Chief Justice Rejects Senators' Request on Supreme Court Ethics

The Supreme Court will not formally adopt the judicial code of conduct that governs the actions of other federal judges, says Supreme Court Chief Justice John Roberts. He thus rejected a request by Democrats on the Senate Judiciary Committee who are concerned about lack of oversight. Roberts, below, continued his stonewalling on the issue by writing a one-paragraph letter explaining that he has already explained in his year-end report that the judicial Code of Conduct does not apJohn Robertsply to the Supreme Court.

As we reported at the time, Roberts released his report at 6 p.m. on a Saturday night during the New Year's Day weekend on Dec. 31 saying that the court's members are “jurists of exceptional integrity and experience.” Therefore, Roberts wrote in his whitewash, they do not need an enforceable code to follow ethical principles. Roberts claimed that a code would violate the Constitution's separation of powers language even if it were self-enforcing.

The chief justice's letter went to Senate Judiciary Committee Chairman Patrick Leahy (VT). Leahy and four other Democrats had urged Roberts to adopt a code if the justices, as claimed, are already are following it. As background, more than 50 Democrats in the House minority have urged without success for their House Judiciary Committee colleagues to launch an impeachment inquiry for Justice Clarence Thomas, a Republican like Roberts.

Over the years, Thomas falsified his sworn annual judicial disclosure statements by omitting some $1.6 million in money and gifts, most of it to his wife, Virginia, for advocating conservative policies. Click here for chart of Justice Thomas’disclosure forms. Click here to read Common Cause’s statement prepared for Senate Judiciary Committee hearing. Thomas has ignored requests for comment aside from occasional and largely oblique denials of irregularities.

Meanwhile, a House Committee Republican chairman is creating controversy by oversight hearings on many other issues. Also, a lower court federal judge in Washington dismissed charges in a major major federal investigation of foreign agents allegedly engaged in corruption. See details below.

Roberts brushed off the Senate Democrats even though their letter was timid, if not vague, given the high stakes at issue. The facts are deeply shocking, thoroughly documented -- and yet almost unknown aside from specialists in law and court reform activists:

Virginia Thomas planned to lead a consulting non-profit, Liberty Central, that received a $500,000 donation in 2009 from tycoon Harlan Crow to help business groups implement the Citizens United v. Federal Elections Commission decision in 2010. Her husband provided a vital vote in the 5-4 decision that transforms United States politics by citing the Constitution to establish free speech protections for corporations under the Republican majority's theory that the nation's Founders wanted corporations to enjoy freedoms similar to those of individuals. The court's ruling removed many restrictions on corporate donations in federal elections. The court's ruling has helped transform the 2012 elections into an arena for corporations and billionaires to extend their already vast influence over government policy. Las Vegas casino magnate Sheldon Adelson, for example, said this week that he might increase his $10 million in current donations to Newt Gingrich's Presidential campaign to $100 million.

Thomas voted for Citizens United in 2010 after his wife was already planning -- as indicated by the Harlan Crow donation in 2009 -- to take advantage of the decision by, in effect, "insider-trading" on her presumed knowledge that her husband's political allies from Citizens United would win when the public learned the following year about the verdict.

That's not the only shocking aspect of the decision. Her husband should have recused himself for a blatant conflict of interest because Citizens United ran the television ad campaign in 1991 against Senate Judiciary Democrats to shame them into voting for his lifetime appointment.

Last year, Common Cause and then Protect Our Elections exposed Thomas as lying for years about reportable household income on his sworn statements, which are intended to alert the public to potential conflicts of interests by judges. Thomas amended his financial disclosure statements a year ago after the revelations, and has claimed that any criticism is politically motivated. The justices have maintained that they are each responsible for their own decisions on ethics and recusal, and neither outsiders nor the court itself should have the right to second-guess them. The Roberts letter continued that stance.

