Risk Update

Judicial Conflicts — New Rules, New Disclosures, New Revelations, New Risks

A reader sent word of: “Clarence Thomas Secretly Accepted Luxury Trips From Major GOP Donor” —

  • “In late June 2019, right after the U.S. Supreme Court released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.”
  • “If Thomas had chartered the plane and the 162-foot yacht himself, the total cost of the trip could have exceeded $500,000. Fortunately for him, that wasn’t necessary: He was on vacation with real estate magnate and Republican megadonor Harlan Crow, who owned the jet — and the yacht, too.”
  • “For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe.”
  • “These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.”
  • “Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country. By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.”
  • “‘It’s incomprehensible to me that someone would do this,’ said Nancy Gertner, a retired federal judge appointed by President Bill Clinton. When she was on the bench, Gertner said, she was so cautious about appearances that she wouldn’t mention her title when making dinner reservations: ‘It was a question of not wanting to use the office for anything other than what it was intended.'”
  • “Virginia Canter, a former government ethics lawyer who served in administrations of both parties, said Thomas ‘seems to have completely disregarded his higher ethical obligations.'”
  • “‘When a justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,’ said Canter, now at the watchdog group CREW. ‘Quite frankly, it makes my heart sink.'”
  • “Federal judges sit in a unique position of public trust. They have lifetime tenure, a privilege intended to insulate them from the pressures and potential corruption of politics. A code of conduct for federal judges below the Supreme Court requires them to avoid even the ‘appearance of impropriety.’ Members of the high court, Chief Justice John Roberts has written, ‘consult’ that code for guidance. The Supreme Court is left almost entirely to police itself.”
  • “Thomas’ approach to ethics has already attracted public attention. Last year, Thomas didn’t recuse himself from cases that touched on the involvement of his wife, Ginni, in efforts to overturn the 2020 presidential election. While his decision generated outcry, it could not be appealed.”
  • “Crow said that he and his wife have funded a number of projects that celebrate Thomas. ‘We believe it is important to make sure as many people as possible learn about him, remember him and understand the ideals for which he stands,’ he said.”

Clarence Thomas says trips paid for by billionaire were ‘personal hospitality,’ not business” —

  • “Thomas said in a statement that Crow and his wife, Kathy, are ‘dearest friends’ and that he and his wife have joined them on family trips for years.”
  • “‘Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,’ Thomas said.”
  • “‘I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines,’ he added.”

Supreme Court justices under new ethics disclosures on trips, other gifts” —

  • “Supreme Court justices and all federal judges must provide a fuller public accounting of free trips, meals and other gifts they accept from corporations or other organizations, according to revised regulations quietly adopted this month.”
  • “The new requirements mark a technical but significant change that lawmakers and court transparency advocates hope will lead to more disclosure by judges and justices and also make it easier for parties in specific cases to request that judges remove themselves from cases when potential conflicts arise.”
  • “Gifts such as an overnight stay at a personal vacation home owned by a friend remain exempt from reporting requirements. But the revised rules require disclosure when judges are treated to stays at commercial properties, such as hotels, ski resorts or corporate hunting lodges. The changes also clarify that judges must report travel by private jet.”
  • “The revisions come after years of pressure from members of Congress, who say the judiciary should follow ethics guidelines closer to those that apply to the executive and legislative branches.”
  • “Rules around subsidized trips are not the only questions of ethics at the Supreme Court recently. Separately, the court has been under pressure to adopt a code of conduct specific to the nine justices. The high court has failed to reach consensus on a policy despite discussion that dates to at least 2019. Last month, leaders of the American Bar Association joined those calling on the court to act, saying that ‘the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.'”
  • “The justices are not bound by the code of conduct that covers other U.S. judges. They say they voluntarily comply with the same ethics standards. But scrutiny of the justices has increased with the court’s heightened profile as a new conservative majority has moved quickly to rule on polarizing cases.”
  • “The new disclosure rules clarifying what constitutes personal hospitality apply to more than 3,000 judges nationwide, a group that includes senior judges, magistrate judges and Supreme Court justices.”
  • “That change would not have been needed at all had the judiciary been following the law the way Congress and the executive branch claimed to be following it, according to Kedric Payne, senior director for ethics at the Campaign Legal Center, an advocacy group. ‘We don’t know if the Supreme Court justices are, on their own, interpreting this rule to allow them to hide these gifts,’ he said of the exemption.”