Justice Clarence Thomas erred by not disclosing lavish trips and should amend his reports
Quin Hillyer
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It will be easy for the Left to make too much of a new report questioning the ethics of Supreme Court Justice Clarence Thomas, but conservatives should not make too little of it, either. Thomas was wrong not to disclose apparently free, luxurious trips as a guest of Texas billionaire Harlan Crow. He should amend the record, apologize for the lack of disclosure, pledge to observe disclosure rules more scrupulously in the future — and then move on.
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Thomas’s nondisclosures are an ethical lapse. They are not, however, major sins.
The story was published Thursday by ProPublica, a nonprofit investigative news outlet. “For more than two decades,” it reports, “Thomas has accepted luxury trips virtually every year from [Crow] without disclosing them.” The outlet said Thomas’s failure to report many of the elements of these trips “appears to violate a law … that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said.”
It also is true that Crow regularly donates to conservative causes that at least track with, and sometimes directly support, efforts in which Thomas’s wife, Virginia, takes part in her professional life.
On the other hand, ProPublica’s Joshua Kaplan, Justin Elliott, and Alex Mierjeski dutifully report that “there are few [legal] restrictions on what gifts justices can accept. … [Crow and Thomas] have become genuine friends, according to people who know both men. … Crow and his firm have not had a case before the Supreme Court since Thomas joined it.”
And among the “exceptions” to the disclosure rule is that “if someone hosts a justice at their own property, free food and lodging don’t have to be disclosed.”
The purpose of the disclosure rules is so that the public can adjudge possible conflicts of interest. With no cases before the high court, Crow seems to present no direct conflict of interest for Thomas. The subtext of Thursday’s report, though, suggests a not-so-indirect, perhaps close-second-degree, conflict of interest is involved.
Let’s parse this. For various reasons, the Supreme Court operates more on what amounts to a self-policed “honor system” than almost every other realm of government. And it is true that the Left is hugely hypocritical when its activists pretend that participation at events of the conservative Federalist Society, which neither lobbies nor files court briefs, should disqualify jurists when the activists apply no such strictures to jurists participating with left-leaning groups. The ”gotcha” game against Thomas, in particular, has been persistently wrongheaded and mean-spirited for decades, and he has good reason to resent it.
Yet here’s where Thomas is wrong. While there are gray areas in the disclosure rules, and while even ProPublica could find no evidence that a shred of Thomas’s famously rigorous wordsmithing (much less his actual decision-making) has been affected by Crow’s opulent hospitality, public officials should abide by a higher duty. For judges lower than the Supreme Court, the code of conduct insists they must avoid even the “appearance of impropriety.” Especially because his high-profile, politically active wife already makes Thomas the subject of disputatious attacks from the Left, attacks that do have an effect on public perceptions of the Supreme Court in general, Thomas should strive to keep the judiciary’s reputation high by avoiding problematic appearances.
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There is no good reason, even if out of an abundance of caution, not to disclose Crow’s hospitality. For public confidence in the courts and in the Supreme Court in general, there is every good reason for Thomas to self-report his free trips since he has nothing to hide. A dignified public mea culpa, plus an amendment of his records, would be in order. Meanwhile, Thomas’s principled jurisprudence, always meticulously well explained, can keep speaking for itself.