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View Diary: Clarence Thomas: An (unreported) penny here, a penny there (246 comments)

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  •  The answer to #1 is no. (16+ / 0-)

    Heritage is a think tank; it doesn't get involved in litigation.  

    Also, it wasn't a secret that she worked there.  I really don't get the nondisclosure.

    •  Thanks Adam (7+ / 0-)

      But what about that "spousal non-investment income"? Is that or isn't an issue? And even though the Heritage Foundation is a think-tank they have had some shady incidents in their past

      However, in 2001, without any change in Malaysia's government or policies, the foundation shifted to a very pro-Malaysian view. This shift sparked a controversy over a potential conflict of interest relating to the Heritage Foundation's president, Edwin Feulner, who co-founded Belle Haven Consultants, a company with business interests in Malaysia, during the same time in which the foundation had its shift of views towards the country.

      There could be something going on. It's an area that deserves some investigation.

      I have a purpose in life, I am my cat's doorman.

      by ontheleftcoast on Sun Jan 23, 2011 at 05:35:52 PM PST

      [ Parent ]

      •  That's an issue for Heritage and its funders (4+ / 0-)
        Recommended by:
        peraspera, VClib, coffeetalk, Pris from LA

        Why should I care?

        •  Because if a business with ties to Heritage (7+ / 0-)

          came before the court with a case that would be potential conflict of interest. Wouldn't it? I can't imagine if HyperMegaGlobal Corp was owned by a Heritage Foundation member and that company had a case that went before the SCOTUS it wouldn't be seen as Clarence Thomas having at least the appearance of a conflict.

          I have a purpose in life, I am my cat's doorman.

          by ontheleftcoast on Sun Jan 23, 2011 at 05:46:55 PM PST

          [ Parent ]

          •  I kind of agree, ethically, but legally I (5+ / 0-)

            think that whole "Six Degrees of Separation" thing comes into play after only one or two degrees.  There's have to be a direct relationship of some kind, and even then as note above it's pretty well voluntary for SCOTUS.

            "Faced with what is right, to leave it undone shows a lack of courage." - Confucius

            by IndieGuy on Sun Jan 23, 2011 at 05:50:29 PM PST

            [ Parent ]

          •  I kind of doubt it (4+ / 0-)

            a conflict generally needs to be more direct than that.  Any kind of connection is not enough.  Thomas has to recuse if his wife's employer is a party, maybe if a board member ("Mr. Board Guy") of his wife's employer is a party.  But Mr. Board Guy can have other financial holdings.  He may own Widget Company, he may have a bunch of IBM stock, whatever. I don't think Thomas has to recuse if Widget Company or IBM is a party before him.

            Remember, recusal for SCOTUS justices is generally more narrow than most judges.  For the lower courts, if Judge A recuses himself, another Judge steps right in. That can't happen on the SCOTUS.  Recusal leaves the SCOTUS more open to a 4-4 "no decision" situation, and they don't like that. For that reason, the conflict needs to be pretty direct for a SCOTUS Justice to recuse him/herself.  

            •  recusal (3+ / 0-)
              Recommended by:
              Pris from LA, Just Bob, IndieGuy

              You say recusal is generally more anrrow than most judges.  I actually thought they didn't have to recuse themselves unless they chose to, to the extent that they make their own decisions.  Is that not correct?  

              I had heard of them recusing themselves if they had participated in the lower court decisions, but as I said originally, I'm no lawyer.

              •  It is true they make their own decisions (4+ / 0-)

                but they have certain ethical guidelines, which pretty much apply to when they have a direct contact with a party in a case, as I said.  

                If a justice had such a direct conflict -- like a close relative was a party -- the other party would certainly raise the issue if the Justice didn't recuse, I would think.  But they always recuse in cases of a direct conflict.  I've never seen a situation where we know about a direct conflict and the Justice involved has not recused.  More often, they recuse themselves and don't tell us why, so we are left to guess what the connection is.  

                If there was a situation with a direct conflict and a Justice made noises like he was not going to recuse (again, I've never seen it, as those situations are pretty clear and Justices ALWAYS recuse in that case), I am certain the other Justices would pressure him to do so.  

                •  how about (2+ / 0-)
                  Recommended by:
                  Josiah Bartlett, Pris from LA

                  Scalia being Cheneys hunting buddy and ruling on the energy meeting disclosure stuff? That should have been a recusal.

                  •  Scalia published something on that (2+ / 0-)
                    Recommended by:
                    VClib, TerribleTom

                    basically he said that judges don't recuse based on friendship.  And he's right about that.  I'm a lawyer, and judges are often -- very very often -- friends with the lawyers, or even the parties, that appear before them.  It happens especially in small towns, where if a judge had to recuse himself whenever he was a friend of somebody, he'd hear very few cases.  

