Justice Clarence Thomas, Judicial Ethics, & Calls for Reform

Episode Notes

Transcript

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Intro:  This relationship between Thomas and Crow has been going on for some time now, and it raises questions about how independent Justice Thomas is when he decides cases. Is he deciding them to satisfy his rich Republican friends, particularly Harlan Crow? And that’s an issue.

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Male 1: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog named “May It Please the Court”, and have two books out titled “How to Get Sued” and “The Sled”. Well, on April 6, 2023, ProPublica released a report titled Clarence Thomas and the Billionaire, detailing Justice Clarence Thomas’ failure to report years of lavish trips paid for by Republican billionaire Harlan Crow. In response, Thomas claimed early in my tenure at the Court. I sought guidance from my colleagues and others in the Judiciary and was advised that this sort of personal hospitality from close personal friends who did not have business before the Court was not reportable. Well, Justice Thomas’ actions have led US Senate Majority Whip and Chair of the Senate Judiciary Committee, Dick Durbin and other Senate Judiciary Committee Democratic members to send a letter to Chief Justice Roberts inviting him to appear before the Senate Judiciary Committee and setting a date of May 2, 2023 at 10:00 a.m. to testify at a public hearing regarding Supreme Court ethics reform.

The Committee wrote in the coming days, the Senate Judiciary Committee will hold a hearing regarding the need to restore confidence in the Supreme Court’s ethical standards. And if the Court does not resolve this issue on its own, the Committee will consider legislation to resolve it. But you do not need to wait for Congress to act to undertake your own investigation into the reported conduct and to ensure that it cannot happen again. We urge you to do so. In response, the Secretary of the Judicial Conference of the United States noted that the invite was referred to the Judicial Conference and forwarded to the Judicial Conference Committee on Financial Disclosure. In response, Chief Justice of the Supreme Court has responded and said, “Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare as one might expect in the light of separation of powers, concerns and the importance of preserving judicial independence”, according to Chief Justice Roberts.

So, are we looking at major judicial ethics violations here at the hands of the Supreme Court Justice, or was Justice Thomas simply complying with established norms? Today, on Lawyer 2 Lawyer, we’ll spotlight Justice Clarence Thomas, his recent ethics scandal, judicial ethics, a potential investigation into his actions, and calls for new ethics rules for SCOTUS. And to help us better understand this issue, we’re joined today by returning guest Dean James Alfini. He is the professor of law from South Texas College of Law in Houston. Jim was widely published in the field of judicial ethics and is co-author of Judicial Conduct and Ethics published by Lexus and now in its sixth edition. He served on the American Bar Association Joint Commission to evaluate the model Code of Judicial Conduct. The commission’s work resulted in the 2007 model Code of Judicial Conduct adopted by the House of Delegates of the American Bar Association. Welcome back to the show, Jim.

Dean James J. Alfini: Thanks, Greg. It’s a pleasure to be back.

J. Craig Williams: Well, it’s great to have you back on the show. I think, if I’m correct, you were back in December 10, 2021, the link is in our show notes. But let’s get started and tell our listeners how you became interested in judicial ethics.

Dean James J. Alfini: Oh, that’s an interesting question. After I got out of law school, I was hired by the American Judicature Society at one point, and I became their director of research and then assistant executive director. AJS, which was a hundred-year organization a few years ago that dissolved. So, it’s too bad, but it was a National Judicial Reform Organization where there were many lawyers and judges, and one of the judicial reform measures was to establish Judicial Conduct Commissions in the states. In 1961, there was only one such commission, and that was in California. Now, every one of the 50 states has, and the district of Columbia has a Judicial Conduct Commission. And the purpose of that commission is to receive complaints about judges and investigate them and prosecute them. Usually it’s the state high court, the Supreme Court of the state that issue some sort of sanction if one is warranted.

00:05:05

And so, it was largely because of my involvement with that. And I had hired, when I was there, two people, Professor Jeff shaman from DePaul and Professor Steven Lubet from Northwestern to work on some projects. And when I left to go into legal education full time, I started at Florida State. The three of us decided that there wasn’t any book in the field, and so, we published the treatise that you mentioned. It’s now in its sixth edition.

J. Craig Williams: That’s amazing. It’s been a long and strong influence in the industry. Can you describe for our listeners the difference between the Federal Judicial Ethics System and the State Judicial Ethics System?

