#880 Musings Beyond the Bunker (Monday March 18)
Good morning,
I have been writing for a while about the scourge that is “whataboutism.” This is the notion that the best way to deflect from the wrongdoings of an actor not merely by minimizing the wrong or minimizing what the response should be but also by pointing out acts by others that somehow justify the bad behavior. While such comparisons may sometimes yield examples that seemingly are similar, upon more careful analysis, they often hardly are so.
As I’ve noted in the past, the egregious attempts by Republicans to disenfranchise voters (typically minorities) through aggressive gerrymandering have elicited the response that “the Democrats do it too”; although, as I’ve noted, not as wantonly, illegally (e.g., violating a court order in Ohio), or successfully. It includes defending the endless stream of vile and often incendiary talk of Donald Trump by returning again and again to Hillary Clinton’s singular comment about “deplorables.” And it manifests itself in the attempt to compare Donald Trump’s serial violations of subpoenas, hiding documents, and lying to investigators with the retention of documents by comparing these acts to prior Presidents and Vice Presidents who, when they determined they had the documents, immediately surrendered them.
Whataboutism also extends in various aspects of our political environment, such as the actions of Supreme Court Justice Thomas.
THE THOMAS WHATABOUTISM
Clarence Thomas was back in the news in January. This time it was regarding a loan on his camper. Apparently, the loan he received to purchase this vehicle—provided by a wealthy conservative supporter—was forgiven in whole or in part. This is just not the first ethical transgression by Mr. Thomas, but the latest in a string of disturbing news about conflicts of interest that swirl around this Supreme Court Justice.
There are those who say his behaviors are consistent with the behavior of other Justices. Mind you, they are not saying he didn’t accept gifts or have egregious conflicts of interest that in any court other than the Supreme Court would lead to recusal. They are not defending his ethical lapses. Rather, they claim that “everyone else is doing it too.” It’s not that he didn’t do some dodgy things—just that he might have done more of them. Whataboutism run rampant…
Justice Thomas has been found to have accepted multiple free gifts from supporters who have business interests before the court. Separately, his wife is materially involved in political matters (including the effort to overturn valid elections) that may come to the Court. He has indicated no inclination to recuse himself from cases involving either of these apparent conflicts.
There are two issues at hand here. The first is the acceptance of gifts from friends who are involved in cases before the court and/or in which they have a material interest. The second issue is what should be done when the justice or the justice’s spouse is involved in a matter before the court. Both would seem obvious conflicts requiring both disclosure and recusal. This sort of thing should be met with opprobrium from all camps.
THE RULES FOR OTHERS DON’T APPLY HERE
Defenders of Justice Thomas are correct in one respect. While his behaviors would subject him to ethical constraints in many other circumstances, there have been no similar guardrails in place for the Supremes. Clear rules of ethics govern conflicts of interest for members of the bar (lawyers) and members of the bench (judges). In any court in the land, other than the Supreme Court, there are strict rules that are enforced by the courts themselves or by State sanctioned bodies charged with judicial oversight. In all other courts, judges police themselves and advise each other regarding ethical issues and lapses. When one has an interest in a case or its parties, a judge recuses him or herself. But the Supreme Court has been exempt from these standards. When faced with the possibility of ethical limits, Justice Alito and others have gone to great lengths to explain that requirements of Supreme Court ethics and financial reporting is voluntary and not mandatory.
It seems completely illogical that our Supreme Court justices are held to a LOWER standard behavior than all the other courts in the land. Actually, let me restate that. Until recently, they have been held to NO standard whatsoever. Their decisions on ethics have been personal and voluntary, as opposed to being held to the same standards we expect of all other jurists in America. Their ethics aren’t even monitored by each other; they self-report. Some, such as Justice Amy Coney Barrett, have come out for ethical rules to be imposed upon the Supreme Court.
Republicans and Democrats alike should be supporting Justice Barrett and yelling from the rooftops that we need ethics rules for the court. It would be better if the court imposed these rules voluntarily. And, while the Court recently announced a weak attempt to establish ethical standards, it was not enough. Perhaps it is time for Congress to impose more stringent rules—rules that are consistent with those that govern other jurists.
Oddly, the Wall Street Journal editorial page has come out to suggest that the focus on ethics is somehow politicizing the court. This is an argument I don’t understand. More ethics, particularly from the non-political branch of government (which increasingly is looking like just another political branch), not only is appropriate but also helps avoid the perception of unrestricted politicization of the court.
BACK TO THOMAS AND TRAVEL
Some people have suggested, “Hey, look over here; other people are doing this.” The most often cited example of a justice accepting gifts from wealthy friends who may have matters before the court is Justice Stephen Breyer, recently retired from the court. If the allegations against him are accurate, his behaviors would seem similar to those of Justice Thomas (albeit perhaps less frequent), in that he accepted free travel and had at least one example of a conflict of interest. But even if Justice Breyer may have behaved poorly does not justify Justice Thomas’s behavior. They both can be wrong. That said, today Justice Thomas is on the court and he will no doubt hear cases that touch upon the economic interests of his friends. The argument that a retired Justice also might have transgressed is a red herring. Thomas should be recusing himself, yet there are no rules compelling him to do so.
Some have responded to the claims of lavish travel by Justice Thomas by providing an exhaustive list of travel made by all justices for which they did not pay. This rather detailed list tells only part of the story. When one digs into the chart and compares the sponsors of the trips, most of the “lavish trips” taken by most justices are paid for by law schools and bar-related organizations. Few have availed themselves of the frequency of travel for purposes that can only be described as personal pleasure trips with litigants and potential litigants as has Mr. Thomas.
CONFLICT OF INTEREST IN MATTERS BEFORE THE COURT
As to the second matter, where a Justice or their spouse actually has an interest in a case before the court, the rule should be even more self-evident. Again, in every court in the land (except this one), a judge would be compelled to recuse him or herself. There really are only two ways to address a conflict—either remove the conflict or recuse yourself. Again, Justice Breyer’s circumstance is used to illustrate that justices other than Justice Thomas have faced conflicts of interest, but upon further analysis, the cases are quite different:
The Breyer example often cited by the right is his wife’s relatively minor stock ownership in a company related to a matter that was before the court. Upon learning of this, Breyer’s wife sold the stock, eliminating the economic interest and avoiding the appearance of impropriety. Certainly a case can be made that “curing” the conflict was insufficient, but the better argument is that Justice Breyer made a good faith effort to remove the conflict before hearing the case.
Justice Thomas’s case is more difficult and incapable of “cure.” In this instance, his wife is a notable proponent of the lies associated with the 2020 election and the attempt to overturn the election results. She was in regular communication with those in the White House who hoped to thwart the will of the people in that election. Cases involving matters regarding January 6th and the attempted coup are now reaching the Court. One would hope Justice Thomas would recuse himself. My hunch, however, is that he defiantly will soldier on, not being bound by ethical constraints.
The issue at hand for me is whether we have the right to expect the members of the highest court of the land to act as ethically as all the other subordinate courts. They must adopt tougher rules governing their behaviors or Congress must step in and lay down guidelines. The question is whether one of our major political parties is going to give the Supreme Court (or, to be more precise, Justices that share their political views) a “free pass” from being held to ethical standards. So far, it’s more about the politics than the ethics. Ethics should prevail. We live in dangerous times.
Have a good day,
Glenn