If You Have Nothing Nice To Say . . .

I wrote this piece five years ago, after the New York Times reported that it had been five years since Justice Clarence Thomas uttered a word from bench during oral argument.  Today, the Times reminds us that the silent treatment has now reached ten years.

In a front page story in the New York Times, it was reported that Clarence Thomas has not spoken during a court argument in five years, an unprecedented silence from a Supreme Court justice.  The problem, however, isn't that Justice Thomas doesn't speak; it is to whom he speaks when he does.  As previously reported, Thomas (as well as Justices Alito and Scalia) have attended, headlined and spoken at political fund-raising events for right wing organizations, raising serious concerns about, at minimum, the appearance of impropriety.

Justice Thomas's ethics have come under further scrutiny lately.  Both he and Justice Scalia were featured guests at a retreat of wealthy Republicans and conservative leaders organized by Charles and David Koch, the brothers who finance right wing causes from the money they have made from their energy conglomerate.  One of the Koch brothers pet causes had long been ending financial regulations on elections.  Indeed, according to Common Cause, they funded many of the groups who filed amicus briefs in the Citizens United case.  What is so unseemly about the appearances of Thomas and Scalia at the Koch Industries-sponsored event is that it occurred while Citizens United was pending before the Court.  Furthermore, while a spokesperson for Thomas asserted that the Justice merely made a “brief drop-by” at the event, his financial disclosure forms revealed that he was reimbursed for an undisclosed amount for four days of “transportation, meals and accommodations” over the weekend of the retreat.  Hardly, a drop-by.

Then there are the myriad issues involving Thomas' wife.  An outspoken conservative in her own right, Ginni Thomas set up a political consulting business, Liberty Central, which, as the Times describes, touted her on the organization's website as an an advocate for “liberty-loving citizens” and promised to use her “experience and connections” to help clients raise money and increase their political impact.  What connections would that be?  In any event, Liberty Central benefited greatly from the Citizens United decision, with Ms. Thomas accepting "large, unidentified contributions" for the company.  Perhaps not coincidentally, Justice Thomas omitted his wife's employment on financial disclosure forms for the past six years.  He ultimately was forced to acknowledge this error, claiming it was due to "a misunderstanding of the filing instructions.”

Thomas's conduct would clearly seem to violate the Code of Conduct for U.S. Judges, but for the fact that the Justices have exempted themselves from the ethical rules governing other federal judges.  Nevertheless, his conduct should come under scrutiny.  Common Cause, accordingly, has written a well-documented letter to the Attorney General requesting an investigation to determine whether Justices Thomas and Scalia should have recused themselves from the Citizens United case.  It requests, in the event the Justice Department determines either Justice should have disqualified themselves, that the Solicitor General seek to have Citizens United decision vacated. 

As for cases yet to be decided by the Court, Ginni Thomas stepped down from her role at Liberty Central after a memo surfaced which called for the repeal of health care reform because of its unconstitutionality.  Given the increasing likelihood that the Court will take up a case involving the Affordable Care Act, 74 Democrats in the House of Representatives sent Thomas a letter requesting his recusal.  As the letter states:  "From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of healthcare reform is blurred."

I am glad that Justice Thomas doesn't ask questions during oral argument, and I wish Justice Scalia would ask far fewer.  It is better to have more time to address questions from the Justices who actually might be persuadable.  The problem is not what these extremely partisan Justices do when they are on the bench but what they do when they are off of it.