Clarence Thomas Must Go

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!

An Unethical Court

It is now being argued that Justices of the United States Supreme Court are not subject to the rules of ethics governing the behavior of judges. I liken that assertion to the argument that the Declaration of Independence is not a part of our body of law. The argument that this document, which sets forth the very principles on which our nation was founded, is not a part of our laws is absurd. Historians say that the first documented instance of someone quoting the Declaration as an authority was when Abraham Lincoln quoted it in his Gettysburg Address. In interpreting our laws, however, courts take into account the principles on which those laws are based, the intent of the law, and whether the law is equitable. There is little doubt that in framing the first ten amendments to our constitution our founding fathers had the principles stated in the Declaration of Independence firmly in mind. Unfortunately other parts of our constitution denied to many people the rights guaranteed by those amendments, and it took a civil war to cure that defect. Following that war several constitutional amendments and court cases extended citizenship to all people who are born in this country and established the primacy of federal law. Establishing the primacy of federal law meant that no state could deprive its citizens our groups of its citizens of the rights protected by our constitution. In doing this we made our written laws conform to the principles stated in our Declaration of Independence.

The assertion that Justices of the United States Supreme Court are not bound by the rules of ethics governing the behavior of all other judges defies all logic. The Supreme Court has enormous power. It can modify, change, and nullify laws. It therefore has the power to shape the fabric of the laws of this nation of laws. The guiding principal behind the rules of judicial ethics is to assure impartial hearings and fair and unbiased decisions. To say that the Justices of the highest court in the land are not bound by rules of ethics and can act unethically is ridiculous on its face. It violates the principle that no one is above the law, and it violates the intent of our entire body of laws. If those Justices are free to act unethically no one can be assured of a fair and impartial hearing, and no one can count on being afforded the protections guaranteed by our constitution!

The principles upon which our laws are based are the essence of our laws. Clearly it was not the intent of our founding fathers to establish a court that would undermine the integrity of our judiciary by acting unethically. The Supreme Court has tacitly acknowledged that its justices are not permitted to act unethically when it accepted the resignation of Justice Fortas who was pressured to resign because of his violation of the rules of ethics. The question, therefore, is not whether the Justices of the Supreme Court must follow the rules of ethics, but rather who has the authority to enforce those rules in regard to Supreme Court Justices. The only written law addressing the power to remove a Supreme Court Justice from the court is the power to impeach. A congressional committee or the Justice Department should therefore investigate Clarence Thomas to find the grounds for impeachment. The burden of proof to establish that he committed a high crime or misdemeanor is far more difficult than the burden of proof to establish that he behaved unethically, but the evidence of his corruption is mounting. There are also questions about whether a violation of judicial ethics constitutes judicial misconduct and whether judicial misconduct is a violation of criminal law. I will leave the answer to those questions to people who have the training and the time to research them, but I will say that Justices of the Supreme Court cannot be exempt from such laws. I am aware that many people will say that the precedent set by impeaching Thomas and removing him from the court could undermine the independence of the court. But the dangers of permitting Justice Thomas to remain on the court are far more dangerous than the precedent set by removing him. His refusal to recuse himself from hearing appeals when it is apparent that he has a conflict of interest is a judicial travesty. He must either resign or be removed. The integrity of our entire judicial system is on the line!