As I have documented in post after post after post after post (and so on, seemingly ad infinitum), the Left’s “concerted attack” of feeble ethics charges against Justice Thomas and Justice Scalia routinely involves serious distortions of the relevant facts and law. In this post and one or two more, I’m going to put the Left’s charges in perspective by highlighting some conduct by liberal justices that the Left has been happy to ignore.
Let’s start with the fact that in the mid-1990s, notwithstanding the fact that federal law specifically bars a justice from taking part in a proceeding in which a “spouse … has a financial interest … in a party to the proceeding,” Justice Ginsburg “participated in more than 20 cases in which her husband owned stock in one of the litigating companies.” According to liberal legal ethicist Steven Lubet at the time, “The statute is pretty clear…. At least in some of these cases [EW: and perhaps in all], it appears that Justice Ginsburg should have disqualified herself.” (Ginsburg herself expressly acknowledged two violations in 1997 as well as her initial submission of an inaccurate financial-disclosure report.)
Let me be clear: I have no reason to doubt that Ginsburg’s violations of federal law were entirely inadvertent, and I have no reason to believe (and would find farfetched the notion) that her husband’s financial interests had any impact on how she decided the cases. But here we have stark violations of federal recusal law.
By contrast, the Left has gone bonkers over Justice Thomas’s obviously inadvertent failure to list the widely known fact of his wife’s employer on his financial-disclosure reports. That failure, so the claim goes, “denied the court and the public the ability to fully evaluate [Thomas’s possible] conflicts at the time.” That claim is insipid. Every Supreme Court reporter was surely aware of Mrs. Thomas’s employment at the Heritage Foundation (from December 1998 to October 2008). Her employment was also a matter of public knowledge. Among other things, the Washington Post’s widely read gossip column reported the news in November 1998; a December 2000 article in the New York Times raised conflict-of-interest questions about her position; and the Heritage Foundation’s website surely touted her.
So as between Ginsburg’s inadvertent violation of federal recusal laws and her consequent participation in cases from which she should have recused herself, on the one hand, and Thomas’s inadvertent—and utterly inconsequential—failure to list his wife’s employer on his financial-disclosure forms, on the other, how can anyone seriously regard the latter as more significant (much less as scandalous)?
By the way, my own sheer speculation as to the reason for Thomas’s error is that he might have been advised—correctly—that the financial-disclosure form did not require him to report the amount of his wife’s employment income and that he might have misinterpreted that advice to mean that he should check the box stating that she had “No reportable non-investment income.” Anyone who would find such a mistake damning should realize that Thomas’s critics have routinely made much the same mistake: they have misunderstood the form as calling for him to list not only her employer (the source of her “non-investment income”) but also the amount of her compensation. (And anyone who thinks the form is so clear that no one could misunderstand it hasn’t been exposed to the often byzantine interpretations of seemingly clear ethics provisions that Thomas, especially from his experience in the executive-branch, would have been accustomed to.)