Clarence Thomas, Health Care Reform, and the Case of the Lobbyist Wife

Clarence Thomas, Health Care Reform, and the Case of the Lobbyist Wife

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California Democrat Anna G. Eshoo and 75 other House members have called on Justice Clarence Thomas to recuse himself from the Supreme Court’s almost certain deliberations on the constitutionality of the health care reform law. This demand doesn’t go nearly far enough.

Of course, Thomas should remove himself from any involvement in the issue; as has been amply documented, his wife, Ginni, is a paid lobbyist for the Heritage Foundation, a relentless opponent of the health care law. Then there’s all the other money that Thomas and his wife have received from assorted far-right organizations, not to mention the right-wing ties of her own advocacy group, Liberty Central, a Tea Party promoter that declared “ObamaCare” to be “unconstitutional” on its website last fall. (Those words have since been removed.)

Thomas’s refusal to acknowledge Ginni’s involvement with Liberty Central, much less disclose which far-right interests have funded the organization, is beyond laughable. The far more serious question is whether Thomas lied for over a number of years when he checked “none” in the section of his annual financial disclosure forms that asked about his spouse’s earned income.

It’s hard to believe Thomas misunderstood the forms or overlooked the nearly $700,000 in lobbying fees that his wife is known to have received from Heritage from 2003 to 2007, as he claimed when confronted by Common Cause and the Los Angeles Times in January. He hastily amended the disclosure forms to report the six-figure earnings. The Heritage Foundation’s funders, by the way, include the ultraconservative Koch brothers, the Coors family and Richard Mellon Scaife—all of which have a major interest in any number of Supreme Court rulings. The biggest of these was last year’s Citizens United case, which opened the floodgates for donors like the Kochs to pour tens of millions of dollars into the electoral process—distorting and likely altering the outcome of last November’s elections. Now they're planning to spend a reported $88 million on the 2012 campaigns.

Neglecting to report Ginni Thomas’s earnings was hardly the couple’s first legal or ethical transgression. Last fall, Ginni briefly made news when she left a voicemail message for Anita Hill demanding that she apologize for allegedly slandering Thomas during his Supreme Court confirmation hearings in 1991. Ginni was referring to Hill’s 20-year-old claim that Thomas had sexually harassed her and other women during his years as chairman of the Equal Employment Opportunity Commission—an accusation that Thomas angrily denied but that several other women have since claimed was true. Here again, the issue wasn’t just Thomas’s conduct at the EEOC but the fact that a public official may have lied under oath. That is a violation of the law and cause for his removal from the bench.

Article III, Section 1 of the U.S. Constitution explicitly states that a Supreme Court justice who "lacks good behavior" can be impeached. Courts have interpreted this phrase to have the same level of seriousness as the “high crimes and misdemeanors" clause that can trigger impeachment proceedings by the House of Representatives against any public official, federal judge or, in the case of Bill Clinton, president of the United States.

Then there’s Title 18 of the U.S. Code. It states that any official of the executive, legislative, or judicial branches of the government of the United States who “knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact,” “makes any materially false, fictitious, or fraudulent statement or representation”; or “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” can be prosecuted. Translation: lying to Congress isn’t just an impeachable offense, it’s also illegal.

It's also clearly established that a public official—whether the president, presidential appointees, or judges—can be punished for giving false information (and that's any false information of any nature) to the House or Senate.

Now there’s compelling evidence that Thomas hid the truth about his wife’s pay-off from the Heritage Foundation.

The fact that Eshoo and her congressional colleagues even have to demand Thomas’s recusal points to the bigger problem. The right-wing media echo machine doesn’t just ignore the financial transgressions of conservatives like Thomas; it erects a hard Teflon shield to keep them in place so they can continue to do the right’s bidding. Imagine if, say, Justice Stephen G. Breyer, a Supreme Court moderate, had done what Thomas did. The right-wing attack machine would have waged relentless media and political war to push Congress to bring impeachment charges against him. At the very least, the right would have pounded away on Breyer to recuse himself from any and every case in which they feared his middle-of-the-road views might make a difference in the outcome.

The 1960s-era case of liberal Justice Abe Fortas is a textbook example of the double standard that occurs when a liberal judge violates ethic rules. House Republicans, led by then House Minority Leader Gerald Ford, tried everything they could to impeach him. Fortas eventually resigned. Ford and the GOP didn’t stop with Fortas, however. Ford also led an unsuccessful battle to impeach Justice William O. Douglas, a staunch liberal, the following year.

But in Thomas’s case, no GOP representative has uttered a peep about his legal and ethical duplicity. Don’t expect Thomas, with his unsavory track record of skirting the law and getting away with it, to do the honorable thing and recuse himself from the landmark health care reform case—it's just too important to conservatives. Eshoo and her colleagues, though, were right to at least try. The pity is that they couldn’t go all the way—to impeachment.

Earl Ofari Hutchinson is an author and political analyst. He hosts national Capitol Hill broadcast radio talk show on KTYM Radio Los Angeles and WFAX Radio Washington D.C. streamed on and and internet TV broadcast on

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