Citizens Must Unite After 20 Clarence Thomas Years

 

On Oct. 18 this week, the nation reached an important symbolic moment for the Clarence Thomas era on the Supreme Court. That Thomas Swearing Inwas the date 20 years ago for his swearing-in ceremony, portrayed at right in a White House photo showing the associate justice and his wife, Virginia, with Associate Justice Byron White administering the oath of office.

But the scene was pure hokum. The Bush White House designed it to quiet Thomas critics ASAP after the 52-48 Senate confirmation on Oct. 15 -- and to allow his backers to celebrate his lifetime appointment in grand style.

In sum, this was stage-craft to fool the public about our most respected branch of government at one of its most solemn transitional landmarks. The real ceremony was a tiny one in private on Oct. 23. Chief Justice William Rehnquist administered the oath after he pulled himself together following his wife's then-recent death. Thomas acknowledged this chronology in his 2007 autobiography, and other biographers confirm it.

Thus, the Thomas era on the court began with a fraud upon the public and has expanded into ongoing infamy.

We can now be confident beyond any reasonable doubt, for example, that Thomas was a porno fan who lied under oath about it during his Senate confirmation hearing. Instead of admitting his interest, he claimed that his former staffer, Anita Hill, falsely testified that he described to her porn star Long Dong Silver. Books and news reports for years after the hearing identified witnesses who could have exposed his deceptions about porn. His denial was a key part of his impassioned and otherwise effective defense. It persuaded many in his prime-time television audience into thinking he was yet-another black victim of what he piously called, "a high-tech lynching."

Retired federal judge, prosecutor and law professor Lillian McEwen this year adds to this previous evidence with DC Unmasked and Undressed, her powerful memoir of enduring cruel parents in a segregated nation's capital as a child of mixed race. She then found happiness in the law. The former counsel to the Senate Judiciary Committee under Chairman Joe Biden dated Thomas for years in the early 1980s, overlapping entirely with her lover's time supervising Hill while he chaired the Reagan Equal Opportunties Employment Commission (EEOC), the main federal agency to redress sex, race and other job bias.

Lillian McEwenIn her book and in her recent interview on my public affairs radio show, Washington Update, McEwen described the future justice's keen interest in porn and other sex. This included, she says, his admiration for Long Dong Silver, their romps with multiple sex partners, and their visit to the sex club Plato's Retreat in New York City.

Thomas was and is, of course, entitled to entertain himself in private as he prefers. But that was hardly the political rationale for hundreds of ministers to come to Washington in 1991 to lobby for his confirmation. Neither was it the legal issue later in the 1990s when federal authorities spent millions of taxpayer dollars to investigate and impeach President Clinton over the  language he used to describe his relationship with Monica Lewinsky, a consensual partner and former intern at all relevant times of their sexual relationship.

Even more important than perjury is last year's ruling in Citizens United vs. Federal Election Commission. With Thomas in the 5-4 majority, the court held that the First Amendment protects corporate and union funding of independent political broadcasts in candidate elections.
The decision and similar radical changes in our election procedures threaten to turn our future federal elections into make-believe democracy. Cash-strapped ordinary voters -- from the Tea Party, Occupy Wall Street or anywhere else -- are likely to try in vain to influence pols who are raking in big-dollar contributions from giant groups while pretending to care deeply about The Sheeple.

As background, the conservative group Citizens United in 1991 prepared for its own success by co-sponsoring with the Conservative Victory Committee a $100,000 TV ad campaign entitled, "Who Will Judge the Judge?"

Joe BidenThis was to frighten Biden, shown at right in a more recent photo, and two other influential Democratic senators with TV reports about their own past scandals. It was one of the key factors enabling the Thomas appointment. Biden failed to call witnesses who could have supported Hill's sexual harassment claims by describing Thomas propensities. Instead, Biden and other Democrats in the majority consented to the rushed timetable demanded by Republicans.

The basic facts about the Citizens United ads are well-documented, including in a 1991 Time Magazine report. That reporting is amplified in relevant books, including The Real Anita Hill by her former scourge, David Brock. He noted that Citizens United founder Floyd Brown previously created the notorious Willie Horton ads used in the 1988 Presidential campaign. So, Brown was well-versed in high-stakes attacks. Also, he was able to keep costs low by having the ad produced by the Republican National Committee, according to Capital Games, a book by Timothy Phelps and Helen Winternitz. 

