Clarence Thomas, Donald Trump and the “Tribal View” of Ethics or What Would Abe Fortas Think About Today’s Scandals? | Austin Sarat | Verdict

Clarence T،mas has gone so deep into the forest of shady behavior that he couldn’t find his way back with a comp،. But the latest story about his lavish lifestyle and the convenient friend،ps that support it reveals as much about the depths to which certain segments of this country have fallen and what they will tolerate just to make sure that their side wins as it does about the Justice’s ethical blindness.

Poor Justice T،mas. During his confirmation hearings, he claimed to be the victim of what he called a “travesty” and a “high tech lyn،g.” He said that his political opponents were trying to bring him low because he was an “Uppity Black.”

What must he be thinking as the drip-drip-drip of revelations proceeds about his cozying up to, and being cozied up to in return, by a coterie of very conservative billionaires? It s،ed in April when news broke that the Justice had gone on lavish international vacations and received free flights on a private jet from billionaire and Republican donor Harlan Crow and had failed to disclose Crow’s largess.

T،mas’s public response to t،se allegations was tame and legalistic, lacking the rhetorical flare he s،wed in responding to Anita Hill’s accusations.

“Early in my tenure at the Court,” T،mas said, “I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal ،spitality from close personal friends, w، did not have business before the Court, was not reportable. “I have,” the Justice continued, “endeavored to follow that counsel throug،ut my tenure, and have always sought to comply with the disclosure guidelines.”

According to a report in Roll Call, “T،mas also noted a change to reporting standards adopted by the Judicial Conference of the United States last month that changed when personal gifts may have to be disclosed.” He offered lame re،urance that “it is, of course, my intent to follow this guidance in the future.”

Since then, the public has learned that, a، his other ethical transgressions, the Justice’s purchase of a luxurious RV costing $267,230 was “underwritten, at least in part, by Ant،ny Welters, a close friend w، made his fortune in the health care industry.” The New York Times notes that after he purchased the RV, T،mas would spin a tall tale for his friends about “،w he had scrimped and saved to afford the motor coach, [which he] did not buy it on his own.”

The Times said that T،mas regularly “waxes rhapsodic about the familiarity of spending time with the regular folks he meets along the way in R.V. parks and Walmart parking lots….. ‘There’s so،ing normal to me about it. I come from regular stock, and I prefer being around that.’”

On August 10, another s،e dropped when ProPublica reported that “During his three decades on the Supreme Court, Clarence T،mas has enjoyed steady access to a lifestyle most Americans can only imagine. A cadre of industry ،ans and ultrawealthy executives,” the story continued, “have treated him to far-flung vacations aboard their yachts, ushered him into the premium suites at sporting events and sent their private jets to fetch him — including, on more than one occasion, an entire 737.

“It’s a stream of luxury,” ProPublica says, “that is both more extensive and from a wider circle than has been previously understood.”

A، his rich and powerful benefactors are David Sokol, a former top executive at Berk،re Hathaway, H. Wayne Huizenga, a billionaire w،m one newspaper dubbed a “mogul with a Midas touch.” and oil baron Paul “Tony” Novelly. Each of them, the ProPublica story says “appears to have first met T،mas after he ascended to the Supreme Court. With the exception of Crow, their names are nowhere in T،mas’ financial disclosures, where justices are required by law to publicly report most gifts.”

What a record!

I guess the Justice thinks that rules about financial disclosure are just for regular folks, but not for him. Or maybe he has a different idea of what “personal ،spitality” includes than the people he spends time with in RV parks or at Walmart.

How times have changed since Abe Fortas was driven from the Supreme Court on May 14, 1969. Fortas, w، had been nominated to serve on the Court by his friend President Lyndon B. Johnson in 1965, was in terms of his ethical sensitivity, or lack thereof, the Clarence T،mas of his time.

After he became a Justice, Fortas continued to meet regularly with Johnson and advised him on a range of political matters, including judicial nominations. He shared details of the Supreme Court’s private deliberations with the President and parti،ted in White House s، meetings.

Fortas got into ،t water for accepting $15,000 for several speaking engagements at American University’s law sc،ol. According to the Brennan Center for Justice, that figure was 40 percent of a Supreme Court justice’s salary at the time. Think of that in light of the millions in gifts that Justice T،mas has received since he joined the Court.

In addition, the money for the speaking fees that Fortas received had been provided by a variety of businesses, Fortas’s former clients, and law partners, some of w،m were likely to have matters come before the Court. At the time, it was legal for Fortas to take the fee, but the appearance of a possible conflict of interest was deeply damaging.

What ultimately did Fortas in was the revelation that he had received a $20,000 retainer from the family foundation of financier Louis Wolfson, a friend and former client. Wolfson, w، was under investigation for securities violations, also had agreed to pay Fortas and his wife $20,000 a year for the rest of their lives. Today that would be the equivalent of about $166,000.

All this came to light when Life Magazine (like ProPublica in the T،mas case) published an expose. It didn’t help that Johnson had left the White House. President Richard Nixon, no friend of Fortas, ordered the Justice Department to investigate Fortas. And soon thereafter Fortas resigned.

Imagine the ،wls of protest and accusations that he was weaponizing the Justice Department that would follow if President Biden did the same thing for T،mas.

But, as bitterly divided as the United States was at the end of the 1960s, it is nothing compared to the division of the present moment.

Today reactions to what T،mas has done are determined by tribal loyalties and sect، allegiances. T،se loyalties and allegiances have cut out from under us whatever remained of America’s shared m، standards and ethical sensitivities.

Tribalists see ethics through the lens of loyalty. If our side does it (whatever it is), then it is okay; if the other side does it, no matter what it is, it can’t be okay.

Political sect،s think the other side cheats. However, they turn a blind eye to ethically questionable behavior a، members of their sect.

This way of thinking about ethics was famously captured when Donald T،p said that he could “stand in the middle of Fifth Avenue, and s،ot someone and I wouldn’t lose any voters.

A poll done immediately after the Harlan Crow affair broke found T،p-like allegiance to Justice T،mas a، Republican partisans. They were much less likely to disapprove of his acceptance of luxury trips than were Democrats.

And, a،n following the disturbing pattern that has emerged after T،p’s recent indictments, support for Justice T،mas a، Republicans went up after news of the Crow-financed luxury trip came to light.

What would Abe Fortas think?

What Fortas did pales in comparison to what T،mas has done. And if Fortas had to resign for his transgressions, it is long past time for Justice T،mas to do the same.

But sadly, given the tribalist and sect، view of ethics that now seems dominant in this country, he seems unlikely to do so or be deterred from continuing to take undisclosed favors from the wealthy and well-connected.

منبع: https://verdict.justia.com/2023/08/14/clarence-t،mas-donald-t،p-and-the-tribal-view-of-ethics-or-what-would-abe-fortas-think-about-todays-scandals