Justice Breyer Reviews History, Skirts Allegations Against Clarence Thomas

Justice Stephen Breyer

The Supreme Court fulfills its vital role in preserving democracy by earning public confidence, as Justice Stephen Breyer told a packed hall last week in Washington, DC.

But his lecture and book, Making Our Democracy Work, largely glossed over current controversies, such as the “Virginia and Clarence Thomas Bought By Billionaires” ad that a progressive group, Protect Our Elections.org, released this week.

My purpose here is to illustrate how Breyer, at left and one of the top ambassadors for the court, responds to specific allegations of corruption that are seldom raised officially in Washington because the court has such power. So, this column focuses more on Breyer’s Oct. 27 talk at the Historic Synagogue at 6th and I Streets NW, rather than the allegations against Thomas, which are best available via the links below.

Fresh from a National Press Club lecture the previous night where retired federal judge Lillian McEwen said Justice Clarence Thomas should resign on grounds of false statements and improper gifts, I asked Breyer during Q&A how the court decides on its responses to such inquiries. I identified myself as reporting on this year’s allegations against Thomas, and said I’ve received no comment from him.

Breyer responded that he guides the court’s spokeswoman when a matter pertains to himself, and has seven volumes of ethics books and also trusted ethics advisers that he consults on difficult issues. When a follow-up questioner asked Breyer about abortion, he ducked by joking, “We’ve already had a reporter gently try to bring up something,” and smiling as he waved his hands at his side, as if to shoo away a beggar.

Breyer’s inclination to gloss over current controversy is one way to preserve the court’s stature. Another has been his 2010 book, a national best-seller that was strongly praised by the New York Times, Washington Post and other establishment opinion-leaders and information gatekeepers. But not everyone was bedazzled. McEwen authored DC Unmasked and Undressed this year, and was my guest at this event. A former law professor, she told me it seemed like a warmed-over speech for a civics class, not one for a sophisticated DC audience.

The lecture did not address the revelations by Common Cause and others this year of false statements by Thomas in his sworn annual disclosure statements to hide an estimated $1.6 million in reportable income and gifts for him and his wife, Virginia. Forty-six House Democrats have called for a House impeachment probe.

Protect Our Elections.org ad

Protect our Elections.org is a progressive group that says it has been working with the FBI since July on an investigation of Thomas and his wife. This week the group published the ad above, headlined, “Clarence and Virginia Thomas Bought By Billionaires.” The text is about David Koch, at far right, and Harlan Crow, shown between the Thomas couple. It says:

Virginia, Harlan, Clarence and David have been having a good laugh at our expense. How much longer will we let this go on? America’s citizens have had it with people in power who violate the law. That includes Clarence Thomas, who has used his position as a Supreme Court Justice to flout the law and enrich himself, his wife and their cronies through corrupt backroom deals with billionaires Harlan Crow, and Charles and David Koch.

This was the kind of controversy for which I sought response from those named in the ad and their representatives. So far, the best I can get are a few quotes recycled from other news reports. The Supreme Court’s spokeswoman told one reporter that the Thomas false statements on his judicial disclosure forms were “inadvertent.” Thomas responded obliquely to the controversy by telling a conservative audience in February that he and his wife would continue to fight for liberty, as I reported earlier this week in Thomas Must Resign, Says Former Judge, Lover. I’ll update this report if the Thomas, his court, Crow or the Koch brothers respond to my comment requests.

ProtectOurElections.org amplifies its allegations in a 12-page memo it says it shared in July with the FBI. The allegations against Thomas and relevant law are reflected also in the request by congressional Democrats for a Thomas impeachment inquiry, as described in Democrats Ramp Up Calls For Ethics Probe Of Clarence Thomas.

Author and retired judge Lillian McEwen

Author Lillian McEwen was a U.S. Securities and Exchange Commission judge for 12 years before her retirement five years ago after a career that included also work as a federal prosecutor, counsel to the Senate Judiciary Committee and law professor. She is portrayed at right in a photo courtesy of Dr. Randy Short.