                    Maybe in a very, very close personal long-term friendship, like someone you grew up with, were inseparable with, was best man at your wedding -- that kind of thing might call for recusal.  But because it's so subjective, i.e., only the judge knows if his/her friendship with somebody will affect his/her decisions on the case, that kind of thing has to, necessarily, be left up to the discretion of the judge.  And so it is.  There's no ethical rule against deciding a case where friends are involved.  There can't really be, since friendship is subjective, and the only one who knows if the friendship is "close enough" to affect decision-making is the judge.  

                    Most of the really clear cases for recusal are based on economic interests - the judge, or a spouse, will be affected financially in the outcome of the case -- or family relationships (a child, a spouse, a sibling is a party or works for a party, that kind of thing). After that, it's pretty nebulous.  

              •  the only time they are required to recuse (6+ / 0-)

                is when they have a direct financial interest in the outcome of the case.

                problem is, as coffeetalk says, the definition of financial interest is open to interpretation.  Does his wife's financial interest count?  Does marriage make her financial interests his financial interests?  A disclosure form asking for his wife's income seems to imply that they are.

                Clarence "may I live to see him impeached" Thomas.  Been a long time since I wrote that.

                "Politics is like driving. To go backward put it in R. To go forward put it in D."
                I support Bob Massie for US Senate

                by TrueBlueMajority on Sun Jan 23, 2011 at 07:27:00 PM PST

                [ Parent ]

                •  Certainly his wife's DIRECT financial interest (4+ / 0-)

                  counts.  Clearly, if the Heritage Foundation was a party, he would recuse.  Just as Justice Ginsburg would have recused herself if one of her husband's tax law clients was a party to a case.  But neither of them recuses because the spouse's employer has a position or view on an ISSUE before the Court.  No judge recuses on that basis.  Remember Judge Reinhardt on the 9th Circuit -- his wife was an ACLU director, and the ACLU had a definite position on Prop 8, but he (correctly) did not recuse himself from deciding the Prop 8 case, because, even though the ACLU had a very very definite opinion on the outcome of that case, the ACLU was not a party.

                •  Like to know here (3+ / 0-)

                  how he doesn't know $200,000 a yr is coming into the household.  

                  Is that what it takes to keep the liquor cabinet full, the hairdresser & plastic surgeon pd?  I can see $2,000 not making a ripple, but $200,000?  

                  And what about her 'activities' with the Tea Party?

        •  Because this is the same guy (3+ / 0-)

          Who makes decisions about when and how people should follow the law all the time. If it only matters that you don't tell the truth when society can prove you did it for some underhanded motive then you might have a problem understanding the truth when you hear it.  Oh wait, that's called the "good faith" exception right?  Sort of like it's OK when an officer doesn't really have a warrant when he stops you so long as nobody can show any bad faith on his part. I guess this is a good faith exception for SCOTUS. Doesn't matter if you are not a truthful person since nobody can show your lies mattered this time.  I agree there is probably nothing to be done about it. But surely we are entitled to expect our judiciary to be truthful.  

          •  not sure you're listening (4+ / 0-)
            Recommended by:
            VClib, coffeetalk, Pris from LA, cap76
            The nondisclosure is odd, but it's an amendable issue.

            There is no conflicts issue.

            •  Adam, it may be amendable (14+ / 0-)

              in law, and I understand that's what you're addressing. As a layman, however, I react the way most layman would: I see $5,000 as amendable.  $10,000 is amendable.  But $686,000 is lying.  It's not a number that most people forget.  There is no "oops" to $686,000, even for the rich.

              I have been educated on the law, and see that nothing was done that was illegal.

              But what's the point of filling out the form and signing your name to it, if you only have to answer truthfully if someone catches you?

              If separation of powers makes the justices not immune from legislative acts other than impeachment, why go through the charade.

              •  The disclosure has nothing to do with (4+ / 0-)
                Recommended by:
                VClib, Pris from LA, cap76, debaterdanny

                the amount of income she earns.  That is irrelevant.  Judges are allowed to have spouses, and those spouses are allowed to make A LOT of money (take Justice Ginsburg's spouse as an example).  The only purpose of the disclosure is so that people will know WHAT ENTITY employs her, again for the sole purpose of recusal if that entity becomes a party to the case.  Other than recusal, there's no reason whatsoever that you are entitled to know who employs his wife.  

                So, the amount of money she made is irrelevant.  The fact that the Heritage Foundation employs her is relevant IF AND ONLY IF the Heritage Foundation is a party to a case and Justice Thomas does not recuse himself.  Since that has never happened (and since everybody already knew who she worked for), no harm has been caused by the failure to disclose.  It's strange, but because there was no situation when the Heritage Foundation was a party to a case before the SCOTUS, there was no harm here.  That is why, when other judges have had this happen, the only thing that happens to other judges is that they amend the disclosure form.

