Clearing Clarence Thomas

We see in Scotusblog.com that the federal courts have decided against referring complaints against Justice Clarence Thomas to the Justice Department for investigation. That was announced by the secretary of the Judicial Conference. It strikes us as wise. Partly because of the political nature of the complaints. And partly for the fact that, the Judicial Conference’s secretary said, the justice has, in amended disclosures, addressed several of the concerns raised.We’d like to think that this will end the brouhaha over Justice Thomas. It struck us from the beginning as an organized effort. It involved left wing senators, led by Sheldon Whitehouse of Rhode Island and Providence Plantations, and others who have been upset with the substance of Justice Thomas’s rulings. The complaints and the way they were handled strike us as the ethical problem, not the particulars the Democrats laid to Justice Thomas.Mr. Whitehouse’s attempt to seek legal sanctions against the justice looks not only like a breach of the separated powers, but an attack on the independence of the judiciary itself. The senator called on the judicial conference to “refer” Justice Thomas to the Attorney General — in short to recommend his prosecution — because the justice had “‘willfully’ failed to comply” with “financial disclosure requirements” of the Ethics in Government Act of 1978.Mr. Whitehouse’s gripes relate to a campaign of negative coverage against Justice Thomas in the liberal press relating to his belated disclosure of certain “gifts and travel provided by a wealthy benefactor,” Reuters said. The Ocean State senator lamented the decision of the conference to refrain from moving against Justice Thomas, complaining that the body was “shirking its statutory duty to hold a Supreme Court justice accountable for ethics violations.”A clearer view of this comes from Chief Justice Roberts who, in his annual report on the judiciary, is sounding the alarm about threats to the independence of judges — including rising fears over their personal safety. Moves like those by Mr. Whitehouse stand in contrast with the Framers’ ideal, which Chief Justice Roberts marks by quoting Hamilton characterizing judges as “the bulwarks of a limited Constitution against legislative encroachments.”Which brings us back to the Judicial Conference. It was established by Congress in 1922 to address various matters related to the courts. It is chaired by the Chief Justice and includes the chief judge of each of the circuits and several other judges. Its letter in respect of Justice Thomas consists of a fact-packed three pages to Senator Whitehouse and Congressman Henry Johnson. It explains why the conference hasn’t made, or can’t make, a referral of Justice Thomas.The letter suggests that the conference lacks the power to refer members of the Supreme Court for investigation by the Justice Department. It also suggests that the complaint by Messrs. Whitehouse and Johnson became moot when they and Senator Wyden “wrote directly to the Attorney General to ask him to appoint a Special Counsel to investigate these same matters.” So there was no “cognizable basis for acting on your referral request.”It strikes us that if the Judicial Conference had serious doubts about Justice Thomas, it would have said so. Our guess is that the conference sees the complaints about Justice Thomas for what they are — a primal scream against a conservative court. It is well aware that, as Chief Justice Roberts has pointed out, Hamilton in 78 Federalist warned “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”Correction: Rhode Island and Providence Plantations is the name of the state represented by Senator Whitehouse. An earlier version misstated the name.

Clearing Clarence Thomas

Clearing Clarence Thomas

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