Justice Clarence Thomas should resign

I’ve been thinking about this for several days now.  I’ve asked myself if this is just the left/progressive/liberal media piling on someone they have never liked much?  Am I attracted to this story because I never wanted him confirmed in the first place?  (I have my “I believe Anita” button somewhere.)  Is it because he never asks questions?  Because 99% of the time he does what Justice Scalia does?

I don’t think the New York Times is the liberal media.  And, yes, I’d like him to fall as payback for what he did to Anita Hill.  (I can’t be as forgiving as she).  I do believe that having him on the Court is a waste of a seat.  I also know that when Justice Kagan does not recuse herself from voting on the health care reform Fox etc. will be jumping all over her.  Justice Kagan has, however, recused herself from several cases that were already filed and being considered by the Department of Justice as well as her former office, Solicitor General.

What is the Times story about?  It is about preservation of a site in Pin Point, GA where Justice Thomas’ mother once picked crabs and the creation of a museum there.  It is about the owner making connection with Harlen Crow through Justice Thomas.  Crow, you may remember, financed the Swift Boat campaign against Senator John Kerry.

Mr. Crow stepped in to finance the multimillion-dollar purchase and restoration of the cannery, featuring a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s.

The project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

The two men met in the mid-1990s, 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.

OK, Justices have to have a life outside of court and they have friends.  But as the Mike McIntire who wrote the story in the Times points out

In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

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.

What do other Justices, Justices on the other side of the Court’s ideological divide do?

It is not unusual for justices to accept gifts or take part in outside activities, some with political overtones.

Justice Stephen G. Breyer has attended Renaissance Weekend, a retreat for politicians, artists and media personalities that is a favorite of Democrats, including former President Bill Clinton. Justice Ruth Bader Ginsburg participated in a symposium sponsored by the National Organization for Women’s Legal Defense and Education Fund, and a philanthropic foundation once tried to give her a $100,000 achievement award. She instructed that the money be given to charity.

And as I pointed out earlier, Justice Kagan has recused herself from a number of cases.

Justice Thomas and Harlan Crow are friends.  They spend time together.  Crow is helping to finance the museum and Thomas has done more than simply introduce the property owners to him.  According to the Times story he has picked the people to put the exhibit together and has worked on the film that will be shown.  Opposition first came from a group that opposes Thomas politically, but does that make this suspect?

No one is saying that Crow and his money have directly influenced any of Thomas’ votes.  But we can have suspicions.

Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’s arguments. The project director, an institute fellow named Edward Blum, said the institute supported his research but did not finance the brief filings or the Texas suit, which was litigated pro bono by a former clerk of Justice Thomas’s.

“When it came time to file a lawsuit,” he said, “A.E.I. had no role in doing that.”

Plus we all know that the Affordable Health Care Act will be coming to the Court.

Supreme Court ethics have been under increasing scrutiny, largely because of the activities of Justice Thomas and Ms. Thomas, whose group, Liberty Central, opposed President Obama’s health care overhaul — an issue likely to wind up before the court. Mr. Crow’s donation to Liberty Central was reported by Politico.

So what does this all mean?  What can anyone do about it?

The Code of Conduct for judges does not directly apply to the Supreme Court largely because there is not higher court to enforce it.  Justices do say that they follow the Code anyway.  But Thomas does not seem to have reported all the travel paid for by Crow.  Even as a group of law professors and Common Cause call for legislation to extend the Code directly to Supreme Court Justices one has to wonder who would be the enforcer.  If a Justice is already ethically aware there is no problem.   But there will always be a Clarence Thomas who appears not to have a clue.  His friends should tell him it is time for him to leave the Court.