20 Dem Reps: DOJ Should Investigate Clarence Thomas

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 Clarence Thomasfailures to disclose junkets, other gifts and income.

A coalition of both black and white Democrats told the Judicial Conference of the United States that it is required by law to seek a Justice Department investigation of the new allegations against Thomas
and his wife, the Republican political activist Virginia Lamp Thomas.
Most of the allegations became public this year. They involve claims of undisclosed gifts, junkets, income and other conflicts, along with the justice's failure to report his wife's earnings on annual judicial disclosure forms that he signed under oath.

“Due to the simplicity of the disclosure requirements, along with Justice Thomas’s high level of legal training and experience,” said the congressional letter to the conference secretary  James C. Duff, “it is reasonable to infer that his failure to disclose his wife’s income for two decades was willful, and the Judicial Conference has a non-discretionary duty to refer this case to the Department of Justice.”

To be sure, the 20 signatures are relatively few from a 435-member, Republican-run House. Their names are here.Still, the letter marks a significant step in clarifying a potential criminal component to what Thomas defenders and the nation's timid watchdog institutions often trivialize as either oversights by a busy public servant or potential “ethics” issues that have scant remedy as a practical matter. 

Our Justice Integrity Project, among a handful of watchdog groups, has long focused upon seemingly flagrant abuses throughout the Thomas era, which I observed first-hand at the outset by attending his 1991 confirmation hearings. The hearings reached a dramatic point 20 years ago in early October as Thomas faced sexual harassment claims by law professor Anita Hill, who had been a Thomas subordinate at two different federal agencies during the early 1980s.

In February of this year, I hosted Common Cause Vice President Mary Boyle on my “MTL Washington Update” radio show just after her group disclosed that Thomas had been hiding his wife’s income. Last week, our radio audience heard also from retired federal judge Lillian McEwen, a former Thomas lover from the early 1980s and author of the compelling memoir, DC Unmasked and Undressed, published earlier this year. She said -- based on her experience hearing Thomas discuss “Long Dong Silver” and other shared experiences -- that he apparently perjured himself during his confirmation hearings when he denied under oath using the kind of pornography that Hill swore he had described.

Clarence and Virginia Thomas Characteristically, Thomas has largely remained silent about the new allegations, aside from disclosing that he promptly corrected his financial statements after Common Cause exposed the problem via a Los Angeles Times article in late January. We’ll update today's report with any comment we obtain from him or Duff's Administrative Office. That office implements decisions by the Judicial Conference of the United States, which is chaired by Supreme Court Chief Justice John Roberts, a Republican colleague of Thomas.   

Significantly, the congressional letter-signers demand an open-ended DOJ investigation, unlike the forgive-and-forget stance that most in Washington accord to the powerful. “Based upon the multiple public reports,” the letter said, “Justice Thomas’s actions may constitute a willful failure to disclose, which would warrant a referral by the Judicial Conference to the Department of Justice, so that appropriate civil or criminal actions can be taken.” [My emphasis added.]

Many reasons exist for those in Washington's power structure to ignore each others’ sexual and financial scandals, especially in this instance. For one, Thomas has influential friends who orchestrated his appointment. Also, he is the court’s only African-American justice, a status he uses to intimidate critics. For example, he denounced Hill and inquiring Senators alike at his hearing for what he described as a “high-tech lynching.”
The tactic worked. Senate Republicans Arlen Specter (PA), Orrin Hatch (UT) and Alan Simpson (WY) led vicious questioning of Hill. They slimed her without mercy for daring to speak up. Also, we know now from many books and other records that then-Sen. John Danforth (MO), a  wealthy Thomas mentor and ordained minister, the White House, the DOJ, and federal court personnel led a similar behind-the-scenes assault on Hill. Taxpayers unwittingly funded part of that attack, of course, not simply via partisan elected office-holders but also via judicial and other personnel expected to stay above the fray.
That's not all. The confirmation was enabled also by vast, secret donations from private individuals who wanted Thomas on the court and who weren't shy about their methods. Part of this secret support included a cranked-up grass-roots campaign that included TV ads and bused-in black evangelicals targeting then-Judiciary Committee Chairman Joe Biden (D-DE) and other Democrats, some of whom had their own staff-harassment and similar sex scandals to hide. There’s no point being coy at this point with the stakes so high. Read The Senator: My 10 Years with Ted Kennedy, a 1992 biography of the late Judiciary Democrat by his former chief of staff, Richard Burke. Burke describes sex and drug scandals, and lots of them. And there’s scant reason for those living in Washington to believe Kennedy was alone in such behavior.

