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  1. #1

    The Justice & The Magnate

    June 18, 2011

    Friendship of Justice and Magnate Puts Focus on Ethics


    PIN POINT, Ga. — Clarence Thomas was here promoting his memoir a few years ago when he bumped into Algernon Varn, whose grandfather once ran a seafood cannery that employed Justice Thomas’s mother as a crab picker.

    Mr. Varn lived at the old cannery site, a collection of crumbling buildings on a salt marsh just down the road from a sign heralding this remote coastal community outside Savannah as Justice Thomas’s birthplace. The justice asked about plans for the property, and Mr. Varn said he hoped it could be preserved.

    “And Clarence said, ‘Well, I’ve got a friend I’m going to put you in touch with,’ ” Mr. Varn recalled, adding that he was later told by others not to identify the friend.

    The publicity-shy friend turned out to be Harlan Crow, a Dallas real estate magnate and a major contributor to conservative causes. Mr. Crow stepped in to finance the multimillion-dollar purchase and restoration of the cannery, featuring a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s.

    The project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

    The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.

    In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

    Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

    The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them.

    While the nonprofit Pin Point museum is not intended to honor Justice Thomas, people involved in the project said his role in the community’s history would inevitably be part of it, and he participated in a documentary film that is to accompany the exhibits.

    Deborah L. Rhode, a Stanford University law professor who has called for stricter ethics rules for Supreme Court justices, said Justice Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are or whether he’s being centrally honored by the museum.”

    On the other hand, the restriction on fund-raising is primarily meant to deter judges from using their position to pressure donors, as opposed to relying on “a rich friend” like Mr. Crow, said Ronald D. Rotunda, who teaches legal ethics at Chapman University in California.

    “I don’t think I could say it’s unethical,” he said. “It’s just a very peculiar situation.”

    Justice Thomas, through a Supreme Court spokeswoman, declined to respond to a detailed set of questions submitted by The New York Times. Mr. Crow also would not comment.

    Supreme Court ethics have been under increasing scrutiny, largely because of the activities of Justice Thomas and Ms. Thomas, whose group, Liberty Central, opposed President Obama’s health care overhaul — an issue likely to wind up before the court. Mr. Crow’s donation to Liberty Central was reported by Politico.

    It is not unusual for justices to accept gifts or take part in outside activities, some with political overtones.

    Justice Stephen G. Breyer has attended Renaissance Weekend, a retreat for politicians, artists and media personalities that is a favorite of Democrats, including former President Bill Clinton. Justice Ruth Bader Ginsburg participated in a symposium sponsored by the National Organization for Women’s Legal Defense and Education Fund, and a philanthropic foundation once tried to give her a $100,000 achievement award. She instructed that the money be given to charity.

    But in the case of Justice Thomas and his dealings with Mr. Crow, the ethical complications appear more complex.

    Conservative Ties

    Mr. Crow, 61, manages the real estate and investment businesses founded by his late father, Trammell Crow, once the largest landlord in the United States. The Crow family portfolio is worth hundreds of millions of dollars and includes investments in hotels, medical facilities, public equities and hedge funds.

    A friend of the Bush family, Mr. Crow is a trustee of the George Bush Presidential Library Foundation and has donated close to $5 million to Republican campaigns and conservative groups. Among his contributions were $100,000 to Swift Boat Veterans for Truth, the group formed to attack the Vietnam War record of Senator John Kerry, the 2004 Democratic presidential candidate, and $500,000 to an organization that ran advertisements urging the confirmation of President George W. Bush’s nominees to the Supreme Court.

    Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

    The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’s arguments. The project director, an institute fellow named Edward Blum, said the institute supported his research but did not finance the brief filings or the Texas suit, which was litigated pro bono by a former clerk of Justice Thomas’s.

    “When it came time to file a lawsuit,” he said, “A.E.I. had no role in doing that.”
    “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period,” said Arn Pearson, a lawyer with Common Cause. “If any other federal judge was doing it, he could face disciplinary action.”

    The justices are not bound by the federal judiciary’s conduct code, because it is enforced by a committee of judges who rank below the justices. Even so, Justices Breyer and Anthony M. Kennedy said in testimony before Congress in April that the justices followed the code.

    Beyond the code, the justices must comply with laws applying to all federal officials that prohibit conflicts of interest and require disclosure of gifts. Justice Thomas’s gift acceptances drew attention in 2004, when The Los Angeles Times reported that he had accumulated gifts totaling $42,200 in the previous six years — far more than any of the other justices.

