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January 02, 2005

Justice Thomas accepted tens of thousands of dollars worth of gifts; ethicists balk

The odds on Clarence Thomas becoming the next Chief Justice may be getting longer (see our related posts here, here, and here).  The LA Times reports here that Thomas has accepted over $40,000 in reportable "gifts" over the last six years.  (Hat tip: Wonkette.)  The largest gift, a bible once owned by Frederick Douglass worth $19,000, came from a Texas Republican activist who also donated $25,000 to help launch the "Swift Boat Veterans for Truth."  Eek.

After Thomas, the next-highest total belongs to Sandra Day O'Connor, who accepted just under $6,000 in gifts, "mostly small crystal figurines and other items."  Other than Thomas, the only Justice to report receipt of gifts from individuals was Justice Scalia.  Justices Souter, Kennedy, Stevens, and Breyer did not report accepting any gifts.

The article quotes a couple of legal ethicists as raising questions as to the propriety of a judge, particularly a Supreme Court Justice, accepting gifts of the magnitude that Thomas appears to favor.  It also quotes law professor and former Thomas law clerk John Yoo defending Thomas, saying that raising these kinds of questions "reflects a bizarre effort to over-ethicize everyday life."  Everyday life, huh?  I don't know about your personal friends, but none of mine have given me $19,000 bibles, or $5,000 cash gifts to help educate my grand-nephew, lately.  Of course, maybe Santa put me on his "naughty" list this year.

By the way, Thomas's defender is the same John Yoo who, when working for the Justice Department, drafted the now-infamous torture memo that provoked widespread outrage and was promptly disavowed by the White House after it became public, and which has now been thoroughly repudiated by the same Justice Department office that Yoo used to work for.  Hmm -- "over-ethicizing" indeed.  Suffice it to say that Yoo (whose faculty bio lists his areas of expertise as foreign affairs, national security, and constitutional law) was an ... interesting ... choice to comment on the ethics of his former boss's conduct.  And if Yoo, neither an expert in legal ethics nor a disinterested party, is the best the LA Times could do in finding someone to defend Thomas's receipt of these gifts, it doesn't bode well for Chief Justice confirmation hearings.

UPDATE: Another hat tip to How Appealing for noting an op-ed published today in the San Jose Mercury News by the aforementioned John Yoo.  Yoo acknowledges that DoJ's new memo supersedes the 2002 memo that he helped to draft, and that it specifically rejects some of the 2002 memo's more important conclusions, but he seems to suggest that DoJ hasn't really changed its approach in any significant way: "Although some have called this a repudiation, the Justice Department's new opinion still generally relies on Congress' restrictive reasoning on what constitutes torture." 

Well, we report, you decide.  Here's what the new memo actually says about the old memo (at p. 2, footnotes omitted):

This memorandum supersedes the August 2002 Memorandum in its entirety.  Because the discussion in that memorandum concerning the President's Commander-in-Chief power and potential defenses to liability was -- and remains -- unnecessary, it has been eliminated from the analysis that follows.  Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture.

We have also modified in some important respects our analysis of the legal standards applicable under 18 U.S.C. ss. 2340-2340A.  For example, we disagree with statements in the August 2002 Memorandum limiting "severe" pain under the statute to "excruciating and agonizing" pain, id. at 19, or to pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," id. at 1.  There are additional areas where we disagree with or modify the analysis in the August 2002 Memorandum, as identified in the discussion below.

In footnotes, the new memo adds that

great care must be taken to avoid approving as lawful any conduct that might constitute torture.  In addition, this memorandum does not address the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the Uniform Code of Military Justice, 10 USC s. 801 et seq.; the Military Extraterritorial Jurisdiction Act, 18 USC ss. 3261-3267; and the War Crimes Act, 18 USC s. 2441, among others).  Any analysis of particular facts must, of course, ensure that the United States complies with all applicable legal obligations.

Warnings such as these, particularly to the effect that other sources of law might apply, are notably absent from the 2002 memo -- indeed, the 2002 memo specifically opined (at p. 38, n.22) that "members of al Qaeda and the Taliban are not legally entitled to the status of prisoners of war as defined in the [Geneva] Convention," citing an earlier DoJ memo. 

Repudiation?  You make the call.

FURTHER UPDATE: The LA Times editorializes here that Thomas's receipt of gifts means that he "cares as little as his mentor, Antonin Scalia, about whether the court is perceived as a fair and impartial decision-maker."  Hmm.  First, we're not sure it's appropriate to say that Scalia is Thomas's "mentor" -- as we've already explained, Thomas's jurisprudence has diverged from Scalia's in important ways.  Second, the editorial compares Scalia's famous duck-hunting trip with Thomas's gifts.  Now, while I think Thomas's receipt of these gifts does raise ethical issues, I don't think Scalia's trip is a fair comparison, for one simple reason: no one who gave Thomas gifts has appeared as a litigant before the Court, whereas in Scalia's case, a named party (Dick Cheney) also happened to give Scalia a lift on Air Force II (among other things).  (Yes, yes, I know -- Scalia says he still didn't have to recuse.  A topic for another day.)  To equate (1) an actual instance of a Justice hearing a case in which a litigant had given the Justice a free ride on a luxurious airplane with (2) the possibility that someone who gave a Justice a gift might appear before the Court in the future (at which point, of course, the Justice might recuse himself), is simply faulty reasoning.

Posted by David at 03:30 PM in Law and Lawyers | Permalink

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Comments

Sorry dude . . .

The fact that he reported the gifts, combined with the fact that he can recuse himself from any case that makes it before the court that is somehow connected to the gift-givers makes this an non-issue.

But keep on trying . . .

Posted by: David | Jan 2, 2005 7:18:11 PM

The real problem here is that Justice Thomas accepted a Bible. That's simply unacceptable to the anointed sophisticates.
Better he had accepted an Koran, or a bound version of Susan Sontag's greatest writings.

Posted by: swami | Jan 2, 2005 8:20:40 PM

David: there's no claim here that Thomas did anything clearly improper under current law. But let us recall the words of former RNC counsel Jan Baran, as reported in the LA Times article, in explaining why members of Congress have barred gifts of over $50 in value from anyone other than family or close personal friends: "The House and Senate concluded it is not healthy to the integrity of their institutions to allow members to accept valuable gifts from strangers. That was the issue for us.... To get a new set of tires [as Thomas apparently did] from a generous car dealer would not be OK under these new rules." I report, you decide how it smells.

Swami: I trust you speak in jest, ha ha. But just to clarify: the issue is of course not Bibles per se, but rather artifacts of any sort that are worth $19,000 -- especially when they come from an individual on the board of an organization that files amicus briefs with the Supreme Court, as was the case here. Not clearly improper, but ... well, again, you decide.

Posted by: David | Jan 2, 2005 9:06:30 PM

I just *love* how Republicans play the race card more than Johnnie Cochran these days: "Or is this just another attempt to prosecute Thomas for the crime of thinking while black?"
http://www.nationalreview.com/thecorner/05_01_02_corner-archive.asp#049242

Of course, this nicely implies that the 90% of African-Americans that have no @#$% use whatsoever for Clarence Thomas are "not thinking". Hmm...

Posted by: Charley on the MTA | Jan 2, 2005 9:21:57 PM

Charley

Of course, you're right. The Corner got it wrong.

The crime really is "rejecting the Leftist dogma while black"

Posted by: Darleen | Jan 3, 2005 12:01:43 AM

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