Thus, our leaders rushed through the Thomas hearing without allowing on camera the most effective independent testimony that could have vindicated Hill. This enabled his confirmation, albeit by a 52-48 vote that represents the most negative votes in U.S. history for any Supreme Court justice. The White House photo above typifies the bipartisan fakery involved even in what might be expected to serve as a  transparent occasion. Thomas, with wife gazing on, is shown at right taking a fake oath from Democratic-nominated Justice Byron White on Oct. 18, 1991. The ostensible elevation of Thomas to the court effectively ended simmering questions. Chief Justice William Rehnquist, unavailable Oct. 18 because of his wife's death, administered the real oath on Oct. 23 in his office, away from the cameras and other public view.  

Imagine for a moment a different scenario: Suppose the Biden-led Judiciary Committee had delayed the hearing to allow more investigation of the allegations against Thomas? Suppose the senators had informed the public with more testimony? What might have happened if, for example, if they had encouraged their counsel Lillian McEwen to step forward and describe her experiences. She had been a brilliant former counsel to the committee in the early 1980s when it was chaired also by Biden. Later, she became a law professor before becoming a federal judge with Securities and Exchange Commission.

Suppose she had testified that she accompanied Thomas to New York’s Plato’s Retreat sex club? She described that, and lots more, in her compelling memoir.  But that’s not what Biden and his colleagues wanted. Furthermore, the Senate avoids post-confirmation scrutiny of judges suspected of perjury under a constitutional separation of powers rationale. When it’s over it’s over, right?

Even so, commoners unschooled in the law’s fine points might get confused: Do Senators truly care about good government if they let nominees perjure themselves? Should those who capture judgeships by such chicanery also bask in lifetime appointments with no real oversight for their lavish gifts and family jobs, especially if the facts are hidden to litigants and everyone else with misleading disclosure statements?  On a routine basis, Thomas and his colleagues piously imprison others who similarly mis-state or overlook such matters on a document, or even verbally to a federal official. Why should they be  exempt themselves?

Let's look ahead:  To commemorate the twentieth anniversary of the Thomas confirmation hearings over the next few weeks, we can expect many accounts of his career. Some will be enlivened with nasty comments about him from a few academic, feminist or political critics. But Thomas and his allies can shrug that off. News reports suggest that real estate tycoon Harlan Crow is the kind of friend who lets Thomas and his wife relax in luxury, whether at a mansion or the iconic Bohemian Grove. At the same time, Thomas has fostered a politically useful image of a VIP who despises Ivy League academics and chills out with workers at the court cafeteria and with children who lap up his inspirational talks at their schools. In sum, the odds are overwhelming that Washington’s thought-leaders will raise a few eyebrows over allegations against him and ultimately will close ranks with one of their own, as usual, on a bipartisan basis. Big-time Democrats and their  backers, like Republicans, have important business before the Supreme Court.

Still, keep an eye on the congressional letter sent Sept. 29, 2011 to Duff at the administrative office at the Judicial Conference.

Despite the name that the congressional signers put at the top of the page, their letter is probably addressed to a different court. Ordinarily, that tribunal's members are too distracted and too disrespected to have much impact. Even so, that court is potentially more powerful than the one run by Chief Justice Roberts and his colleagues.

It's called the court of public opinion.