    Since 2004, Justice Thomas has never reported another gift. He has continued to disclose travel costs paid by schools and organizations he has visited for speeches and teaching, but he has not reported that any travel was provided by Mr. Crow.

    Travel records for Mr. Crow’s planes and yacht, however, suggest that Justice Thomas may have used them in recent years.

    In April 2008, not long after Mr. Crow bought the Pin Point property, one of his private planes flew from Washington to Savannah, where his yacht, the Michaela Rose, was docked.

    That same week, an item appeared in a South Carolina lawyers’ publication noting that Justice Thomas was arriving aboard the Michaela Rose in Charleston, a couple of hours north of Savannah, where the Crow family owns luxury vacation properties. The author was a prominent lawyer who said she knew of the visit because of a family connection to Mr. Crow.

    Justice Thomas reported no gifts of travel that month in his 2008 disclosure. And there are other instances in which Justice Thomas’s travels correspond to flights taken by Mr. Crow’s planes.
    Among the questions The Times submitted to Justice Thomas was whether he was on any of those flights, and if so, whether the colleges reimbursed him or Mr. Crow. The colleges declined to comment.

    One item not required to be reported in Justice Thomas’s financial disclosures is the millions of dollars Mr. Crow is spending on the museum. That is because the money is not being given to the justice as a gift.
    "Even if you dance for your enemy on the rock, he will accuse you of splashing water on him." ~ African Proverb

  2. #2

    Re: The Justice & The Magnate

    This is what Rep. Weiner was working on when, well, you know what happened.
    "Even if you dance for your enemy on the rock, he will accuse you of splashing water on him." ~ African Proverb

  3. #3
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    Re: The Justice & The Magnate

    I read this story yesterday in the Times. While raising some eyebrows, it's also clear that with the Supremes not being bound by the Federal Judiciary's Code of Conduct, Thomas has not done anything in violation of the law or regs with respect to introducing Crow and Varn . Even the article states that the financing of the museum does not appear to violate anything.

    What the article proves is that following the Code of Conduct needs to be a requirement for the Supremes (as it is by all other members of the Federal bench). Be interesting to see if the Senate moves in that direction - and if they do, whether a subsequent Court hearing would challenge the Senate action as an intrusion on the balance of powers.
    Last edited by Moose; 06-20-2011 at 11:24 AM.
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    Re: The Justice & The Magnate

    Quote Originally Posted by Ti-Amie View Post
    This is what Rep. Weiner was working on when, well, you know what happened.
    I wonder if Clarence texted Anita when Weiner's pictures came out and referenced Long Dong Silver
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  5. #5
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    Re: The Justice & The Magnate

    Quote Originally Posted by Ti-Amie View Post
    This is what Rep. Weiner was working on when, well, you know what happened.
    Funny how quickly the Dems cast Weiner off yet kept Vitter, a republican, around. I am SO HATING both parties these days.
    Open wide.

  6. #6

    Re: The Justice & The Magnate

    Common Cause Letters

    The Honorable John Roberts
    Chief Justice
    United States Supreme Court
    1 First Street Northeast
    Washington D.C., DC 20543

    May 9, 2011

    Dear Chief Justice Roberts:

    I am writing on behalf of Common Cause to seek your help in clarifying the applicability of the Code of Conduct for Federal Judges to the U.S. Supreme Court, and how the Court holds justices accountable to its ethical standards.

    Public confidence in the Supreme Court and in the fair administration of justice is vital to our democracy, and the best way to bolster that confidence is to ensure that the highest court is committed to maintaining the highest standards for integrity and impartiality. Unfortunately, the attendance of several justices at politically charged events, as well as a few high-profile controversies concerning the appearance of bias, have called that commitment into question in recent years. The widespread perception, held by the Judicial Conference of the United States, other legal experts, the media and opinion leaders alike, is that the Code of Conduct that every other federal judge lives by is not binding on the Supreme Court. Indeed, the introduction to the Code states that it “applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges" but does not mention the Supreme Court.

    Against that backdrop, we paid close attention to statements by Justices Kennedy and Breyer when they fielded questions about the Code and its applicability to the Court during an appearance before the House Appropriations Financial Services Subcommittee on April 14, 2011.[1] Both justices declared that the Court has agreed internally to be bound by the Code, and that they believe its canons are currently being followed by their colleagues.