But those facts are not well-known today except by a few progressive groups trying to educate the public about the court's recent history and the real-world impact. One such group is Protect Our Elections.org, which has been encouraging Congress to support a criminal investigation of Thomas. The group's counsel is Kevin Zeese, an organizer of the Occupy DC movement that staged a sit-in at the Supreme Court on Oct. 15. That demonstration resulted in 19 arrests, including Dr. Cornel West's. Zeese told me this week he plans to urge others at Occupy DC to support a criminal probe of Thomas, with hopes that such a prosecution finds other widespread support nationally.

His group says it has been in touch with the FBI for months to help document of what they call criminal conduct requiring prosecution and impeachment. Part of their evidence is from their own Freedom of Information requests, part from similar research by Common Cause and part from recent investigative reports or commentaries. Among the latter are those published by the New York Times, the New Yorker and Counterpunch.

This month, Huffington Post reported that 46 House Democrats called for a House ethics probe of Thomas, citing his failure to disclose more than $1.6 million in income and gifts on his sworn, annual financial statements. His wife received most of the money, the justice reported after Common Cause exposed his deceit early this year.

Virginia Lamp Thomas, married in 1987, is a longtime advocate for right-wing causes and their corporate backers. One such job was her leadership in late 2000 of Bush transition planning at the Heritage Foundation. At that same time, her husband was voting in the 5-4 majority in Bush v. Gore to intervene in the Florida recount and thereby enable a Bush Presidency that made his wife's job meaningful.

But the Thomas role in the Citizens United case -- arguably vastly more important for the nation's future than even Bush v. Gore -- deserves the most attention now. Here is a summary of the Protect Our Elections evidence, which is documented on their website and in a newspaper ad they plan to run shortly: In November 2009, they wrote, two months before the Citizens United decision, Virginia Thomas received from Texas construction magnate Harlan Crow $500,000 to launch Liberty Central, an entity poised to benefit from corporations seeking involvement in political campaigns. The ad continues:

Two months later, she told the IRS that she was going to be taking $495,000 in salary from Liberty Central over the coming months. The Thomases also used the Citizens United decision to enrich themselves by raising money based on that decision.

To be sure, any statement about big-time politics and law deserves rebuttal. The Supreme Court's longtime spokeswoman, Kathleen Arberg, for example, defended Thomas by telling the Huffington Post that his errors on the simple, sworn forms were "inadvertent." I'll update this report also with any reaction from Crow or the justice, who have declined comment to previous news reports.

Thomas avoids jousting with critics, as his colleague Antonin Scalia occasionally enjoys doing. Instead, Thomas tends to attack them from a distance, as in his memoir. Another way is in his private meetings with supporters. For example, he responded to reports of his financial irregularities obliquely in February by telling a Liberty University audience that he and his wife "are focused on defending liberty," according a Politico report that quoted sources at the meeting, which was sponsored by the Federalist Society and closed to the media.

Ordinarily, the Supreme Court is impervious to criticism, in part because its members have lifetime appointments. Also, the major watchdog institutions, both civil rights groups and media organizations, themselves have cases and potential cases before the courts. But the Thomas scandal that has now been festering for two decades requires something more than a wait-and-see attitude by traditional court-watchers. In The Case Against Clarence Thomas, Huffington Post blogger Andrew Reinbach on Oct. 19 blasted this reluctance by what he called "official Washington" to investigate.

The non-partisan Justice Integrity Project I lead endorses such efforts and will push ahead with our mixture of investigative reporting and legal reform advocacy. This is just as we did in opposing the Supreme Court confirmation of Democrat Elena Kagan on civil rights grounds and exposing irregularities in the federal convictions of Republicans Ted Stevens and Bernard Kerik. Many logical follow-ups exist to the Thomas scandals. We'll share them with other reporters at a press conference we're hosting at the National Press Club next week featuring the fearless Lillian McEwen on a date TBA, or we'll pursue the stories ourselves if others won't.

