By Samuel Damren and Judge Virginia Morgan
This is the third commentary in a series on the “conventional narratives.” Unlike the first two commentaries, this commentary is co-authored with retired Federal Magistrate Judge Virginia Morgan.
Judge Morgan served on the committee of 10 judges that oversaw the creation of the “Long Range Plan for the Federal Courts” adopted by the Judicial Conference of the United States in 1995. Chief Justice William Rehnquist subsequently appointed her to the nine-judge Board of the Federal Judicial Center, which he chaired.
The “core values” of the American federal justice system are one of the country’s prized conventional narratives. As described in Chapter 2 of the Long Range Plan, those values include judicial independence and accountability.
The Long Range Plan cautions that “preserving the power of the courts to do what is right while sustaining their legitimacy in the eyes of the public is one of the most delicate balancing acts of our constitutional system. If the federal courts alienate the public and lose its support and participation, they cannot carry out their appropriate role. In this sense, life-tenured federal judges, like other public officials, are finally accountable to the people.”
The American public entrusts the judiciary with the obligation to decide each case without fear and favor, whether that favor is actual-in-fact or as a result of the appearance of impropriety.
In a 2013 article “Judicial Ethics and Supreme Court Exceptionalism,” Professor Amanda Frost at the University of Virginia Law School reviewed the history of the conduct of federal officials and the obligations of judges and Justices under the Ethics Reform Act of 1978 and 1989. These obligations require disclosure of outside income, employment of spouses, investments, gifts, reimbursements, and other benefits.
The requirement that fiduciaries and others acting under a public or private trust disclose conflicts and potential influences that might affect their decisions is a longstanding principle under common law. The failure to disclose such conflicts or influences is always a matter of concern. But where that failure is a product of intentional choice by a fiduciary or judge, it is of even greater concern.
Why do we say that? Because it inevitably raises the question of what else the fiduciary or judge might be hiding or might choose to hide in the future. It raises the issue of trust and respect for the rule of law.
Currently, Justice Clarence Thomas finds himself in a situation where he faces a host of legitimate questions because of his repeated failures to disclose substantial gifts and benefits from Harlan Crow.
Crow is a billionaire Republican political donor and activist who met Thomas only after he was appointed to the Supreme Court. In addition to his commercial real estate empire, Crow also is on the board of the American Enterprise Institute whose interests are frequently before the court by means of amicus briefs.
As currently reported in the media, Crow provided international travel and accommodations to Thomas involving a flight to Indonesia on Crow’s private jet, accommodations aboard his yacht, as well as travel and other vacation benefits on separate occasions over decades; none of which were reported by the justice in his required financial disclosures.
In 2014, also unreported by the justice, Crow purchased the home where Thomas’s mother resides from an entity in which Thomas held an interest. Crow thereafter made substantial improvements to the property and apparently allows the justice’s mother to live rent-free.
In 2015, Thomas did report a “Gift” from Crow of a “Bronze Bust of Frederick Douglass,” valued at $6,484.12 in his Judicial Financial Disclosure Form.
Thomas and Crow claim that the largesse provided by Crow to Thomas and his family is the result of a special personal relationship that is purely social in nature.
Here are some of the legitimate factual questions that must be answered as a result of these circumstances.
Why did Thomas report the Bust of Frederick Douglass as a gift from Crow, but not other gifts of far greater value in the form of luxury travel and accommodations?
Who advised the justice that he was required to report certain gifts but not others?
What was the legal rationale underlying this advice?
What other undisclosed gifts or reportable matters has the justice received from Crow?
What family members of the justice have received or are receiving undisclosed benefits from Crow?
In order to assess whether the benefits provided to Thomas are the result of a special personal relationship, has Crow ever made gifts to other members of the federal or state judiciary or to the benefit of their families?
As noted at beginning this commentary, the conventional narrative of the American system of justice includes the core values of judicial independence and accountability. The judicial branch of the federal government with life-tenured judges can only maintain the “delicate balance of Constitutional values” through unassailable impartiality and transparency.
If the Supreme Court is to retain “legitimacy in the eyes of the public,” the factual questions identified in this commentary and others must be publicly addressed and fully answered because as Judge Damon Keith observed, “democracies die behind closed doors.”
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