Dean James J. Alfini: Sure. I just gave you a little peek into the state. The State Judicial Ethics Commissions are largely guided by their State Codes of Judicial Conduct, and they are usually passed by the state high court. So, the state high court will pass a Code of Judicial Conduct for the State of Montana, let’s say. And I would say, most of the states now have the 2007 version of the American Bar Association model Code of Judicial Conduct. As you mentioned, I was on the Commission before 2007, but that promulgated in 2007 the current model Code of Judicial Conduct. The way it works is that the Commissions have staff. They receive complaints about judges. They investigate the complaints. The vast majority of the complaints are not really actionable. They’re disgruntled litigants who have some axe to grind with a particular judge. But there’s a fair number that are legitimate. They then have the Commission, which is the Commissions usually are made up not only of judges and lawyers, but non-lawyers as well. They keep the lawyers and judges straight. So, the Commission then will take a staff work up on the investigation and decide whether to move forward with it or not. They then usually hold a hearing, and then after that hearing, they decide whether to act on the allegations against the judge.

And most of the times, the Commission itself can issue a number of sanctions. The most common is a letter of admonishment, warning the judge not to do it again. Sometimes, though, they will move it ratcheted up to a reprimand or a censure. Most Commissions are not authorized to remove a judge from office that would take action, the action of the State Supreme Court. I would say, on the average, about six judges per year are removed from office for misconduct.

J. Craig Williams: Can you give us some examples of some of that misconduct?

Dean James J. Alfini: Sure. Some may be for failing to follow their administrative duties. A judge might have been delaying the deciding of cases. There are instances where judges will delay a case for months, even years, or a number of cases. There’s a pattern of delay. Sometimes this is linked to a judge’s — the judge may be disabled in one way or another. So, the Commission will look into that. But if it isn’t, if it’s just because the judge has other things that he or she wants to attend to, the commission will sanction the judge. Other instances, are a judge being intemperate, using foul language in the courtroom, maybe even using racist or sexist language, or the judge usually has a staff, and the judges sometimes are charged with having created toxic workplace environments or misusing the staff, or using the staff for other things, like using their staff to babysit for the judge’s kids or going shopping expeditions or what have you.

So, a lot of the stuff is fairly innocuous, although it needs to be dealt with. But judges using racist statements on or off the bench, that’s a pretty serious charge. So, those are a few instances of the kinds of things that judges can be charged with. One of the instances that we probably are going to talk about today is accepting gifts.

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Judges are often charged with accepting gifts, and there are some very strict provisions in the State Codes of Conduct that would prevent a judge from doing that, particularly if the gift came from a lawyer who often appears before the judge. On the Federal side — you want me to go over to the Federal?

J. Craig Williams: That would be great. I would also like to pull in here the policy discussion. What’s the public policy behind Judicial Ethics? Why is it necessary for us to be able to enforce these things and have them? And in particular, let’s take a look at why the Supreme Court doesn’t have one.

Dean James J. Alfini: Yeah. Unlike the two other branches of government, the so-called political branches; the legislature and the executive branch. The judicial branch is held to certain standards, because it’s in the public interest to have it held to those standards for instance. No one expects Congress people or the president or a governor to be impartial. Oftentimes, they’re elected on platforms, and they then will act in ways that their constituents, the people who elected them, want them to act. Judges can’t do that. We expect our judges to be impartial. We expect them to have an open mind when a case comes before them, and we expect them to be independent of outside influences. We don’t want people, the judge calling someone, ask for advice on how to handle a case, or have someone calling the judge and say, “Hey, my buddy so and so has a case before you. Take it easy with him.” When we were working on the Code of Conduct, we referred to the three eyes; impartiality, independence, and integrity. We expect our judges to behave in a way that it will inspire public confidence in the judiciary. And so, those are the policy reasons behind the Codes of Conduct.

J. Craig Williams: Well, Jim, I need to interrupt for a moment. We’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 lawyer. I’m joined by Dean James J. Alfini. He’s the professor of Law from South Texas College of Law. We’ve been talking about ethics and why there’s judicial ethics. Well, Jim, let’s take that dive. Let’s talk about what’s going on now in the Supreme Court with Justice Clarence Thomas. And we find out today, recently, that Justice Gorsuch is also involved in somewhat of a scandal, perhaps, where he sold some property to one of Greenberg Traurig’s senior litigation lawyers, the head of the department. And Greenberg Traurig has appeared numerous times in front of the Supreme Court. What’s going on?