We can all learn from each other in this process. Let's find inspiration, for example, in the 1991 TV ad campaign slogan of Citizens United. Do you remember its title?  It was a question for our times today, "Who Will Judge the Judge?"

 

 


Contact the author Andrew Kreig or comment
 
Project's Judging the Judges Clarence Thomas Column Widely Republished on Web
News sites republishing the Justice Integrity Project's hard-hitting action call, Judging the Judges: Citizens Must Unite After 20 Year of Clarence Thomas, include the following. The first outlet was OpEd News. Others are listed alphabetically. Kindly send us any additions to this list you encounter -- and share your own views on reader comment sections and social media.
 
 
Other Recent Coverage
 
Clarence Thomas
Wall Street Journal, Twenty Years of Justice Thomas, JohnYoo, Oct. 22, 2011. In his first two decades on the bench, Justice Thomas has established himself as the original Constitution's greatest defender against elite efforts at social engineering. His stances for limited government and individual freedom make him the left's lightning rod and the tea party's intellectual godfather. And he is only halfway through the 40 years he may sit on the high court.

Justice Thomas's two decades on the bench show the simple power of ideas over the pettiness of our politics. Media and academic elites have spent the last 20 years trying to marginalize him by drawing a portrait of a man stung by his confirmation, angry at his rejection by the civil rights community, and a blind follower of fellow conservatives. But Justice Thomas has broken through this partisan fog to convince the court to adopt many of his positions, and to become a beacon to the grass-roots movement to restrain government spending and reduce the size of the welfare state.

Clarence Thomas set the table for the tea party by making originalism fashionable again. Many appointees to the court enjoy its role as arbiter of society's most divisive questions—race, abortion, religion, gay rights and national security—and show little desire to control their own power. Antonin Scalia, at best, thinks interpreting the Constitution based on its original meaning is "the lesser evil," as he wrote in a 1989 law journal article, because it prevents judges from pursuing their own personal policies. Justice Thomas, however, thinks that the meaning of the Constitution held at its ratification binds the United States as a political community, and that decades of precedent must be scraped off the original Constitution like barnacles on a ship's hull.
 
Reinbach Observer, The Case Against Clarence Thomas, Andrew Reinbach, Oct. 19, 2011. When is official Washington going to do more than talk about Clarence Thomas? After all the issues raised this year about the Associate Justice–including apparent perjury on his financial disclosure forms, his intriguing connections to the Koch Brothers and to Harlan Crow, and apparent bribery–you’d think the Justice himself would be calling for an official investigation just to clear his name. But no.
 
Washington Post, Enjoying basic loyalty, despite dip in popularity, Robert Barnes, Oct. 17, 2011. Gallup has announced that only 46 percent of Americans approve of the institution, a drop of 5 percentage points in the past year and 15 points in the past two years. “The same forces that have caused Americans to lose trust in the presidency and Congress appear to be affecting the way Americans view the Supreme Court,” Gallup said in a report accompanying the poll. “In addition to the public’s lower level of trust in the judicial branch of the federal government today than in recent years, the Supreme Court’s approval ratings — like those of Congress and the president — are in the lower range historically.” 
 
Associated Press / Washington Post, Activist Cornel West among 19 people arrested for protesting on steps of Supreme Court, Oct. 16, 2011. Author, commentator, civil rights activist and Princeton University professor Cornel West has been arrested while protesting on the steps of the Supreme Court about corporate influence in politics. A Supreme Court spokeswoman says 19 people were arrested Sunday afternoon after they refused to leave the grounds of the court.
 
C-SPAN, Anita Hill 20 Years Later, Oct. 15, 2011  (Video). An all-day conference titled "Sex, Power and Speaking Truth: Anita Hill 20 Years Later" was on the Hunter campus in New York Cit. Anita Hill, the woman who accused Supreme Court Justice Clarence Thomas of sexual harassment during his Senate confirmation hearings in 1991, was keynote speaker. Hill is now a professor at Brandeis University. Among two dozen other speakers were Maureen Dowd, New York Times columnist; Gloria Steinem, author and co-founder of Ms. Magazine; New York Congresswoman Louise Slaughter, and Hunter Provost Vita Rabinowitz.
 
