Judging the Judges: Citizens Must Unite After 20 Years of Clarence Thomas
On Oct. 18 this week, the nation reached an important symbolic moment for the Clarence Thomas era on the Supreme Court. That was the date 20 years ago for his swearing-in ceremony at the White House. The associate justice took an oath from Associate Justice Byron White.
But the scene was hokum. The Bush White House designed it to quiet Thomas critics ASAP after the 52-48 Senate confirmation on Oct. 15 by pretending he was beginning his lifetime appointment. The quick ceremony also allowed his backers in town to celebrate in grand style. In sum, this was partly stage-crafted to fool the public about our most respected branch of government at one of its most solemn transitional landmarks.
The real ceremony was a tiny one in private on Oct. 23. Chief Justice William Rehnquist administered the oath after he pulled himself together following his wife's then-recent death. Thomas acknowledged this chronology in his 2007 autobiography and other biographers confirm it.
Thus, the Thomas era on the court began with a fraud upon the public and has expanded into ongoing infamy.
We can now be confident beyond any reasonable doubt, for example, that Thomas was a porno fan who lied under oath about it during his Senate confirmation hearing.
Instead of admitting his interest, he claimed that his former staffer, Anita Hill, falsely testified that he described to her porn star Long Dong Silver. Books and news reports for years after the hearing identified witnesses who could have exposed his deceptions about porn. His denial was a key part of his impassioned and otherwise effective defense. It persuaded many in his prime-time television audience into thinking he was yet-another black victim of what he piously called, "a high-tech lynching."
Retired federal judge, prosecutor and law professor Lillian McEwen this year adds to this previous evidence with DC Unmasked and Undressed, her powerful memoir of enduring cruel parents in a segregated nation's capital as a child of mixed race. She then found happiness in the law. The former counsel to the Senate Judiciary Committee under Chairman Joe Biden dated Thomas for years in the early 1980s, overlapping entirely with her lover's time supervising Hill while he chaired the Reagan Equal Employment Opportunity Commission, the main federal agency to redress sex, race and other job bias.
In her book and in her recent interview on my public affairs radio show, Washington Update, McEwen described the future justice's keen interest in porn and other sex. This included, she says, his admiration for Long Dong Silver, their romps with multiple sex partners, and their visit to the sex club Plato's Retreat in New York City.
Thomas was and is, of course, entitled to entertain himself in private as he prefers.
But that was hardly the political or spiritual rationale for hundreds of ministers to come to Washington in 1991 to lobby for his confirmation. Neither was it the legal issue later in the 1990s when federal authorities spent millions of taxpayer dollars to investigate and impeach President Clinton over the language he used to describe his relationship with Monica Lewinsky, a consensual partner and former intern at all relevant times of their sexual relationship.
Even more important than perjury is last year's ruling in Citizens United vs. Federal Election Commission. With Thomas in the 5-4 majority, the court held that the First Amendment protects corporate and union funding of independent political broadcasts in candidate elections.
The decision and similar radical changes in our election procedures threaten to turn our future federal elections into make-believe democracy. Cash-strapped ordinary voters are likely to find it increasingly hard to influence lawmakers.
As background, the conservative group Citizens United in 1991 prepared for its own success by co-sponsoring with the Conservative Victory Committee a $100,000 TV ad campaign entitled, "Who Will Judge the Judge?"
This was to frighten Biden and two other influential Democratic senators with TV reports about their own past scandals. It was one of the key factors enabling the Thomas appointment. Biden failed to call witnesses who could have supported Hill's sexual harassment claims by describing Thomas propensities. Instead, Biden and other Democrats in the majority consented to the rushed timetable demanded by Republicans.
The basic facts about the Citizens United ads are well-documented, including in a 1991 Time Magazine report. That reporting is amplified in relevant books, including The Real Anita Hill by her former scourge, David Brock. He noted that Citizens United founder Floyd Brown previously created the notorious Willie Horton ads used in the 1988 Presidential campaign. So, Brown was was well-versed in high-stakes attacks. Also, he was able to keep costs low by having the ad produced by the Republican National Committee, according to Capital Games, a 1992 book.
