Optional Ethics

Published: July 15, 2011

By Jim Lichtman
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Last February marked the fifth year of silence from Supreme Court Justice Clarence Thomas during oral arguments held before the court. While Thomas certainly has a right not to enter the Q & A with lawyers, it does raise a simple question, “Why?”  This is a question that many have raised in the last several years.

The simple fact is we learn a lot about the thinking and effectiveness of a justice from the questions he raises and the dialog he engages in with lawyers on an issue. If the public is to have trust and confidence in the decisions from the highest court in the land, justices must demonstrate in both their professional and personal actions that they are free of any possible bias.

Earlier this year, Congressional Democrats believed that Justice Thomas should recuse himself from an expected review of President Obama’s new health care reform law once it was discovered that Thomas’s wife, Virginia is a lobbyist for the Heritage Foundation who has said that she would provide “advocacy and assistance” as “an ambassador to the Tea Party movement” – a movement which has announced its intentions to work toward overturning the new health care law.

At issue is that when the court examines arguments for and against the law, the justices should do so based on the merits of the case. What is overlooked, however, is that with his wife’s involvement in the Tea Party, Justice Thomas creates the appearance of a conflict of interest.

Nevertheless, it is Thomas’s relation with Dallas real estate mogul and contributor to many conservative causes that raises a more direct ethical issue.

According to June article in the New York Times, “The two men met… 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.”

The Times reported that Arn Pearson, a lawyer with Common Cause said that “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period. If any other federal judge was doing it, he could face disciplinary action.”

But here’s what’s bothersome to me. Supreme Court justices “are not bound by the federal judiciary’s conduct code because it is enforced by a committee of judges who rank below the justices” the Times writes. “Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

“The code says judges ‘should not personally participate’ in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them.

“Beyond the admonition against fund-raising, the code generally discourages judges from partaking in any off-the-bench behavior that could create even the perception of partiality. It acknowledges the value in judges’ being engaged with their communities, lecturing on the law and doing charitable work, but draws a line where those activities might cause a reasonable person to worry that a judge is indebted to or influenced by someone.

“In January, the liberal advocacy organization Common Cause asked the Justice Department to investigate whether Justices Thomas and Antonin Scalia should have recused themselves from last year’s Citizens United campaign finance case because they had attended a political retreat organized by the billionaire Koch brothers, who support groups that stood to benefit from the court’s decision.

“More than 100 law professors have petitioned Congress to extend the ethics code that binds federal judges in lower jurisdictions to Supreme Court justices.” In their letter, they cited a principle of natural justice “that no person can judge a case in which they have an interest.”

The principle applies to any appearance of possible bias, “…even if there is actually none,” the online source Wikipediasays. “Justice must not only be done, but must be seen to be done.”

When it comes to trust in justices whose decisions have the potential to affect millions, ethics should never be optional.

Update: Yesterday, U.S. District Judge Reggie Walton declared a mistrial in the case of Roger Clemens, the former Yankee pitcher accused of perjury before Congress in 2008. The judge made his ruling after the prosecution presented testimony that was previously declared inadmissible by the judge.

“He is entitled to a fair trial and, in my view, he can’t get it now, and that was caused by the government,” Judge Walton said in a statement reported in the New York Times. However, Clemens is not free of legal entanglements yet. Judge Walton will revisit the possibility of a retrial in September.


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