Lillian McEwenLast fall, DC Unmasked and Undressed author and retired federal judge Lillian McEwen, right, a counsel for the Senate Judiciary Committee during the 1980s, told me that Thomas repeatedly described porno actor Long Dong Silver to her during their five years of dating in the early 1980s. This was the same porno star -- obscure, if not unknown in most circles -- that Senate witness Anita Hill swore typified the sex-related harassment that Thomas initiated with her when she worked for him in two posts. The first was when Thomas worked at the Reagan Administration's Department of Education. The second was when Thomas chaired the Equal Employment Opportunity Commission overseeing sex and other job bias complaints throughout the nation.

During the Thomas confirmation hearing in 1991, Senate Judiciary Committee Republicans viciously attacked Hill. Democrats, including then-chairman Joe Biden, generally let their GOP colleagues pump up Thomas and denounce Hill. She was a reluctant witness who had moved from federal work to teach law at the University of Oklahoma. Under pressure from Republicans for a prompt vote on Thomas, Senate Judiciary Committee Democrats also refused to call other witnesses for public testimony that could have supported Hill, partly because Biden and two of his colleagues were under Citizens United television attacks for scandals in their pasts.

Hill’s evidence on the pornography point has recently been buttressed by McEwen in her book, on my radio show Sept. 22 and at the National Press Club in a lecture Oct. 26. At the lecture, McEwen, a former federal prosecutor and law professor as well as retired U.S. Securities and Exchange Commission judge, called for the impeachment of Thomas for repeatedly lying on forms she says every judge in the nation knows must be filled out honestly under oath.

Thomas denied Hill’s porno claims in 1991. But my reading of the evidence shows that he clearly perjured himself to win his lifetime Supreme Court appointment by a 52-48 Senate vote.

 

Supreme Court

As with Thomas, financial backers of the justices typically show their appreciation through book contracts and junkets. Job offers or other payments to relatives of the justices are another favored route since any money can be rationalized as well-deserved. The system works well, in part because the justices are skilled in describing their work in pious terms and rarely criticize each other, aside from jousting over legal theory. Even more important, the most influential law professors, law firms and other legal analysts do not want to antagonize such powerful officials and their political supporters.

Patrick LeahyThe letter by five Senate Democrats urged the court to adopt a code if, as claimed, justices already follow one. “We hope to increase public trust and confidence in all of our institutions, including the Supreme Court,” wrote Leahy, shown at left, along with Dick Durbin (IL), Sheldon Whitehouse (RI), Richard Blumenthal (CT) and Al Franken (MN). As indicated by Leahy's letter, today's Democrats tend to be deferential and otherwise in raising questions about government corruption and waste  even though their predecessors in 1978 created the once-vibrant Inspector General system of rooting out such problems in the federal government. Democrats obtained just five signatures for their Supreme Court ethics letter, which said defensively that they “do not intend to question or impugn the ethics of any individual Justice” by their request. A spokeswoman for the Democrats on the Judiciary Committee wrote me today that Leahy is unavailable for comment on the matter because he is out of the country on a trip.

Darrell Issa In related news, the Washington Post reported (Rep. Issa has been busy as oversight panel) that House Republicans under California Congressman Darell Issa, right, are continuing aggressive investigations alleging waste and corruption in government. "Issa issued 22 subpoenas and published 11 investigative GOP staff reports, and the panel sent 748 letters seeking information from the White House and federal agencies in his first year, according to the panel’s records," the Post reported, continuing:

Some Issa hearings have had their share of drama. Last week, Democrats walked out of a session when Issa blocked testimony from a woman who supported the Obama administration’s decision to require insurance companies to pay for the contraceptives of employees at faith-based institutions that object to them. Issa said the Georgetown University law school student did not have the appropriate credentials to testify at a hearing regarding perceived threats to religious freedom.

One issue, however, that has earned the chairman and his panel bipartisan kudos — and significant headlines — is the Department of Justice’s “Operation Fast and Furious” gun debacle.