Dean James J. Alfini: Well, I mean, one thing we have to note upfront is that every judge in the United States is subject to some code of ethics or canons of ethics, except the nine Supreme Court justices. They have never imposed upon themselves a code of ethics. So, that’s a problem to begin with. Now, the Chief Justice for — well, ever since Roberts became Chief Justice, there’s been a certain amount of pressure on him to do just that, to have he and his colleagues come up with a Code of Conduct. And he has regularly declined to do so, saying that they use the Code of Conduct for US judges, that is, for the lower federal court judges, the trial court judges, and the district courts and the courts of appeals. They’re all held to the Code of Conduct for US judges which is roughly similar to the state codes that I mentioned, but not the nine Supreme Court justices. So, periodically, we have ethics issues raised and oftentimes, they’re recusal issues.

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A judge may have a personal relationship with someone who’s coming before the court. One of the most visible ones in the past decade or so was when Justice Scalia went on a, I think it was a fishing and hunting trip with then Vice President Cheney. Cheney was actually before the court as vice president, and so, they asked Scalia why he didn’t recuse himself. And to his credit, he wrote a fairly long opinion explaining why recusal wasn’t necessary under those circumstances. But oftentimes, it’s just that. So, for example, as you mentioned, Justice Gorsuch has recently had stories written about him for having sold some property that he was having a hard time selling, apparently to a high-ranking member of the Greenberg Traurig firm which is a big national law firm. And although he disclosed the sale and there are Federal laws that require disclosure of certain financial activities and gifts. He did disclose the sale, but he never disclosed the fact that it was this person from Greenberg Traurig who basically bailed him out with that sale. And I’m coming to that conclusion, but it sounds like that’s what happened.

And so, question is, why hasn’t he recused himself, excused himself from handling sitting on cases that have Greenberg Traurig on one side or the other? I think the press did some count, and there’s something of the nature of 10 or 12 cases that have come up since — by the way, Gorsuch was appointed in 2017. So, he’s been on the bench for five or six years. And during that time, Greenberg Traurig has had cases come before the court. Why hasn’t he excused himself? We haven’t heard anything from him as yet. Similarly, we have Justice Thomas, who for the past, and by the way, the uproar over Justice Thomas’ relationship with Harlan Crow, a very rich Republican who apparently has regularly treated Justice Thomas and his wife to trips that have his private plane, taking them to places that otherwise cost a lot of money, feeding them, et cetera. And Justice Thomas has been criticized for this for quite some time. I think the recent uproar is because — I can’t remember the organization, but they revealed details of these trips and they are numerous and very expensive trips.

J. Craig Williams: It was ProPublica, I think.

Dean James J. Alfini: It’s ProPublica, that’s right. I was on an ABC News program. I looked it up, actually, back in 2004, where Thomas was being accused of accepting very expensive gifts. And I looked back and it was Harlan Crow, the same guy who had at that time had given Justice Thomas a Bible that had been owned by Frederick Douglass, that was the Thomas had said was worth about $19,000 at that time. And he was given a bust of Abraham Lincoln that had a similar value by a conservative foundation that Crow was on the board of. So, this relationship between Thomas and Crow has been going on for some time now, and it raises questions about how independent Justice Thomas is when he decides cases. Is he deciding them to satisfy his rich Republican friends, particularly Harlan Crow? And that’s an issue.

J. Craig Williams: And as a dollar comparison here in California, a judge cannot accept a gift more than $25 without being required to disclose it. An amazing difference. I have a couple of kind of maybe constitutional and legal ethics questions. There’s a Government Ethics Act that applies to all government employees, and there’s also calls out for Congress to do some legislation and that hearkens back to the old Marbury versus Madison and the Judiciary Act of 1789. That was, if I can remember my law school brief on Marbury correctly, the Court itself invalidated unconstitutionally part of the act that established itself.

Dean James J. Alfini: Yeah, that’s roughly correct. I think what you’re referring to is maybe the general question is, is the Supreme Court and the Chief Justice in particular subject to Congressional Acts?