Contact the author Andrew Kreig or comment
Congressional Letter Demanding Investigation
The following are similar versions of the Justice Integrity Project's column on Sept. 30, 2011 for different audiences:
New York Daily News, Supreme Court Justice Clarence Thomas is out of order for hiding payout to wife: House Democrats, Alison Gendar and  Corky Siemaszko, Sept. 29, 2011. U.S. Supreme Court Associate Justice Clarence Thomas is under fire for failing to disclose a large payout his wife received from a conservative think tank. Congressional Democrats demanded an ethics investigation Thursday into Supreme Court Justice Clarence Thomas for allegedly failing to disclose that his wife was paid $700,000 by a conservative think tank. They say Thomas marked off the "none" box on his annual financial disclosure form while his wife, Virginia, was raking in the dough working for the Heritage Foundation.

Wall Street Journal Law Blog, Democratic Legislators Call for Investigation of Justice Thomas, Nathan Koppel, Sept. 30, 2011. Just a few days after the Obama Administration asked the Supreme Court to weigh in on the Patient Protection and Affordable Care Act, 20 House Democrats are raising questions about whether Justice Clarence Thomas can impartially rule on the pending challenges to the federal heal-care overhaul. Led by New York Congresswoman Louise Slaughter, the legislators yesterday sent a letter to Administrative Office of U.S. Court, claiming that Justice Thomas improperly failed to disclose nearly $700,000 that his wife, Virginia Thomas, allegedly earned from the conservative Heritage Foundation from 2003 to 2007.

MSNBC, Slaughter, 19 Colleagues,

, Al Sharpton Show, Sept. 30, 2011. Sept. 30, 2011. (Video).

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.).

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.).
See also, America’s Blog, Dem members of Congress say Clarence Thomas violated ethics rules, John Aravosis Sept. 29, 2011.

Below are recent Justice Integrity columns and follow-ups in other media
Connecticut Watchdog, Troy Davis Execution, Clarence Thomas Anniversary Raise Court Questions, Andrew Kreig, Sept. 28, 2011. The execution of Troy Davis on Sept. 21 prompts me to share with Watchdog readers several research tools below that can help us explore the national implications of that case and similar mysteries. Georgia executed Davis, despite hundreds of thousands of petition signatures protesting that witnesses had recanted their eyewitness testimony.
OpEd News, Troy  Davis, Clarence Thomas -- and Georgia on Our Minds, Andrew Kreig, Sept. 27, 2011.
OpEd News, Clarence Thomas' Lover Reflects On DC Life, Love, Law, Andrew Kreig, Sept. 22, 2011.

Below are other significant, recent articles about judicial scandals and oversight
Wall Street Journal Law Blog, U.S. Supreme Court, Court Denies Florida Stay of Execution, Justice Breyer Dissents, Nathan Koppel, Sept. 29, 2011. Manuel Valle was executed last night in Florida for killing a police officer in 1978 but not before the condemned inmate (pictured) evoked sympathy from one Supreme Court justice. Valle’s legal team yesterday filed a request for a stay of execution with the high court, which obviously denied the request. But Justice Stephen Breyer issued a strongly-worded dissent from the court’s refusal to stay the execution. Decision text.
Special Interest Money Floods Into State Judicial Races, Supreme Court
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. isconsin 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.

Cash for Kids Judge Sentenced in Private Prison Scandal

OpEd News, Judge Receives Over 17 Year Sentence For Role In "Cash For Kids' Private Prisons Scandal, Sept, 28, 2011. Michael Conahan, a former jurist in Luzerne County, was sentenced on Friday to 210 months in custody by Senior U.S. District Court Judge Edwin M. Kosik II. Conahan was also ordered to pay $874,000 in restitution.

Judicial Support for Spying

Salon / Unclaimed Territory, Dennis G. Jacobs: Case study in judicial pathology, Glenn Greenwald, Sept. 22, 2011. Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the "state secrets" privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government -- and, for that matter, everyone else in the country -- lacks "standing" to challenge the legality of the spying.

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