    “The code of conduct does apply to the justices in the sense that we have agreed to be bound by them. Those rules are public and if there is some question that we haven’t complied with the letter or spirit of those rules, there can be comment about that. Of course the court has to follow rules of judicial ethics. That’s part of our oath, that’s part of our obligation of neutrality.” – Justice Anthony Kennedy

    “ I think all the judges do what I do, which is we do follow the rules. They do apply. And somehow it’s gotten around (that) they don’t. Well, they do. I apply them.”—Justice Stephen Breyer

    While these comments were most welcome, they require further clarification. A May 3 letter signed by Kevin Cline, the Court’s Budget Manager, significantly diverges from Justice Kennedy’s testimony that the Court has agreed “by resolution” to be bound by the Code. Mr. Cline indicated that the Court considers the Code “principally advisory in nature, even for lower court judges.” He also suggested that the resolution referred to by Justice Kennedy deals with the Court’s compliance with Judicial Conference regulations on gifts, outside earned income, honoraria and outside employment, rather than with the Code. We urge that you resolve these discrepencies by releasing the text of the resolution, the date of its adoption and the vote by which it was adopted, if one was taken.

    If Mr. Cline’s description of the resolution and of the Court’s view on the applicability of the Code is accurate, we urge the Court to adopt and publicize a new resolution, fully embracing the Code and establishing mechanisms for its enforcement on all the justices. We suggest the resolution provide for a formal process by which the Court can advise individual justices on issues concerning real and potential conflicts of interest, recusals, personal financial disclosures and other ethical matters. We also urge that it provide for the public release of regular reports by the Court on its compliance with the Code.

    Our concerns on these subjects are driven by activities of some members of the Court that appear to be at odds with Canons 4 and 5 of the Code of Conduct. Canon 4 prohibits a judge from personally participating in fundraising activities, and Canon 5 explicitly prohibits making “speeches for a political organization” or engaging “in any other political activity.” We call your attention to the following instances in which justices have attended fundraising events and appear to have engaged in political activity:

    Justice Alito attended annual fundraising galas for the American Spectator in 2008 and 2010. Tickets for the events sold for $250 to $25,000.[2]
    Justice Thomas was the headline speaker at the Manhattan Institute’s Wriston Lecture in October, 2008. This event reportedly required a minimum $5,000 donation to the Manhattan Institute.[3] Justice Alito headlined the same event in 2010.[4]
    Justice Alito headlined the Intercollegiate Studies Institute (ISI) fundraiser in April 2009, dubbed the ‘Annual Dinner for Western Civilization.’ This event reportedly raised $70,000 for the ISI.[5]
    Justice Scalia and Justice Thomas were “featured” at strategy and fundraising retreats organized by industrialists David and Charles Koch in January 2007 and January 2008 respectively. These events are highly political, and attended by an elite group of Republican donors and officials, conservative leaders, and captains of finance and industry. While the attendance lists, agendas, and other details of these events are closely guarded, it is known that the Koch brothers use these events to raise funds for their wide-ranging political activities. At the January 2011 Koch event in Rancho Mirage, California, $49 million was reportedly raised to be used in the 2012 election cycle.[6]

    If the Court has not already adopted a resolution embracing the Code of Conduct for United States Judges, we urge you to do so now. The interest of justice demands that the Court go the extra mile to assure lawyers, litigants and the general public that the justices hold themselves to the same ethical standards as every other federal judge, and to explain how those standards are enforced. Because of the Court’s unique place in our system of government, the oversight that might otherwise be provided by the Judicial Conference or committees of Congress is limited.

    We hope you and your colleagues will take these important steps.


    Bob Edgar
    President and CEO

    * Appendix


    Excerpts of testimony before the House Appropriations Financial Services Subcommittee on April 14, 2011. (beginning at 25:46 into the hearing)

    Congressman Serrano (D-NY): “Recently there have been several proposals to apply Judicial Conference’s judicial codes of conduct to Supreme Court justices, and to make recusal decisions by the justices more transparent to the public. Currently the code of judicial conduct applies to all other Supreme Court Justices, but is only advisory for Supreme Court Justices. Do you have any thoughts on these proposals? Do you believe that the Code of Judicial Conduct should apply to Supreme Court justices? Or are there good reasons for not doing so?”