                •  That makes partial sense. (4+ / 0-)

                  However, I wasn't saying that the amount of money makes a legal difference.  What I meant was that I can see amending his answer is fine if his response was "none", and he subsequently realized he answered in good faith but erred.  As in "oh, yeah, I forgot about that $6,000 of rental income", or "right, there was a subsequent check that makes the number $20,000 higher".  

                  But an average income of more than $100,000 for 4 to 5 years shows a pattern of intentional misrepresentation.  Any other answer defies imagination.

                  Furthermore, just because the Heritage Foundation has not been involved in litigation in the past is no guarantee it will never be involved in the future.

                  •  The presumption is that (3+ / 0-)
                    Recommended by:
                    Adam B, VClib, Pris from LA

                    if Heritage Foundation was a party in the future, he would have recused himself, whether you knew who his wife worked for or not.  Justices recuse themselves all the time without telling us why.  And the other Justices kind of police themselves about stuff like that.  If he didn't recuse in a direct conflict situation, they would have pressured him to do so.  

                    I don't know why he put what he did on the form -- I don't know what it asked (maybe they have a separate property setup and it asked about their joint property, maybe he had his secretary fill it out, I don't know).  All I know is (1) he had no real motive to fail to list it, since it was common knowledge; (2) there was no harm that came about because of his failure to list it, since there was no situation where he should have recused himself because of her employment but didn't (and it was common knowledge anyway); and (3) when there's been a "no harm" situation with all other judges, as the LA Times story points out, it's considered an amendable issue -- no penalties, no fines, just go ahead and amend so everybody will know from now on who she works for (if they didn't already).  

                    •  I understand the legal concept of no harm no foul (3+ / 0-)
                      Recommended by:
                      joynow, Josiah Bartlett, stellaluna

                      But this all seems waaayy too sordid for a Justice on the SCOTUS.  

                      I'm not so assured as you are that he would have recused himself.  In a world where the state's attorney practically leapt out of an elevator when she saw me get on because she recognized I was on the jury, I have a hard time understanding going duck hunting with a party to a court case as you are in the process of ruling on it.  

                      You raise a good point, however, that none of us has seen the form which is at issue.  

                      And how confident are you that her/their only source of income is the Heritage Foundation?  If you are confident you know, is it only because it is common knowledge?  If we know he lied about a huge what makes us confident that's all he lied about?

                      As a layman, I have heard one legal phrase: false in one, false in all.  

                      •  Two points (0+ / 0-)
                        1.  I've seen nothing to indicate that Justice Thomas -- or any Justice -- has failed to recuse himself or herself in any clear conflict situation.  There's been a couple of nebulous cases (Scalia/Cheney friendship, which is not a clear conflict situation), but the nebulous situations are generally left up to the discretion of the judge, ESPECIALLY a SCOTUS Justice. Like I said, that is often policed by other Justices, who have an interest in the integrity of the Court.  And Justices are generally discouraged by other Justices from recusing themselves in anything other than clear conflict situations, because there's nobody to replace them and you're likely to get a 4-4 no decision.  That kind of thing -- whether they have the ethics to recuse in clear conflict situations -- is one of the things that comes up before confirmation, like in the ABA evaluation and recommendation.  If somebody thinks the person is of such bad character that they won't do the right thing, then the ABA recommendation should reflect that, or the Senate is not supposed to vote to confirm.
                        1. I know nothing about their other sources of income, if any (except I know he gets paid as a Justice and I presume he has income from his book).  I only know what I read in the LA time story -- that he didn't report her income from the Heritage Foundation.  
                      •  Interesting. Here's the form (0+ / 0-)

                        at this link.

                        It did not require him to disclose the AMOUNT of his wife's income.  Just to identify the source of any income, like I said, for recusal purposes.  

                        •  just saw this post this a.m. (0+ / 0-)
                          I think his "none" answer is even bolder than I thought yesterday.  And of course the certification comment above the signiture page is bold also.

                          I'm not sure this changes anything.  He clearly certified something that was knowingly false.  If you knew it, and as you point out, it was common knowledge, then the "I forgot" explanation is lame.

                          I would point out, however, that "common knowledge" about his wife's employment was common only among the beltway.  Part of the SCOTUS's moral responsiblity is to hold up the justice system as a bedrock of America.  I don't see how this furthers that moral responsibility.

                •  well said (1+ / 0-)
                  Recommended by:
                  hayden

                  I was confused as heck but that makes the point, legally, very clear.

                  Politically, though, this would seem extremely important.  And as far as the legitimacy of the SC this would seem very harmful.  What else have the justices been doing?