In other justice news, the Post reported, Charges dismissed against 16 accused of bribing foreign official in sting. It continued:

A federal judge on Tuesday dismissed all charges against more than a dozen people accused of bribing a foreign official in a high-profile Justice Department sting that has suffered setbacks in court. In a sharply worded ruling from the bench, U.S. District Judge Richard Leon of the District’s federal court applauded federal prosecutors for seeking dismissal of the charges but also criticized them for engaging in what the judge called a “long and sad chapter in the annals of white collar criminal enforcement.”

 

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Selected News Reports Referenced Above

Justice Integrity Project, Chief Justice Whitewashes Courts on Ethics Scandals, Andrew Kreig, Jan. 1, 2012.  The federal courts function honestly, according to the annual report on the federal judiciary that Supreme Court Chief Justice John Roberts issued Dec. 31 in the middle of the New Year's holiday weekend. Noting at the outset the disgrace that bribery brought to baseball in 1919, the Republican Roberts boasted that the federal judiciary needs no reforms because its members seek to address their duties in an ethical manner.

Justice Integrity Project, Breyer Reviews History, Skimps on Thomas Disputes, Andrew Kreig, Oct. 28, 2011. The Supreme Court fulfills its vital role in preserving democracy by earning public confidence, as Justice Stephen Breyer told a packed hall last week in Washington, DC. But his lecture and book, Making Our Democracy Work, glossed over current controversies, such as the "Virginia and Clarence Thomas Bought by Billionaires" ad shown above, which was released this week by the progressive group Protect Our Elections. Headlined, Clarence and Virginia Thomas...Bought by Billionaires. Crow is portrayed in the ad between the Thomas couple, with David Koch at right. Virginia Thomas obtained $500,000 in November 2009 from real estate mogul Harlan Crow, according to documents now public. The documents show that promptly after the Supreme Court announced its Citizens United decision in January 2010 she created Liberty Central, a 501 (c-4) organization that would pay her $495,000 in salary to lead a group that would help corporations perform effectively under the wide-open election system the court put in place nationally.

Clarence and Virginia Thomas...Bought by Billionaires

Washington Post, Chief Justice Roberts rejects request for code of conduct, Robert Barnes, Feb. 21, 2012. Chief Justice John G. Roberts Jr. told a group of Democratic senators that the Supreme Court is not going to formally adopt a judicial code of conduct that governs the actions of other federal judges.

Washington Post, Charges dismissed against 16 accused of bribing foreign official in sting, Del Quentin Wilber, Feb. 21, 2012. A federal judge on Tuesday dismissed all charges against more than a dozen people accused of bribing a foreign official in a high-profile Justice Department sting that has suffered setbacks in court. The judge said, “I, for one, hope this very long, and I’m sure expensive, ordeal will be a true learning experience for both the [Justice] Department and the FBI.” The judge reiterated concerns that he had expressed during two trials about “how this case was investigated and conducted.” The judge specifically criticized how prosecutors handled evidence, managed their key informant and pushed an “aggressive” interpretation of conspiracy charges.

Washington Post, Rep. Issa has been busy as oversight panel, Ed O'Keefe, Feb. 21, 2012. Rep. Darrell Issa is trying to make good on his promise to keep close tabs on the Obama administration. But for every line of inquiry that led to a public hearing or legislation, administration supporters and critics alike complain privately — White House and agency officials especially fear upsetting the chairman — that many of the efforts by Issa’s staff resulted in no follow-ups, no hearings or no reports. Essentially, some complain, there have been too many instances in which there was more show than substance.