    Justice Kennedy: “Let my colleague Justice Breyer comment on my answer and add his own insights. The code of conduct does apply to the judges in the sense that we have agreed to be bound by them. Those rules are public and if there is some question that we haven’t complied with the letter or spirit of those rules, there can be comment about that. Of course the court has to follow rules of judicial ethics. That’s part of our oath, that’s part of our obligation of neutrality. And so far as making them binding, there’s a legal, or constitutional dissidence or problem. Those rules are made by the Judicial Conference of the United States, which are district and appellate judges. And we would find it structurally unprecedented, for district and circuit judges to make rules that Supreme Court judges have to follow. There’s a legal problem in doing that. I really think there is no problem at all in since by resolution we have agreed to be bound by those. We’re also of course bound by the ethics in government statutes for conflicts of interest and so forth.”

    Justice Breyer: “The answer to your question -- should the Judges be bound to the same rules of ethics -- I think is yes. To ask a different question -- does that mean you should legislate? There I think the answer is no. And the reason that I get to the two different answers, is because I personally have seven volumes of ethics rules, the same that every district judge has, right in my office, and when I find a difficult question, I go to those volumes, and try to apply them as a district judge would. And I have people whom I call who are ethics experts really if I find a difficult problem. Well, say “why not legislate?”

    The only reason not to legislate, I suppose, is one the kind of theoretical -- get into a problem with can you legislate and where on the Supreme Court – which people love to debate, and I love when they have such a question comes “where does the power lie” not to answer the question and go onto something else, because I think it produces heat and not too much light. (sic)

    The other reason I think perhaps never happens anymore, but when I worked on the staff of the Senate sometimes a bill which we thought was perfect would get to the floor of the Senate and the words that came out didn’t seem to be quite the same words that went in. So I didn’t know always what was going to happen when legislation started. But those are rather detailed technical, and they are not real objections. Your basic question is right and I think it’s followed, I think all the judges do what I do, which is we do follow the rules. They do apply. And somehow it’s gotten around (that) they don’t, well they do. I apply them.

    And I’d add one other thing. It’s a different thing, which I discovered, being a Supreme Court justice in respect to ethics and disqualification than a District Court or Court of Appeals. When I was on a Court of Appeals, or District Court, and a tough question came up, I’d say I’ll take myself out of the case. Who cares? They’ll find somebody else. But you can’t do that on our court. So you have to think about in a different way and you have to remember you also have a duty to sit. Because there’s no one to replace me if I take myself out. And that could sometimes change the result. So I have to think long and hard, in a way that I didn’t have to think long and hard on the Court of Appeals."

    Justice Kennedy: “If I may just add: As Justice Breyer indicates if we had one of us recuse from a case and we come out 4 to 4 we wasted everyone’s time. It could be a criminal conviction automatically affirmed. And so we do have special…(inaudible) We have in the Judicial Conference of the United States, the Committee on the Codes of Judicial Conduct. And I served – I think there were five us of who served on that committee for more years than I would like to remember. That committee is a very hard working committee. It gets requests from judges, setting forth what the ethical problem is: the judge is in mid-trial, he or she’s invested years and years of time, and suddenly there is a marriage in the family and there is a conflict of interest because the new spouse owns some stock. Does that judge have to leave after investing years in the litigation? Those are the kind of things we try to answer. And the committee is open and receives questions from us. We can ask for advice from the Committee on the Codes of Judicial Conduct. And we do ask for that advice.

    Congressman Serrano:.Madame chair, let me just close by saying that I would accept both of your statements that you’re very careful and the court is very careful in how it deals with these things. So I guess the next question for yourselves – not for me to ask – is why are there now proposals floating around? What has happened recently that had had people ask these questions like they’ve never asked before?

    Justice Breyer: One thing I think (and) this is just a guess is that somehow people got the idea that we don’t apply these same seven volumes. That’s just a wrong idea. And I think that came from the fact they’re not legally binding on us in the sense that they might be on a court of appeals judge. And that was interpreted to mean that we don’t apply them, which is wrong. And then that was written about in the newspaper and everybody thought that was so. But I think that’s what happened, and I suppose also always -- not always, almost always – there’s some controversial thing going on. And the reason that it’s more controversial in our court is: one, we’re more visible and two, we do have this duty to sit, which can make the question of answering an ethics question more controversial. So I think those two things combine. That’s just my guess as to why this is happening.
    "Even if you dance for your enemy on the rock, he will accuse you of splashing water on him." ~ African Proverb


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