The continuing effort to discredit the Supreme Court justice is growing ever more desperate.
The continuing effort to discredit the Supreme Court justice is growing ever more desperate.
T here is an old lawyer’s joke: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
It looks like ProPublica, a self-styled “independent, nonprofit newsroom that produces investigative journalism with moral force,” has now descended to the anonymous humor of the bar. Its writers have waged a yearlong campaign against Justice Clarence Thomas, to the point of accusing him of accepting financial gifts from conservative donors who hoped to influence him. These charges have failed. Not only has the Wall Street Journal editorial page debunked their facts, Justice Thomas has complied with the judicial-ethics rules, and, most important, has always followed the central principle of judicial honor: to have no personal interest in any case that appears before the Court.
So now that ProPublica has lost on the facts and the law, it has leveled its most shocking allegation of all — that Justice Thomas believed in 2000 that federal judges were underpaid! The horror. To spin this story of a threat to the Constitution itself, ProPublica interviewed former Florida representative Cliff Stearns, who allegedly sat with Thomas on a plane. Thomas allegedly said that Supreme Court justices were underpaid and that if Congress didn’t act, “one or more justices will leave soon.” From this stray comment, ProPublica claims that Justice Thomas himself was threatening to leave the bench if Congress did not increase his pay. (Don’t let Chuck Schumer find out or the judiciary will never see another penny.)
Of course, ProPublica nowhere finds any statement, public or private, where Thomas has ever said anything of the kind. And as someone who first clerked for Thomas in 1993 and has stayed in close touch with him over the past three decades, I have never, ever heard him complain about his salary or talk about resigning. Not once. If anything, I have heard him make remarks that mirror my own feelings as a first-generation immigrant: It is a privilege to serve the American people, no matter what the cost; it is not a burden but a blessing to be able to repay a nation that has done so much to promote liberty and freedom at home and throughout the world. Justice Thomas grew up in some of the worst poverty in the United States in living memory; he deliberately chose a career in public service and shows little interest in the fancy houses, nice cars, and showy restaurants and parties you might see in The Lincoln Lawyer (though apparently ProPublica believes that any Thomas friend who has a nice home is committing a felony). I expect that Thomas will serve on the bench for as long as his health permits.
The sad thing is that ProPublica missed a story of real substance. In 2000, the federal judiciary as a whole was underpaid because Congress had violated the Constitution. Article III of the Constitution provides for judicial independence, one of the core principles of the separation of powers, by providing that “Compensation” for federal judges “shall not be diminished during their Continuance in Office.” But for more than a decade, Congress had blocked cost-of-living increases — the very same that go out to every recipient of federal benefits or wages — for judges. Congress had imposed an effective pay cut on judges by allowing inflation to erode the real value of their compensation. The real story: Congress had linked its own pay to that of the judiciary and was hoping that pressure to increase the judges’ pay would allow it to quietly raise its own.
Thomas, if he had spoken to Stearns at all about this, was no doubt making the point that the judiciary, as an independent third branch of government, was inadequately funded. This would have nothing to do with Thomas’s own personal finances, which seemed to be fine. (Like most Americans, he had to borrow money for major life expenditures such as buying a house or a car — another sin in ProPublica’s book.) Reporting what other judges were saying would be Thomas’s right and even, I think, his duty, if matters reached the point of affecting the ability of judges to continue to serve the courts. In fact, no judge would have had to pressure any member of Congress for pay increases secretly, as ProPublica implies. Judges were only too happy to do so in public. At this time and for years before and after, federal judges, including several justices, were testifying publicly before Congress to seek more appropriations for judicial pay. Matters came to such a head that a group of federal judges even sued to force Congress to live up to its constitutional duties. The judges won, as Christopher Landau, their lawyer (and a former ambassador to Mexico and a Thomas clerk) describes. The result was such a slam dunk that the United States government threw in the towel and dropped any appeal to the Supreme Court.
ProPublica is helping to support a political attack on a Court that the Left hates, one that has returned abortion to the states, strengthened Second Amendment rights, and ended racial quotas in schools. Accordingly, ProPublica has accused Justice Thomas of accepting fancy trips from Harlan Crow, a wealthy conservative developer, and even accepting large financial gifts without disclosing them on disclosure forms. The Wall Street Journal editorial page has debunked these accusations and found that Justice Thomas followed the rules, aside from an error in filing the right forms. It concluded that the Pro Publica stories constitute “crude propaganda — lousy opinion writing and unreliable information rolled into one and deceptively packaged as straight news.” Sadly, ProPublica and the Thomas critics it encourages have now descended to pounding the table and yelling as part of their campaign against a Court whose decisions they simply dislike.