Huffington Post, OWS and the 99 Percent After 20 Years of Clarence Thomas, Nan Aron, Oct. 14, 2011. As the Occupy Wall Street movement grows in size and intensity by the day, it's worth noting that Saturday marks the twentieth anniversary of the confirmation of Clarence Thomas as an associate justice on the United States Supreme Court. In our view, one has led directly to the other. Since he took his seat in 1991, Justice Thomas has become the almost perfect distillation of the ultra-conservative agenda -- the pointy end of the spear of corporatism and social conservatism on the Supreme Court. Jeffrey Toobin, in a recent article in The New Yorker, called him "probably the most conservative Justice to serve on the Court since the nineteen-thirties," whose "views both reflect and inspire the Tea Party movement." 

Guardian, Clarence Thomas's conservatism: The first 20 years, Jason Farago, Oct. 13, 2011.  The enigmatic judge keeps a low profile; yet, time is very much on the side of the supreme court's most reactionary justice

National Public Radio, The Ripple Effect, Nina Totenberg, Oct. 11, 2011. Twenty years ago Tuesday, the nation was spellbound by a political and sexual drama that played out before the Senate Judiciary Committee. Following an NPR report, the committee was forced to hold a second round of confirmation hearings to examine allegations it had previously ignored about Supreme Court nominee Clarence Thomas.


Anita HillDaily Beast, Surviving Clarence, Leslie Bennetts, Oct. 3, 2011. On a balmy Indian-summer afternoon in Waltham, Mass., a slender, attractive 55-year-old professor welcomes a visitor to her modest office at Brandeis University to talk about the historic scandal that transformed the national debate over sexual harassment two decades ago. Calm and as cheerful as her bright tomato-red cardigan, Anita Hill smiles wryly when asked if she suffered from post-traumatic stress after testifying at Justice Clarence Thomas’s 1991 Supreme Court confirmation hearings, where she was pilloried for revealing the way she said he behaved as her boss in two different jobs.

Washington Post, For Anita Hill, the Clarence Thomas hearings haven’t really ended, Krissah Thompson, Oct. 7, 2011.Twenty years ago, when Anita Hill returned home from the contentious Senate hearings during which she accused Clarence Thomas of sexual harassment, people told her not to worry — her name would be forgotten in a matter of months.

Huffington Post, Clarence's Questions, Part 1: The Case Of The Burning Cross, Oct. 7, 2011. Justice Clarence Thomas has not asked a question at a Supreme Court oral argument since Feb. 22, 2006. Many have commented on the meaning of his reticence, and Thomas himself -- who is as loquacious in speaking engagements as he is mum on the bench -- has put forward several explanations for his opting out of the lively back-and-forth among his eight colleagues and the lawyers who appear before them. But this series is called "Clarence's Questions," and not "Quiet Clarence," for a reason: As his sixth anniversary of self-imposed silence approaches this term and his third decade on the Court begins, it's worth examining the moments when Justice Thomas felt compelled to step into the fray.

Justice Integrity Project, Common Cause CEO Ramps Up Call for Thomas Probe, Andrew Kreig, Oct. 6, 2011. Common Cause President and CEO Bob Edgar Oct. 6 ramped up his group's call for a Justice Department probe of Supreme Court Associate Justice Clarence Thomas on ethics issues. Speaking on the Washington Update weekly radio show I host Scott Draughon, Edgar cited new evidence to argue that federal judicial authorities should refer the matter to the DOJ.

Washington Post, The legacy of the Clarence Thomas-Anita Hill hearings, Ruth Marcus, Oct. 6, 2011.Even now, with the healing distance of two decades, the subject of Anita Hill and Clarence Thomas retains its power to provoke and divide.

Huffington 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.

Common Cause / Alliance for Justice, Citing new evidence, Common Cause and Alliance for Justice urge formal investigation of Justice Thomas’ disclosure failures, Oct. 5, 2011. Emerging details about gaps in annual financial disclosure reports filed by Supreme Court Justice Clarence Thomas suggest that the justice deliberately withheld information required by federal ethics laws, Common Cause said today.