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And you mentioned the I think you meant the Ethics Reform Act of 1989 that requires disclosure of certain things. And if Congress were to get the Chief Justice to testify, by the way, it seems this past week, he’s declined to testify regularly, they might ask him why he’s not doing that. I suspect he would say something like, “In a much more articulate fashion than I’m about to, we don’t have to. We are a separate and co-equal branch of government. And you, the second branch, shouldn’t be telling us, the third branch of government, what to do.” So, there is a separation of powers issue when that happens.

Now, one wrinkle here, though, is the Judicial Conference of the United States has taken the Ethics Reform Act of 1989 and essentially passed a set of regulations on gifts. And the Judicial Conference of the United States is the governing body for the third branch, the Federal third branch of government. And in fact, the Chief Justice heads the Judicial Conference of the United States. So, there are Judicial Conference regulations on gifts. Question: Do the individual Justices of the Supreme Court feel that they have to abide by those regulations? Because if they do, they’d have a lot to answer for.

J. Craig Williams: They sure do. But Jim, we’re going to talk about that in a moment. We’re going to take another quick break to hear a word from our sponsors. We’ll be right back.

And welcome back to Lawyer 2 Lawyer. I’m back with Dean Jim Alfini. We’ve been talking about the application of whether Congress has any ability to control the Supreme Court. In the instance, if Congress were to enact an ethical set of rules for the Supreme Court, can the Supreme Court invalidate that as unconstitutional?

Dean James J. Alfini: I suspect they would, yes. And frankly, I might be on the Court side in that regard. I firmly believe that they should establish a Code of Ethics for themselves. But I’m a big believer in the separation of powers, and I would not like to have Congress sticking their nose under the judicial branch tent, if you will. That creates all sorts of problems. On the other hand, there’s nothing that says that Congress can’t continue to exert pressure on them to do something.

J. Craig Williams: Well, it certainly would be embarrassing to invalidate a Code of Ethics that was passed by someone else who has the ability. In fact, I think if I read the Constitution correctly, Congress was the one that used the early Judiciary Act to establish the Court system and dictate how many members of the Supreme Court there were and so forth. There’s a lot of regulation that came into place.

Dean James J. Alfini: You’re absolutely right. It’s up to Congress to establish the Federal Judiciary. We don’t have to have Federal Trial Courts or even Courts of Appeal. If Congress doesn’t want them, they could do away with them. But they can’t do a way with the Supreme Court.

J. Craig Williams: No, but they can defund the Court, can’t they?

Dean James J. Alfini: Well, I suppose that’s correct. I mean, they do have the power of the purse. So, they could do that. I think that would really create a constitutional crisis, though, if it got that far.

J. Craig Williams: There’s been calls for Justice Thomas to resign. There have been calls for him to be impeached. What do you think of the likelihood of either of those two remedies?

Dean James J. Alfini: Well, I mean, there is some history here. In the late 60s, Justice Abe Fortas, who was on the Supreme Court, I think from 1965 to 69, he was appointed by Lyndon Baines Johnson. And Johnson, actually, when he was Associate Justice of the Court, had nominated Fortas to be the Chief Justice to follow Earl Warren as Chief Justice of Supreme Court. At that time, issues were raised, and there was a filibuster over. I think Strom Thurmond led the filibuster against him. And frankly, I think there was some strong sense of anti-Semitism. They didn’t want a — certain people didn’t want a Jewish Chief Justice. And so, he withdrew rather than go down in flames on that vote. But then the Time Magazine, or if it was Life Magazine, began to chronicle Fortas’ tangled relations with a guy named Louis Wolfson, —

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— who was a friend and former client of Fortas, who had provided him with certain — what might be called gifts, which Fortas had to his credit returned. But they continued to look into this relationship, and it sounded like the kind of relationship that Thomas has with Harlan Crow, very close personal relationship by a very prominent — with a very prominent person politically, and ultimately Fortas resigned. He was pressured into resigning, I think by Chief Justice Warren, among others, resigned from the Court. Thomas could do the same thing. He might want to resign. Could he be impeached? Sure. Would he be impeached?

Well, I think there would have been a chance that he could have been impeached when we had a Democratic Congress, House of Representatives a few years ago, because all it takes is a majority vote for impeachment. But remember, impeachment doesn’t mean removal. Impeachment simply means that he’s been charged and has to go to trial before the Senate. And the Senate, as you know, is pretty evenly split now, and it takes a two third’s vote in the Senate to remove a Justice. We know all that from our recent experience within President Trump, who was impeached twice but was not convicted.