Huffington Post, Chief Justice John Roberts' Defense Of Supreme Court Ethics Doesn't Soothe Critics, Mike Sachs, Jan. 5, 2012. Chief Justice John Roberts used his annual year-end report to defend his colleagues' integrity, but that defense did not move prominent critics clamoring for the justices to abide by the same ethical rules as other federal judges do. In the 16-page report, released on Saturday, Roberts rebuffed calls for the U.S. Supreme Court to adopt the Code of Conduct for United States Judges -- which binds lower courts but not the high court -- and pushed back against partisan demands that Justices Clarence Thomas and Elena Kagan recuse themselves from what may be the term's most controversial conflict, the health care cases slated for oral argument in March.

Huffington Post, John Roberts on Ethics: Move Along, Nothing to See Here, Nan Aron, Jan. 4, 2012. This is going to be a big year for the Supreme Court. Its decisions will be intensely scrutinized and will precipitate profound disagreements in American society, no matter which way they go. If there ever was a time for the Court to buttress public confidence in its propriety and objectivity, this is it. With that in mind, Alliance for Justice recently called on Chief Justice John Roberts to use his annual Year-End Report on the Federal Judiciary to address the growing calls for reform of the Supreme Court's ethics rules. Last week, the Chief justice did just that, proving that public concern about some justices' behavior is starting to penetrate the marble firewall around the Court. That's a good thing. Unfortunately, in spite of substantial evidence to the contrary, the message from Roberts is that he sees no ethics problem at the Court and that no reforms are needed or desirable. Besides, he inferred, no one can make rules for us anyway.

Justice Integrity Project, 52 House Dems Seek Thomas Impeachment Probe, Andrew Kreig, Nov. 21, 2011. The movement to investigate Supreme Court Justice Clarence Thomas Slaughter for impeachable offenses continues to gather momentum even as he thumbed his nose at critics in recent days by fund-raising for ultra-right critics and presiding over a celebration of his own heritage orchestrated by one of his billionaire financial supporters.

Antonin Scalia and Clarence ThomasCommon Cause, Hours after considering challenges to health care reform, Supreme Court justices are honored at fundraiser sponsored by law firms representing reform opponents, Mary Boyle, Nov. 14, 2011. Hours after considering whether to hear challenges to national health care reform, Supreme Court Justices Clarence Thomas and Antonin Scalia were honored Thursday at a fundraiser sponsored in part by law firms engaged in the litigation. This is an apparent breach of ethical standards that apply to every other federal judge. That morning, all nine justices met to review appeals from lower federal courts. Their agenda included a lawsuit challenging the constitutionality of the Affordable Care Act, which the court announced today it would hear this term. A few hours later, Scalia and Thomas were honorees and speakers at an annual fundraising dinner for the Federalist Society, which describes itself as “conservatives and libertarians interested” in the law.

Justice Integrity Project, Cain's 'Lynching' Defense Problem...Thomas Lied, Andrew Kreig, Nov. 7, 2011. GOP Presidential candidate Herman Cain describes himself as a victim of a "high-tech lynching" -- not a playboy chasing women on his staff, as four have claimed, most recently on Nov. 7. Cain’s “lynching” defense is modeled on the one his friend, Clarence Thomas, used so effectively in 1991 to deflect sexual harassment charges from Anita Hill and thereby win a lifetime appointment on the Supreme Court. Cain's ad has helped him raise $1.2 million in the past week, he told CNN, and buttressed his support among conservatives.

Reader Supported News, Bought Justice and The Supreme Court, Dylan Ratigan, Nov. 5, 2011. The Supreme Court looms over our political landscape like a giant, immovable object. Americans have traditionally respected the court's purview, believing that it serves justice, dispassionately. Yet the most controversial decision of the last twenty five years -- Bush v. Gore -- has profoundly shaken that sentiment. And other decisions, like the Citizens United ruling that prevented restrictions on corporation and labor outside expenditures in elections, are inviting further skepticism. Just who does the Court serve? Is this another case of Platinum Citizens getting one set of rules, and everyone else getting another set of rules? And is the Court dominated, like the rest of our government, by money? Do we have a bought Supreme Court?

