Last week I argued that the Declaration of Independence was a part of our laws. The point I was making was that the principles upon which our laws are based are the very essence of our laws. Indeed, appellate courts take those principles and legislative intent into consideration when interpreting our laws. This is why it is not just congress that may not abridge the right to freedom of speech, religion, etc. If the states could abridge those rights the constitutional protections of those rights would mean nothing. Similarly, the principles for the conduct of judges are set forth in the rules of ethics those judges must follow. If U.S. Supreme Court Justices can ignore those rules and refuse to recuse themselves from cases in which those justices might have a conflict of interest or a bias in favor of one party over another then the right to an impartial hearing and decisions based upon the merits of the case mean nothing. In which case, our entire judicial system is a sham.
Obviously the intent of exempting Supreme Court Justices from those rules of ethics was not to permit the justices to act unethically; rather it was to preserve the independence of the court by preventing anyone from using a minor or questionable breach of those rules as a reason for expelling from the court a justice who has made an unpopular decision. As I said last week, the real question is not whether Supreme Court Justices must follow the rules of ethics but rather who, if anyone, has the authority to enforce those rules in regard to U.S. Supreme Court Justices. To conclude otherwise would be inconsistent with the most fundamental principles of our judicial system. The good reputation of the Supreme Court and its justices is essential if the people of this country are going to have any faith in the integrity of our courts. This was the argument Chief Justice Earl Warren made to Justice Abe Fortas when Mr. Fortas faced the threat of impeachment over the Wolfson scandal, and it was at least in part why Justice Fortas resigned from the court.
What Abe Fortas did to cause the threat of impeachment was not as egregious as the violations committed by Clarence Thomas. Justice Fortas at least had the good sense to recuse himself from hearing the cases involving Mr. Wofson. Clarence Thomas, on the other hand, heard the Citizens United Case and voted in favor of Citizens United even though Citizens United had contributed $100,000 to help Justice Thomas get confirmed. After receiving valuable gifts from American Enterprise Institute (AEI) Justice Thomas heard three cases involving AEI, and he either sided with AEI or took positions more extreme than AEI in all three of those cases. This is just the tip of the iceberg when it comes to Justice Thomas. He has demonstrated an unmistakable pattern of ethical violations that cannot be ignored. The evidence against him is mounting both in regard to the activities of his wife and in regard to his relationship with Harlan Crow, both of which should have caused Justice Thomas to recuse himself from cases he has helped to decide. Clarence Thomas is the perfect example of why judges must follow the rules of ethics and why Supreme Court Justices cannot be exempt from those rules.
As Abe Fortas faced the threat of impeachment so must Justice Thomas. The evidence against him must be presented to Congress and to the court of public opinion. Doing this is essential to the integrity of our entire judicial system. Impeachment and removal from the court are the only available remedies to protect us from the judicial misconduct of a U.S. Supreme Court Justice. Clarence Thomas has committed more than just minor or questionable violations of the rules of ethics; he has disgraced the highest court in land with behavior that is unethical or criminal or both. The rules he has violated are serious enough to conclude that he is guilty of judicial misconduct at the least. We must not allow him to create even the impression that U.S. Supreme Court decisions can be purchased!
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