J. Craig Williams: Do you think that one of the things that Congress may do is issue term limits? And can they do that?

Dean James J. Alfini: Well, that is — I would think that they can. There’s also been suggestions, as there was during the New Deal with Franklin D. Roosevelt, that the court should be increased in size to water down. What’s now a clear conservative majority.

J. Craig Williams: The famous stitch in time that saved nine.

Dean James J. Alfini: Yeah. There you go. I would think that — I mean, those are two things that have been mentioned. I don’t like the idea of expanding the size of the Court. It just looks like, it’s political gamesmanship. On the other hand, Federal judges likes to say that they’re appointed for life. They have life appointments, which is not what the Constitution says. It says, “During good behavior”, but in effect, they are lifetime appointments. And some of the Justices are pretty young right now. They’re likely to serve 25 or 30 years. I think that’s too long. I frankly think there should be some discussions about term limits for the Justices. That doesn’t mean four years or even six years. I think at a minimum, I’d make it 10 years, 15 maybe, or even 20, but not 30. So, I don’t know. What do you think?

J. Craig Williams: I think that one of the ways that they can reign in the Supreme Court is to enact some term limits, and it seems to me that it might be appropriate to enact them on a similar basis as the Senate serves.

Dean James J. Alfini: Yeah.

J. Craig Williams: I would tighten it up even further because it seems as if there’s likened sometimes appearing in front of Federal Court Judges as to them picking up lightning bolts out of a bucket in the back and throwing them at you.

Dean James J. Alfini: That’s a good analogy. Yeah. No, there is nothing like a Federal Judge to have you quiver in your boots. So, I’d be a little worried about a six-year term limit. I think it takes a while for them to sort of learn on the job, and so I’d give them a little bit more time. Plus, there’s something to be said for precedent. As you know, the Court, I think, is at an all-time low in terms of popularity among the American public. And it’s not just because of these ethical lapses, but the fact that they’re overturning — this Court is overturning some long-term precedent. The Dobbs decision, of course, being the prominent one, but there are other areas as well.

J. Craig Williams: Separation of church and state?

Dean James J. Alfini: Oh, yeah. I taught a First Amendment course this past semester, and where I used to when I was teaching the religion clauses, the Establishment Clause, and the Free Exercise Clause. I used to spend most of the time on the Establishment Clause. Now, I’m spending most of the time on the Free Exercise Clause, because of some very recent rulings of the Supreme Court. I wouldn’t say, they’re throwing the Establishment Clause out the window, but where there’s some conflict between the Establishment Clause and the Free Exercise Clause.

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I’d almost always put my money on them coming out on the Free Exercise side because of recent rulings.

J. Craig Williams: Jim, we just about reached the end of our program, so I’d like to invite you to share your final thoughts and give your contact information so our listeners can reach out to you.

Dean James J. Alfini: Yeah. My final thoughts are that the Chief Justice needs to exercise some leadership here and have his colleagues basically promulgate some ethical rules for the Court. Particularly, rules about receiving gifts, speaking at fundraising events, and recusal when they have to recuse, and some mechanism for deciding on that. And they can have internal rules. There’s nine of them. They may have to require a Justice to come before the Court and explain why they’re not recusing themselves in a particular case and have a vote on it. So, at any rate, I think for transparency and accountability reasons, we really do have to have a Code of Ethics for the Court, and I think the Court needs to take it upon themselves to do that.

My email address is [email protected].

J. Craig Williams: Well, Jim, as we wrap up, thank you very much. It’s been a pleasure having you on the show.

Dean James J. Alfini: Well, thank you, Craig. It’s been a pleasure for me as well.

J. Craig Williams: Well, here are a few of my thoughts about today’s topic. First, Clarence Thomas needs to resign, much in the same way that Jim outlined the resignation of the Supreme Court Justice in the 60s. Same circumstances here, and it’s time for him to step down. Chief Justice Roberts needs to put in effect a set of ethical rules in place to rein in the kind of lavish trips we’ve been hearing about with Justice Thomas, the kind of property exchanges we’ve been hearing about with Justice Gorsuch, and other issues that have come up recently that have caused a lack of confidence in the Supreme Court. People need to feel confident in their judges, and this Supreme Court at this point is simply not believable in too many instances.

Well, that’s it for my rant on this topic. Let me know what you think. If you like what you heard on our podcast today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want Legal, think Lawyer 2 Lawyer.

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