I used to think that the basic premise of how public service is supposed to work was understood and agreed on by basically everybody. But in light of the Clarence Thomas ethics scandal, it is worth spelling out what I had previously taken for granted.
Here’s how public compensation works. Government employees get salaries, which are designed not only to entice them to take the job but to wall them off from private influence. A public servant can make some extra money on a side arrangement — say, selling a property they own or writing a book — but those payments would be disclosed, so that the public could see that it is legitimate income rather than a vehicle for disguised payments.
If the president, a Cabinet secretary, a health inspector, or a judge is getting paid by somebody for something other than a market-value transaction, then the person giving them money would have leverage over them. That would be bad.
Most public servants err on the side of caution. Elena Kagan turned down a Jewish-deli gift basket sent by former high-school classmates, because it would at least appear to be compensation — maybe her liberal high-school pals would stop plying her with bagels and lox if she ruled the wrong way on a big case. Thomas, in contrast, has allowed conservative donors to lavish him with gifts and reported none of them.
As a result, Thomas’s lifestyle is utterly dependent on staying in the good graces of Republican pooh-bahs. If he were to, say, break from the conservative bloc on an important legal case, he would be putting at risk his access to free luxury vacations, free private-school tuition for the relative he is raising as a son, free housing for his mother, funds that Leonard Leo is directing to his wife, and perhaps other as yet undisclosed perks.
Thomas’s defenders, having run out of specific defenses for his behavior, have landed on the generalized principle that a Supreme Court justice is entitled to accept all of the off-the-books compensation they wish and have no obligation even to disclose the payments — as long as conservatives trust that person. And since they trust Thomas, there’s no issue.
National Review insists that Harlan Crow, Thomas’s largest benefactor, couldn’t have possibly had any effect on the justice’s opinions, since they are completely implacable. “It is especially farcical to suggest that Crow has influenced the jurisprudence of Thomas, who is famously the most immovable figure in the entire landscape of American law and politics,” suggests Dan McLaughlin in a cover story. “His views were already deeply entrenched by the time the two men met in the late 1990s.” Everybody knows that Thomas never changes his mind on anything, so what’s the problem?
Well, one problem is that the time encompassing Thomas’s famously immovable career is mostly consumed by the time he has known Crow. Thomas arrived at the Supreme Court in 1991. He met Crow in 1996. If you’re doing the math, that means roughly 27 of his 33 years on the bench — i.e., most of the data we have behind his reputation for implacability — have come since knowing Crow.
There is a long-standing debate among football fans over whether Tom Brady was a great quarterback because he was coached by legendary coach Bill Belichick or whether Belichick’s gaudy record is a result of having Brady as his quarterback. The answer is difficult to prove, because both men’s careers were largely coterminous.
Yes, Thomas had already cut a right-wing reputation before Crow entered his life, but that hardly proves his career would have taken precisely the same course without Crow’s influence. Sometimes, Supreme Court justices evolve. Crow’s generosity created a strong financial incentive for Thomas not to.
This problem, ironically, is revealed by another NR attempt to defend Thomas. He and Crow, the magazine editorializes, “are friends because they share similar political views, and because, one imagines, they enjoy each other’s company.” That first part is exactly the problem. If they are friends because they share similar political views, if Thomas were to waver from their shared viewpoint, it could put the friendship at risk.
Now, I don’t think it’s likely that Thomas has shied away from any particular rulings for fear that he will have to find another way to spend his vacations or pay for private school. But a system that relies on trusting public officials to disregard their financial interests is hardly safe from corruption. It’s not really a system at all — more like an open invitation for donors to enmesh judges in social networks that make political defection an expensive proposition.
If Thomas truly thought none of his gifts posed any serious corruption threat, he would proudly disclose them all. Instead, the press has had to dig them up, and there’s no reason to think those currently uncovered constitute their entirety. Crow officially informed the Senate Finance Committee that he would not provide a list of his gifts to Thomas. So his position — as well as that of Thomas, who is perfectly free to disclose a complete list of Crow’s generosity — is that the public isn’t even entitled to know the extent of Crow’s influence over Thomas let alone ban it.
Conservatives are angrily insisting that the whole topic of Thomas’s ethics is nothing but a ruse to discredit the Supreme Court. You would think that, given their generational hammerlock on this branch of government, conservatives would seek to uphold its ethical standards. Perhaps they would consider making Supreme Court justices follow ethical guidelines at least as rigorous as those observed by, say, mid-level bureaucrats. Instead, they have redefined “legitimacy” to mean that justices can take almost any financial compensation they wish from any source without disclosing it, and by dint of their lifetime tenure and ultimate power to settle any disputes over the law, they can say to the public, “You must trust us.”