But those facts are not well-known today except by a few progressive groups trying to educate the public about the court's recent history and the real-world impact. One such group is Protect Our Elections.org, which has been encouraging Congress to support a criminal investigation of Thomas.
The group's counsel is Kevin Zeese, an organizer of the Freedom Plaza occupation in Washington that staged a sit-in at the Supreme Court on Oct. 15. That demonstration resulted in 19 arrests, including Dr. Cornel West's. Zeese told me this week he plans to urge others at Occupy DC to support a criminal probe of Thomas, with hopes that such a prosecution finds other widespread support nationally.
His group says it has been in touch with the FBI for months to help document of what they call criminal conduct requiring prosecution and impeachment. Part of their evidence is from their own Freedom of Information requests, part from similar research by Common Cause and part from recent investigative reports or commentaries. Among the latter are those published by the New York Times, the New Yorker and Counterpunch.
This month, Huffington Post reported that 46 House Democrats called for a House ethics probe of Thomas, citing his failure to disclose more than $1.6 million in income and gifts on his sworn, annual financial statements. His wife received most of the money, the justice reported after Common Cause exposed his deceit early this year.
Virginia Lamp Thomas, married in 1987, is a longtime advocate for right-wing causes and their corporate backers. One such job was her leadership in late 2000 of Bush transition planning at the Heritage Foundation. At that same time, her husband was voting in the 5-4 majority in Bush v. Gore to intervene in the Florida recount and thereby enable a Bush Presidency that made his wife's job meaningful.
But the Thomas role in Citizens United -- arguably vastly more important for the nation's future than even Bush v. Gore -- deserves the most attention now. Here is a summary of the Protect Our Elections evidence, which is documented on their website and in a newspaper ad they plan to run shortly: In November 2009, they wrote, two months before the Citizens United decision, Virginia Thomas received from Texas construction magnate Harlan Crow $500,000 to launch Liberty Central, a tax deductible organization poised to benefit from corporations seeking involvement in political campaigns. The ad continues:
Two months later, she told the IRS that she was going to be taking $495,000 in salary from Liberty Central over the coming months. The Thomases also used the Citizens United decision to enrich themselves by raising money based on that decision.
To be sure, any statement about big-time politics and law deserves rebuttal. The Supreme Court's longtime spokeswoman, Kathleen Arberg, for example, defended Thomas by telling the Huffington Post that his errors on the simple, sworn forms were "inadvertent." I'll update this report also with any reaction from Crow or the justice, who have declined comment to previous news reports and have so far failed to respond to my requests.
Thomas avoids jousting with critics. Instead, Thomas tends to attack them from a distance, as in his memoir. Another way is in his private meetings with supporters. For example, he responded to reports of his financial irregularities obliquely in February by telling a Liberty University audience that he and his wife "are focused on defending liberty," according a Politico report that quoted sources at the meeting, which was sponsored by the Federalist Society and closed to the media.
Ordinarily, the Supreme Court is impervious to criticism, in part because its members have lifetime appointments. Also, the major watchdog institutions, both civil rights groups and media organizations, themselves have cases and potential cases before the courts.
But the Thomas scandal that has now been festering for two decades requires something more than a wait-and-see attitude by traditional court-watchers. In "The Case Against Clarence Thomas," Huffington Post blogger Andrew Reinbach on Oct. 19 blasted this reluctance by what he called "official Washington" to investigate. The non-partisan Justice Integrity Project I lead endorses such efforts and will push ahead with our mixture of investigative reporting and legal reform advocacy. This is just as we did in opposing the Supreme Court confirmation of Democrat Elena Kagan on civil rights grounds and exposing irregularities in the federal convictions of Republicans Ted Stevens and Bernard Kerik.
Many logical follow-ups exist to the Thomas scandals. We'll share them with other reporters at a press conference we're hosting at the National Press Club next week featuring the fearless Lillian McEwen on a date TBA, or we'll pursue the stories ourselves if others won't.
We can all learn from each other in this process.
Let's find inspiration, for example, in the 1991 TV ad campaign slogan of Citizens United: "Who Will Judge the Judge?"
This column is excerpted from one on the Justice Integrity Project site with more extensive links to sources.