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Morris Davis

Morris Davis

Posted: February 10, 2011 04:27 PM

Pompeia, the wife of Julius Caesar, had to be above suspicion. Ginni, the wife of Supreme Court Justice Clarence Thomas, has to be at the center of it.

"The government has no right to tell me who I can do business with" was something I heard when I was an Air Force JAG doing government ethics briefings for civilian spouses of officers serving in command positions. I'd respond, "You've got the right to do business with anyone you choose, but your husband doesn't have a right to be a commander."

The standards of ethical conduct that apply to federal government employees and members of the armed forces prohibit those serving in leadership roles and decision-making positions from maintaining relationships that create the appearance of a conflict of interest between their official duties and their personal interests, including the personal interests of their spouses and dependent children. The rule is intended to promote public confidence that official decisions are made without partiality or favor due to a financial or other personal stake in the outcome. The civilian wife of a military commander is free to recruit the spouses of her husband's subordinates to sell Mary Kay or Amway, but her husband will likely lose his job; command is a privilege, not a right.

A 22-year-old lieutenant is held to a higher standard of conduct and personal accountability than a 62-year-old Supreme Court justice.

Justice Clarence Thomas filed annual financial disclosure reports -- reports that he signed certifying all the information was true and complete -- for more than a decade and listed all of the "non-investment income" he earned from speaking, teaching, and writing. In the same reports, he marked "None" in the section labeled "Spouse's Non-Investment Income." He recently filed amendment letters saying that for more than a decade he "inadvertently omitted" his wife's employment due to "a misunderstanding of filing instructions," including overlooking her paid positions with the conservative Heritage Foundation and as a staffer for Rep. Dick Armey, then a member of the House and now one of the leaders of the Tea Party movement.

Consider the three words that threw Justice Thomas for a loop: "spouse" (the one to whom you said "I do"), "non-investment" (not returns on investments, but earnings like the speaking, teaching, and writing payments he listed for himself), and "income" (money flowing in, not out). Taken alone or together they don't seem too complex for a person of average intellect to comprehend, and Justice Thomas clearly understood what the term "non-investment income" meant when he listed his own earnings. Justice Thomas' difficulties can be traced to one word: "spouse."

A number of recent articles condemned Justice Thomas for his display of extreme incompetence or gross indifference, while others dismissed the criticism directed his way as much ado about nothing that in the end would lead to nothing. Regardless of Justice Thomas' motivation, the fact remains that he had longstanding undisclosed personal financial links to people and organizations with unequivocal positions on issues that were or will be before the Court, links sufficient to cause reasonable people to question the impartiality of his opinions.

A decade-long record suggests that Justice Thomas and his wife aren't particularly concerned about preserving the appearance of an independent judiciary. An article in the New York Times in December 2000 entitled "Contesting the Vote: Challenging a Justice; Job of Thomas's Wife Raises Conflict-of-Interest Questions" noted that Mrs. Thomas was working for the Heritage Foundation soliciting resumes for executive branch positions while the Gore v. Bush case was before the Court. In the end, over 540,000 more citizens voted for Gore than Bush, but one more Supreme Court justice voted for Bush than Gore; had Thomas recused himself it's likely Al Gore would have been the president.

Some would have learned from the experience and tried especially hard to avoid further controversy and embarrassment to the image of the Court. Not the Thomases. A decade later, Ginni Thomas was still in the headlines because of her public role as a partisan advocate for the far-right conservative agenda. Last fall, her Liberty Central group declared "ObamaCare" to be "unconstitutional." (They've since removed the statement from their website.) Interesting to see how her husband assesses the same issue when it reaches the Court.

Likewise, Justice Thomas (Scalia, too) was a featured speaker at one of the controversial invitation-only Koch brothers' gatherings for elite conservatives. As the invitation letter for their latest event said, the purpose is "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it." The secretive brothers are so heavily invested in combating nearly everything the Obama administration touches that their extensive right-wing activist network is known in Washington political circles as "the Kochtopus." Many of the issues on the Koch brothers' far-right agenda either have been or will be before the Supreme Court where the perception that their invisible hands are at work could raise suspicion that justice is bought, not blind.

Since the midterm elections, some have tried to take it down a notch. Not the Thomases. In November 2010, Ginni Thomas filed paperwork in Virginia to incorporate her own lobbying and consulting firm, Liberty Consulting, Inc. On her website (http://libertyinc.co/), she touts her 30 years as a "Washington insider" and says she'll use her "network of contacts" to provide "effective advocacy and assistance on behalf of those liberty-loving citizens and organizations who wish to preserve limited government, free enterprise, national security, individual liberty and personal responsibility." She also notes that she's "an ambassador to the tea party movement." In a recent email to congressional chiefs of staff, she said she had already met personally with half of the 99 new members of Congress, and it's fair to assume a majority of those share her viewpoint on conservative principles. The Thomas influence is at work in both houses of Congress where laws get made and at the top of the Capitol Hill where they're interpreted.

The corrosive effects of money and special interests have eroded public confidence in the executive and legislative branches of government. At least there, however, the president and Congress are accountable to the public every few years, and they can be turned out of office if the public perceives their conduct or performance is lacking. Not so with the judicial branch where justices are appointed, not elected, and serve for life, not a set term. The judiciary, especially the Supreme Court, was believed to be above the political fray; a place where money didn't speak louder than ordinary people, where an inmate named Miranda and a detainee named Hamdi had the same clout as a Koch or a Bush. The Court's luster is tarnished.

Chief Justice Roberts said a Supreme Court justice is like an umpire in a baseball game; the job is to objectively call balls and strikes. There is a significant difference: the Commissioner of Major League Baseball would not allow an umpire behind the plate to call balls and strikes if the umpire's spouse coached one of the teams.

Caesar's wife had to be above suspicion. A Supreme Court justice should be, too. Wearing the robe is a privilege, not a right.