Salon, Our ethically permissive Supreme Court: Conservative justices wink at their own conflicts of interest, Ronald Goldfarb, Nov. 1, 2011. As Common Cause and Alliance for Justice have documented, the past activities of Justices Clarence Thomas, Samuel Alito and Antonin Scalia raise questions about the propriety of some of their extracurricular experiences. In September, the two groups, along with more than 100 law professors and ethicists, called upon Congress to require the nine justices of the high court to apply to themselves the existing ethical code of conduct rules covering all other federal judges, and to require them to publicly provide valid reasons rejecting recusal for alleged conflicts of interests.

OpEd News, Glenn Greenwald; With Liberty and Justice for Some... and How the Occupy Movement Could Change Things, Rob Kall, Nov. 1, 2011. I talk with Glenn about his new book, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful, and about the Occupy movement.

AlterNet OpEd News, Were U.S. Elections Sold to Corporations So Clarence Thomas Could Reward His Friends? Adele M. Stan, Oct. 30, 2011. The ethical problems posed by Thomas' involvement in the Citizens United case hardly mark the end of questionable behavior by Thomas and his wife, Ginni.When Clarence Thomas took his seat before the Senate Judiciary Committee in 1991, things were not looking good for him. Anita Hill, a former employee of Thomas' at the Equal Employment Opportunity Commission, came forward with explosive allegations of sexual harassment.

Louise SlaughterHuffington Post, Democrats Ramp Up Calls For Ethics Probe Of Clarence Thomas, Jennifer Bendery, Oct. 5, 2011. House Democrats are ratcheting up the pressure for a formal investigation into Supreme Court Justice Clarence Thomas for failing to disclose information relating to his wife's earnings -- as much as $1.6 million over the past 13 years -- on his annual financial disclosure forms. House Rules Committee ranking member Louise Slaughter (D-N.Y.), right, and Rep. Earl Blumenauer (D-Ore.) on Wednesday sent a letter to the House Judiciary Committee calling for hearings "on the pattern of potential ethical lapses" by Thomas, who, after years of filing his financial forms properly, stopped disclosing his wife Ginny's employment status every year between 1997 and 2011. During that time, the letter states, his wife made at least $1.6 million, based on reports from outside groups.  "Public records clearly demonstrate that Justice Thomas has failed to accurately disclose information concerning the income and employment status of his wife, as required by law," reads the letter to House Judiciary Chairman Lamar Smith (R-Texas) and ranking member John Conyers (D-Mich.). "In addition, news reports indicate that Justice Thomas may have also failed to report gifts from wealthy supporters and inappropriately solicited donations for favored non-profit organizations."

New Yorker / Annals of Law, Partners: Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan? Jeffrey Toobin, Aug. 29, 2011.  As the Justice has assumed an influential role on the Roberts Court, his wife has helped lead the public war against the Administration.  It has been, in certain respects, a difficult year for Clarence Thomas.  These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

Legal Schnauzer, The Road from Clarence Thomas to Harlan Crow Runs Close to Home, Roger Shuler, June 27, 2011. Mounting evidence indicates Justice Clarence Thomas is so ethically compromised that he should be removed from the U.S. Supreme Court. The latest evidence comes from a New York Times piece about Thomas' ties to a Texas real-estate baron named Harlan Crow. We have discovered that the Thomas/Crow story, in a roundabout way, links to one of our storylines here at Legal Schnauzer. In fact, our story is about judicial chicanery in Alabama, the kind that favors the wealthy over regular citizens. That theme should sound familiar if you have been following the trail of Clarence Thomas' numerous ethical lapses. And it raises this question: How far will some wealthy Americans go to buy justice? The answer, in the case of Harlan Crow, appears to be "pretty darned far." When you examine the actions of another wealthy titan, a man whose family has ties to Harlan Crow, you get the same answer.

New York Times,Thomas' ties to a Texas real-estate baron named Harlan, Mike McIntire, June 27, 2011. The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas. In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.