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By Wendy Stone Long
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A recent Washington Post headline labels the month-long torrent of attacks among left-of-center media and Senate Democrats "The polite struggle to do something—anything—about Clarence Thomas."
The claim, now ubiquitous on the Left, is that the Supreme Court Justice has been bought by billionaire businessman Harlan Crow and has filed false federal financial disclosure forms to cover up the fact. Senator Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) have called for a Justice Department investigation of Justice Thomas.
The only place these lies may be considered "polite," however, is the all-white beach and sailing clubs frequented by the Whitehouses.
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The New Republic was more direct in its recent headline: "The Democrats Need to Destroy Clarence Thomas's Reputation."
We are witnessing a malicious, choreographed, second "high-tech lynching" of the Justice, 32 years after the one he endured during his Supreme Court confirmation hearings.
It is true, of course, that the Left is desperate to do "something—anything" to take down the first black originalist constitutionalist on the Supreme Court of the United States, the intellectual leader of the Court, the best-known and best-loved sitting Justice.
The mob tried to take down Justice Thomas in 1991 for his original thinking about restoring American jurisprudence to the text, history, and principles of the Constitution. Hakeem Jeffries, a college student at the time, compared him to a "House Negro." But they never thought it would come to this: after 32 years, his scholarship and writing influence majority opinions on the Court and have commanded the respect of a generation of legal scholars.
Disclosure and context: I've known the Justice since 1987 and was one of his law clerks at the Supreme Court in 1997 and 1998. For the hundreds of us (who, by the way, hold divergent political views) who have worked for him, and for the Justices who have served with him, it's easy to see the absurdity in the allegations. Sitting Justices avoid political and media disputes, but retired Justice Stephen Breyer spoke for them all when he publicly dismissed the corruption claims. Having "sat next to him on the bench for 28 years," Breyer pronounced Justice Thomas was "a man of integrity."
Other judges and Justices have made errors and omissions on federal financial disclosure forms (including Justice Ketanji Brown-Jackson omitting some of her own and her husband's income). It can't be that disclosure errors are okay if you're the "right kind" of black judge.
Congress lacks constitutional power to compel Supreme Court Justices to file such reports in the first place. The Justices have gone along with it since 1978, presumably in the spirit of voluntary transparency. Congress has no power to impose such rules on the Court, or to "enforce" rules it makes for itself. (See U.S. Constitution, Article III—it's short enough for anyone to read.) Once the Senate appoints a Justice following a presidential nomination, its only constitutional power is to convict by trial if the House impeaches a Justice for failure of "good behavior."
The mob howls about the 2014 purchase by Crow of the Savannah house in which the Justice's 94-year-old mother lives—the very house that was the leitmotif of Thomas' memoir, My Grandfather's Son, where Thomas and his brother were raised by their grandfather, "Daddy," with hard work, discipline, and tough love.
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Crow bought the white cinderblock house, with two vacant lots, for $133,363, to preserve them for history. He probably concluded that no one else was going to do so—and with good reason. Yale Law School seems to have misplaced its portrait of Justice Thomas. The Smithsonian African American History Museum in Washington, D.C., opened with no mention of Justice Thomas except as the object of Anita Hill's accusations.
The mob howls that Crow paid tuition for a young relative of Justice Thomas' to attend private school. Two friends engaged in private acts of charity and love to care for and educate a child. This, if Thomas' critics are to be believed, is now a federal offense.
C.S. Lewis' definition of a friend is someone who looks out at the world and sees what you see. Friends share views about what's important—in this case, about America and the Constitution. That's Harlan Crow and Clarence Thomas.
Not a single member of the news media-Congressional lynch mob has identified a quid pro quo, the necessary element of any corruption accusation. Did Crow bribe Thomas to write his concurrence in Dobbs v. Jackson addressing substantive due process? To declare the right to keep and bear arms a personal individual right? To opine that the Dormant Commerce Clause doctrine is a sham?
Or were these all reflections of consistent views the Justice has held his entire career?
After all, the whole reason for the first "high-tech lynching" was that Justice Thomas' views on the Constitution were well-known at the time of his nomination. His jurisprudence hasn't changed in 32 years. His rulings and opinions are consistent with the principles he held long before he met Harlan Crow.
The mob's latest claim is that Justice Thomas failed to recuse himself when Crow had "business before the Supreme Court."
But the "business" in question was never before the Court. A 2005 petition for a writ of certiorari (request for the Court to hear a discretionary appeal) by a Crow-related company was one of the roughly 10,000 such petitions filed each year and was rejected, by all nine Justices, along with 99 percent of all other appeal requests. It never came before the Court. Crow's name wasn't on the petition, and neither he nor Justice Thomas was aware of it.
All of these lies have traveled, as the saying goes, halfway around the world before truth has a chance to put its boots on. A group of Senate Republicans sent a letter this week to Finance Committee Chairman Ron Wyden, quoting former attorney general Michael Mukasey, who testified that "the public is being asked to hallucinate misconduct so as to undermine the authority of Justices who issue rulings with which these critics disagree."
This isn't just a second "high-tech lynching" of Justice Thomas. It's a raw power grab by those willing to destroy the integrity and independence of the last institution of federal government that American citizens trusted, even a little bit, and to kill honest debate about the real constitutional issues facing our republic.
Wendy Stone Long is an attorney and former law clerk to Supreme Court Justice Clarence Thomas.
The views expressed in this article are the writer's own.
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