Calling Clarence Thomas to testify could ignite ‘DEFCON one’ judiciary impasse
Kaelan Deese
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Supreme Court Justice Clarence Thomas is facing calls to testify about his relationship with GOP megadonor Harlan Crow — but legal and ethics experts believe such calls could ignite a “DEFCON one” impasse between the judicial branch.
From the New York Times editorial board to progressive advocacy groups like Common Cause, calls are emerging for Thomas to testify about undisclosed trips on the dime of Dallas-based real estate developer Crow. Meanwhile, Senate Judiciary Chairman Dick Durbin (D-IL) and other Democrats on the committee suggest Chief Justice John Roberts should address the conduct outlined in two ProPublica reports that the justice didn’t disclose luxury trips and a real estate transaction with the Republican donor.
HARLAN CROW BOUGHT CLARENCE THOMAS’S CHILDHOOD HOME TO CREATE ‘PUBLIC MUSEUM’
Durbin vowed the committee would plan a hearing “regarding the need to restore confidence in the Supreme Court’s ethical standards” and has asked Roberts to conduct an investigation due to potentially thorny separation of powers issues. “And if the Court does not resolve this issue on its own, the Committee will consider legislation to resolve it,” he added.
Common Cause said this week the committee should “call Justice Clarence Thomas as a witness in hearings to examine Supreme Court ethics in the wake of the latest scandal to engulf the nation’s highest court.”
But Josh Blackman, a law professor at South Texas College of Law, told the Washington Examiner there are “very good reasons not to have a justice testify,” suggesting it may form a precedent that would signal any future justices could be subject to congressional interrogation.
“Because you’re basically creating a precedent in which justice can be called to ask for further action, which may have more to do with the cases they decide than the actual issue,” Blackman said. He also said any Senate actions to investigate Thomas or with intent to find evidence to impeach him would create a “DEFCON one” standoff with the judiciary, according to Roll Call.
Legal experts have indicated any formal request for Thomas’s testimony would likely be rejected. The only justice subpoenaed by Congress was Tom Clark in the 1950s, who refused, and lawmakers declined to pursue the matter further. Blackman contended the subpoena against Clark was never enforced, saying, “I don’t know how much we can draw from it.”
Durbin’s statement comes as Sen. Sheldon Whitehouse (D-RI), who has introduced legislation to address ethics transparency on the high court, argues the governing body over federal courts, the Judicial Conference, should tap the Justice Department over potential ethics law infringements.
Calls for heightened ethics rules for the justices coincide with the Judicial Conference’s recent update for all federal judges, including Supreme Court justices, to disclose additional information surrounding free gifts, such as stays at commercial properties and other hospitable offerings. Reports of Crow’s “hospitality” to Thomas, which took place in years past, emerged just days after the new disclosure requirements were made public.
Notably, Thomas responded to the ProPublica report about his travels with Crow, saying he “was advised” that he did not have to disclose the trips.
While Blackman and other law professors told the Washington Examiner there is nothing barring Congress from imposing new ethics guidelines on the justices, such as requirements to recuse from cases that have conflicts of interest, creating enforceable rules becomes a grueling consideration.
In 2011, Roberts pushed back on calls for Thomas and Justice Elena Kagan to recuse themselves from cases over some publicly perceived conflicts of interest. Citing the small nine-member size of the bench, Roberts wrote in his year-end report that “a Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”
The Supreme Court Public Information Office has said the justices consult the Code of Conduct for United States Judges, which was first introduced in 1973 and is consulted by the nine justices on the bench. But Blackman noted the recusal requirements for lower court judges can’t very well be applied in the same way at the high court due to the obvious dearth of replacement options for recused justices.
And because the Supreme Court is tasked to decipher the legality of laws passed by Congress, any legal challenge to a novel law over high court ethics guidelines could also face judicial scrutiny.
“So if anybody were to challenge the constitutionality of it, the congressional rules on court ethics, it’s the Supreme Court that determines the constitutionality of those rules,” Justin Buchler, a congressional expert and associate professor at Case Western Reserve University, told the Washington Examiner.
Buchler said if the general complaint by ethics specialists concerning Thomas surrounds a lack of disclosure of some of his financial dealings, if anything, “a better system of disclosure could reduce some of these concerns.”
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However, Buchler said if the perceived image of “corruption” on the high court is due to the 6-3 Republican-appointed majority’s decisions over the previous years, then it remains to be seen if ethics rules would help that image.
“But at the same time, if you have more stringent disclosure practices, you can at least put a check on potentially corrupt practices,” Buchler said.