                  "The Commonwealth requires the education of the people as the safeguard of order and liberty." -- Board of Trustees, Boston Public Library

                  by debaterdanny on Mon Jan 24, 2011 at 01:10:41 AM PST

                  [ Parent ]

            •  No, I'm listening (3+ / 0-)
              Recommended by:
              sidnora, zbob, NWTerriD

              And I'm pretty sure we are agreeing that as far as anyone knows, there is no conflicts issue. But I think we do disagree on the import of the nondisclosure. Sure it's amendable--but we are talking about amounts that are also unforgettable. Even for someone over my pay grade. It's the complete absence that concerns. And while it could be as suggested by one comment pure arrogance, I don't find disdain for instruments designed to inform about legitimate issues any more of a persuasive reason than deceit.

              •  It Doesn't Pass the Smell Test (2+ / 0-)
                Recommended by:
                hayden, stellaluna

                OK, so we have people on this site who are knowledgeable about the law and can guide us through the legal wickets.

                But, to the ordinary guy on the street, this simply smacks of, once again, the rich and powerful having separate rules.

                •  The appearance of impropriety (2+ / 0-)
                  Recommended by:
                  hayden, zbob

                  is often just as important as proving actual impropriety. Our entire justice system is premised on respect. When our judges don't care about a loss of respect the entire system suffers. That's why most state court level ethics rules preclude judges from actions that give the appearance of impropriety. SCOTUS may be exempt from those rules but that doesn't lessen the impact that this type of behavior has on respect for the Court in general. Unfortunately, I dont see any hope of self-governance on this issue. So we can probably expect more, not less of this in the future.

                  A morning without coffee is like, well...sleep

                  by stellaluna on Mon Jan 24, 2011 at 07:31:31 AM PST

                  [ Parent ]

              •  One more small point (1+ / 0-)
                Recommended by:
                stellaluna

                This source of income was not disclosed over a continuous period of six years. It's not like Mrs. Thomas accepted a generous honorarium from Heritage one time and it was omitted. She was on their payroll for six years (that we now know of), and at no time during that period did the Justice see fit to disclose.

                That's not just an "oopsie". That's a premeditated lie.

                The only thing we have to fear is fear itself.

                by sidnora on Mon Jan 24, 2011 at 06:49:36 AM PST

                [ Parent ]

    •  that is what is so puzzling to me (4+ / 0-)

      Why?  It just doesn't seem to make sense.

      What if the hokey pokey is what it's all about?

      by Julie Gulden on Sun Jan 23, 2011 at 05:36:40 PM PST

      [ Parent ]

    •  Maybe it's just plain old... (20+ / 0-)

      ..."Screw you" arrogance.  He's not hiding anything, he just doesn't give a crap.  Maybe he figures, "Who's gonna do anything about it?"

      "Faced with what is right, to leave it undone shows a lack of courage." - Confucius

      by IndieGuy on Sun Jan 23, 2011 at 05:43:32 PM PST

      [ Parent ]

    •  Two questions, Adam... (2+ / 0-)
      Recommended by:
      Pris from LA, California06
      1. Just because Heritage doesn't get involved in litigation - and being a conservative think tank - wouldn't they have at least a passing interest in the way laws are decided?
      1. Just because something isn't a secret, does it mean you can bypass disclosure?

      hink

      Hyperbole will be the death of us all!

      by MrHinkyDink on Sun Jan 23, 2011 at 07:21:53 PM PST

      [ Parent ]

      •  Again: don't know why it wasn't disclosed (2+ / 0-)
        Recommended by:
        MrHinkyDink, VClib

        But Heritage "having an interest" in outcomes is no different that Ginsburg's late tax lawyer husband having an interest or Judge Reinhardt's wife -- exec dir of the ACLU of Southern California -- being interested.  

      •  MrHinky - having an interest doesn't matter (1+ / 0-)
        Recommended by:
        MrHinkyDink

        Unless the judge has an ownership interest in the actual parties it does not matter than there is a related party that has an interest. As an example Justice Ginsberg's husband is one of the top tax lawyers in the US. Justice Ginsberg has likely ruled on tax cases where her husband's clients have a significant financial interest and where her husband has advised them to take certain positions with the IRS. That has never been viewed as a conflict, and rightfully so. Because the Heritage Foundation has positions on cases before the court the fact that they are not parties, and don't file briefs in the cases, it does not require Justice Thomas to recuse himself.  

        "let's talk about that"

        by VClib on Sun Jan 23, 2011 at 08:31:08 PM PST

        [ Parent ]

    •  My husband is a plumber. (6+ / 0-)

      When I was a contract specialist, I had to report his salary on an OGE 450 every year.  It doesn't matter where her income came from, it was required to be reported.

      The way to combat noxious ideas is with other ideas. The way to combat falsehoods is with truth. - William O. Douglas

      by PSzymeczek on Sun Jan 23, 2011 at 07:57:32 PM PST

      [ Parent ]

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