She said in her Press Club lecture that every judge knows that he or she must fill out financial disclosure forms honestly under pain of prosecution for false statement. Therefore, she concluded, Thomas illustrated a criminal mentality by 13 years of hiding spousal income and gifts after filling out the forms accurately for his first years on the bench.

She described Thomas further as a “best friend” when they dated for five years in the early 1980s. But she said he lost his way in the mid-1980s and so she decided to break up. She added that no one has contradicted or even rebutted any part of her memoir, which is primarily about her youth and early adulthood in Washington, DC. However, she describes positive and negative attributes of Thomas, including his keen interest in pornography in ways that he specifically denied during

Joe Biden

his 1991 Senate confirmation hearing, thus counteracting Anita Hill’s sexual harassment testimony. The Senate confirmation hearing was chaired by Sen. Joe Biden, left, who had chaired the committee also in the early 1980s when McEwen worked for the committee and dated Thomas.

More generally, the 20th anniversary this month of the 52-48 Senate confirmation of Thomas has seen many reflections about the impact of on the nation of his lifetime appointment. Our Oct. 27 column provided an extensive appendix of commentary pro and con. The month’s developments illustrated also that public approval of the Supreme Court is sinking, according to a recent poll showing just a 46 percent rating.

Breyer intended his lecture and book for audiences of non-lawyers to sustain support for the court’s work. His emphasis is on the key cases, primarily from the distant past. The Democratic former appellate judge and Harvard Law School professor also chronicles his dissents from the jurisprudence of “originalists” who ostensibly try imagine how the Founding Founders would react to a case. The best known are his fellow associate justices Clarence Thomas and Antonin Scalia. Breyer emphasizes that they work closely together despite differences. “We get on pretty well,” he said of his experience since his appointment in 1994. “I’ve never heard one judge make a slighting remark” he said of their conferences, and there have been “no words raised in anger.”

Beyond the court’s collegiality, he emphasized that reasonable minds can disagree on cases complex enough to reach the Supreme Court. One example he cited was when national security conflicts with privacy or First Amendment speech rights. “The tough cases,” he said, “are not right against wrong, but right against right.”

Breyer stresses that the justices work affably together despite differences. “We get on pretty well,” he said of his experience since his appointment in 1994. “I’ve never heard one judge make a slighting remark” he said of their conferences, and there have been “no words raised in anger.” Beyond the court’s collegiality, he emphasized that reasonable minds can disagree on cases complex enough to reach the Supreme Court. One example he cited in his vigorous and entertaining discourse was when national security conflicts with privacy or First Amendment speech rights. “The tough cases,” he said, “are not right against wrong, but right against right.”

However, hard times are here. Aside from the kind of widespread economic disaster not seen in this country since the 1930s, the Supreme Court has a rare, highly visible partisan split, five Republicans and four Democrats, who often vote differently on major decisions in essence on party lines. One was the Citizens United decision in 2010, which upended federal election donation limits on corporations and unions. This enabled Thomas to reward the plaintiff Citizens United, which had run an ad campaign in 1991 against Senate Democrats helping achieve his confirmation, as I noted earlier this week.

The big decisions threaten to change outcomes of federal elections or such major legislation as the Obama health care law. Let’s add to that the incendiary race, sex, abortion, religion, death penalty and corruption factors swirling around the votes of Clarence Thomas. Breyer, congruent with his erudite approach, downplayed the significance of these 5-4 votes, saying they are only on about 20 to 25 per cent of cases. Breyer suggested the public be happy that our society is not resolving our differences by violence outside a legal framework.

But the intrepid Lillian McEwen is among those who have dared to criticize Thomas. “He’s been rewarding his friends,” she said at the Press Club, “and punishing his enemies.”

Her word is hardly the final one, of course. And so it’s up to the rest of us to support those authorities willing to get to the facts about the allegations. Doubtless in ways uncomfortable for those in power, this advances the goal of what Breyer himself described as the court’s vital mission: “Making our democracy work.”

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