Justice Integrity Project, Reform Teams Must Fight for the Dream, But Much Better, Andrew Kreig, Oct. 3, 2011. As the Supreme Court begins its annual term today, Oct. 3, I'd like to share suggestions below on how legal reformers -- our team, in other words -- can be much more effective in achieving results. That’s the dream. But the reality is that we face huge challenges that require new approaches to fight due process violations and other wrongdoing that appears to extend high into the legal system.

Counterpunch, Supreme Court Scandal Widens: Koch Entertained Justice Thomas At His Private Club, Pam Martens, Oct. 3, 2011. For the past three years the U.S. has been served up a heaping dose of free market creative destruction that is the sine qua non of legions of corporate funded front groups. First Wall Street, then housing, now the nation’s highest court have been brought low by its force. As it turns out, creative destruction is 90 percent corruption and 10 percent creative.

OpEd News, 20 Dem Reps: DOJ Should Investigate Clarence Thomas, Andrew Kreig, Sept. 30, 2011. Justice Integrity Project, 20 Dem Reps: DOJ Should Investigate Clarence Thomas, Andrew Kreig, Sept. 30, 2011. Twenty Democratic members of Congress wrote federal judicial authorities on Sept. 29 to request a formal Justice Department probe of Supreme Court Associate Justice Clarence Thomas for long-term failures to disclose junkets, other gifts and income.

Huffington Post, Clarence Thomas Should Be Investigated For Nondisclosure, Democratic Lawmakers Say, Jennifer Bendery, Sept. 29, 2011. Democratic lawmakers on Thursday called for a federal investigation into Supreme Court Justice Clarence Thomas' failure to report hundreds of thousands of dollars on annual financial disclosure forms. Led by House Rules Committee ranking member Rep. Louise Slaughter (D-N.Y.), 20 House Democrats sent a letter to the Judicial Conference of the United StatesOther members of Congress on the letter include Reps. Jesse Jackson Jr. (D-Ill.), Gwen Moore (D-Wis.), Mike Honda (D-Calif.), Earl Blumenauer (D-Ore.), Christopher Murphy (D-Conn.), John Garamendi (D-Calif.), Pete Stark (D-Calif.), Raul Grijalva (D-Ariz.), John Olver (D-Mass.), Jan Schakowsky (D-Ill.), Donna Edwards (D-Md.), Jackie Speier (D-Calif.), Paul Tonko (D-N.Y.), Bob Filner (D-Calif.), Peter Welch (D-Vt.), John Conyers (D-Mich.), Keith Ellison (D-Minn.), Anna Eshoo (D-Calif.) and Ed Perlmutter (D-Colo.).

American Prospect, Under the Influence, Viveca Novak, Sept. 19, 2011.  Over the last decade, the U.S. Chamber of Commerce has spent a huge amount to tilt state courts its way. Wisconsin epitomizes a broad and destructive trend. Since the turn of this century, business-oriented groups have dedicated big money to loading state supreme courts with judges sympathetic to their cause, installing conservative majorities in state after state. With a nationwide strategic focus, they have won far more than they have lost, and progressives have struggled to match them.

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.

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.

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.

Slate, Clarence Thomas writes one of the meanest Supreme Court decisions ever, Dahlia Lithwick, April 1, 2011.  It's not just that a jury, a judge, and the 5th Circuit Court of Appeals found that New Orleans District Attorney Harry Connick knew his staff was undertrained and he failed to fix it. .

Politico, Defiant Clarence Thomas fires back: Clarence Thomas says that he and his wife 'are focused on defending liberty, Kenneth P. Vogel, Feb. 27, 2011.  Supreme Court Justice Clarence Thomas – his impartiality under attack from liberals because of his attendance at a meeting of conservative donors sponsored by the Koch brothers and his wife’s tea party activism – struck a defiant tone in a Saturday night speech in Charlottesville, Va., telling a friendly audience that he and his wife “believe in the same things” and “are focused on defending liberty.”  Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.” He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life. It was the first time Thomas has spoken out – at least in a semi-public setting – about the mounting controversies that have swirled around him and his wife, Virginia Thomas, who goes by “Ginni” and who was in Charlottesville with her husband.