The Times story (June 19) raises two key questions about the justice's activities but puts the more significant one last and at the end of a long article.
The first question centers on the fact that the justice facilitated or solicited substantial contributions from wealthy businessman Harlan Crow, who has been a friend for more than a dozen years. Their friendship began after Thomas went on the Court. The money went to renovate a building in Pin Point, Ga., where Thomas grew up, and turn it into a museum.
The rule on solicitation of gifts in the code of conduct for US judges would seem literally to forbid this. After describing what a judge may do, it says: "Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose." Whether Thomas violated this language will depend on more detail than the story could not provide and which the justice refused to provide.
If the test is whether there are reasonable grounds to believe he did violate the rule, they are there.
But, as the story says, the code of conduct of US judges does not apply to justices. That must be changed. The justices should not be the only judges in the US not bound by an ethics code. If the current code for lower court judges does not quite fit their unique situation, the justices should adopt a new one -- or Congress should if they do not or do not believe that the Court has the power to impose a code on any justice who does not vote for it.
Enforcement of such a code is tricky. The lower courts have an elaborate system for inquiry and sanction. The same won't work for the Supreme Court. I think, however, that enforcement is less important than having a code that binds the justices. We can then expect compliance. And there is always congressional investigation if the code is flouted.
The more consequential part of the story is the implication that Thomas did not accurately list the source of gifts in his financial disclosure statement, which would be a crime (see below). The strong circumstantial evidence shows that the justice took flights on Crow's private plane, yet listed other donors for the flights. The justice and Crow declined to answer the paper's questions.
One source that could tell us whether Thomas was on the identified flights are the pilots of the planes. It is not clear if the Times tried to talk to them. Their identities should be apparent in flight records which the paper apparently has.
As with Thomas's silence on the funds he may have solicited, his refusal to respond to inquiries here is unacceptable. As a public official he has a duty to explain when the facts raise serious questions about his conduct.
Most important, perhaps, giving false answers on a disclosure statement is a federal crime and a basis for a civil penalty. 5a USC 104; 18 USC 1001. Of course, these laws govern the justices, too.
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