one of the tycoon’s companies, the events have aired the uncomfortable intimacy between a Supreme Court judge and a “politically connected” citizen, according to Alicia Bannon, an expert at New York University’s Brennan Center for Justice.
Thomas did not comply with the obligation of transparency, according to Barron. “And one of the things that is supposed to guide judges is that they’re supposed to avoid creating even an appearance of impropriety, an appearance of anything that could make people lose confidence in the fairness of the court. And I don’t think that this kind of conduct is consistent with that overall value,” she added.
“This news has tarnished the reputation of an already damaged Court that is facing its lowest public approval in the modern era,” said Paul Collins, a University of Massachusetts law professor and author of three books on the progressive politicization of the high court. Only four out of 10 Americans approve of the work done by the institution, according to a Gallup poll.
The Senate Judiciary Committee convened a hearing last Tuesday to discuss judicial ethics rules that ended in another acrimonious debate between the two parties for lack of anything better to hold on to: Chief Justice John Roberts declined the invitation to appear before the panel, citing that it is “exceedingly rare” for justices to testify before Congress about anything other than annual appropriations. He pleaded “separation of powers” and “the importance of preserving judicial independence.
Democrats have called for a stronger oversight of the institution. Meanwhile, Republicans, who see the accusations against Thomas as a smear campaign by the left-wing press, blame it all on what they call progressive dissatisfaction with recent decisions by a court with a conservative majority unseen since the 1930s. The rulings include issues like abortion rights, gun control or climate change.
Beyond becoming another political battle on Capitol Hill, the Thomas scandal has suddenly also opened the floodgates to scrutiny of his colleagues. Liberal Justice Sonia Sotomayor is being criticized for failing to recuse herself in two cases involving her publisher, Penguin Random House, from which she has received $3.2 million over the years. Conservative Justice Neil Gorsuch has also been criticized, in his case for having sold a property he had been trying to sell for years in Colorado just days after being elected to office. The buyer? The CEO of Greenberg Traurig, one of the largest law firms in the country and a frequent litigator before the Supreme Court.
The scandals have also served as a reminder that there is almost nothing new under the sun in Washington. “Justice Thomas’s indulgence is just the latest and most egregious example of a weakness demonstrated by virtually every member of the court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts and junkets — both costly and modest — from people and groups who find it useful to be close to nine of the most powerful people in the United States,” said The New York Times in an editorial. The Times also pointed out that a distinction must be made between what’s illegal and what’s morally reprehensible and damaging to the court’s reputation.
“These things happen because Supreme Court justices refuse to abide by a standard of ethics, unlike essentially every other judge and politician in America,” said Collins. “There are very few rules of conduct for the Supreme Court. For instance, there is no code of ethics that they must follow. Instead, they claim they consult a wide range of sources to guide their behavior, but none of this binds their behavior,” the professor added.
In his defense, Thomas argued that he had sought “guidance” from “colleagues and members of the judiciary” and was told that gifts from close personal friends with no matters pending before the court were not reportable.
Justice Roberts’ responsibility
In the midst of the storm, eyes have turned to Roberts. “It’s clear to me that John Roberts has lost control of his Court,” said Collins. “If the Chief Justice were a true leader, he would be willing to talk to Congress in public about these problems and help form a solution. Instead, if he’s doing anything at all, he’s doing it behind closed doors,” he added. Bannon, for her part, considers that Roberts is doing what he usually does: “He’s essentially told the political branches of government, told Congress and the president, ‘you just need to trust us. We can take care of it, we can handle our own house.’ And I think increasingly it’s clear that that trust hasn’t been earned.”
The image of a house in order that Justice Roberts wants to project is not helped by the fact that the biggest enigma in the court’s recent history remains unsolved: they still have not found the culprit behind the historic leak of the draft of the ruling that ended federal protection of abortion rights last June. Samuel Alito, who drafted the ruling, recently gave an interview to The Wall Street Journal’s opinion editor, James Taranto, in which he said he has “a pretty good idea” of who did it. Taranto has in recent weeks provided his dissenting viewpoint with a series of articles, including an interview with the Crow donor, denouncing an attack by the left on the Supreme Court’s ethics to tarnish its reputation.
Collins and Bannon agree that the latest scandals should serve to profoundly reform the court. “We need to take the Supreme Court off its pedestal and stop treating the justices like celebrities. Instead, they should be thought of as civil servants that are subject to the same ethical standards as other members of government,” added Collins, who proposes as a long-term solution “instituting an 18-year term” limit for judges, who can now only be removed by impeachment. Such a change would not be easy: it would require a majority of votes in the House of Representatives and, by virtue of the filibuster, 67 of the 100 senators to agree on something for once. At present, that is a pipe dream.
Proponents of such a limitation believe it would ease the appointment and confirmation process in the Senate. So much is at stake when naming a justice who will serve for life, especially because each president names someone who shares the same ideological current. “Since the late 1980s, these proceedings, which used to be normal, honest and open, have become real pitched battles,” said Joshua Prager, author of The Family Roe, a book about Roe v. Wade, perhaps the most famous case in the history of the Supreme Court, which set the 1973 precedent on abortion that was overturned last year.
The election of Thomas in 1991, during which Anita Hill, a former staffer, accused him of sexual harassment before a hostile committee, marked a before and after in the process of naming Supreme Court justices, escalating the process to an all-out political showdown. In 2005 came Roberts’ turn, who back then uttered a phrase that would go down in American history: “Judges are not politicians who can promise to do certain things in exchange for votes.” It is one of those boomerang phrases. The certainty that politics has long since crept into the Supreme Court is one of the few things most Americans can agree on.
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