The New York Times had an absurd editorial yesterday questioning Justice Clarence Thomas’s impartiality in some vague class of Supreme Court cases, based on his wife Virginia’s role as president and CEO of the non-profit organization Liberty Central. Ginni Thomas founded and runs Liberty Central, a 501(c)(4) non-profit “designed to promote education, civil discourse, and activism focused on protecting core founding principles of the United States.”
The Times editorial is part of an increasing drumbeat to vilify Justice Thomas for the work done by his wife — you know, the insidious work of calling for a “return to a government that adheres to our core Founding Principles — limited government, personal responsibility, individual liberty, free enterprise, and national security.”
What is the Times’ beef? The now all-too-familiar charge is that Liberty Central is funded by undisclosed donors, and Ginni Thomas gets paid by Liberty Central. Therefore, Justice Thomas “is a beneficiary of that pay and has a responsibility under federal law to ‘inform himself’ about who the donors are because they have an impact on Mrs. Thomas’s personal financial interests.” The Times admits that Liberty Central has no legal obligation to disclose anything, but in the same breath asserts that it does “have a duty to do so.” Huh? I assume they mean a moral obligation, though it is not clear to me when the Times editorial board became the great arbiter of morality in society.
A few points in response. First, Liberty Central does not involve itself in litigation, so it is unlikely that Justice Thomas would ever need to recuse himself from case before the Court based on Liberty Central’s involvement. The notion that Clarence Thomas has an obligation to recuse himself from any case involving a donor to the non-profit organization run by his wife stretches the judicial code of ethics beyond the breaking point. Would the same obligation require recusal in any case involving the major customers of a business run by a justice’s family member? Justices generally recuse when a family member’s law firm is involved, but would the same obligation arise whenever any client of that law firm was a party to a case, even where the law firm itself wasn’t representing the client in the particular matter? And where do you draw the line, oh enlightened editorial writers?
Second, even assuming the judicial code of ethics could be read this broadly, who is to say that Justice Thomas isn’t informing himself of the donors and taking appropriate action when necessary? Why would the additional measure of public disclosure be required? And isn’t the best way to avoid any conflict for Thomas not to find out who the donors are at all? He wouldn’t face a conflict if he simply Chinese-walled himself off from his wife’s business activities. The Times responds that the “appearance of impropriety” would still result, but where is the appearance problem in an undisclosed donor unknown to the Justice being a party to litigation?
Finally, the editorial ends with a real laugh, suggesting that Justice Thomas’s dissent in Citizens United, in which he alone among his colleagues reasoned that public-disclosure requirements in campaign-finance laws ran afoul of the First Amendment, raises “suspicions and doubts” about whether his views were influenced by his wife’s donors. But in so doing, the Times only reinforces Justice Thomas’s point — that public disclosure can be device to ferret out disagreeable viewpoints through public intimidation. As Thomas observed, “The success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to preempt citizens’ exercise of their First Amendment rights.”
The Times’ real goal here is to publicly root out the donors and tar and feather them, thus getting them out of the business of funding viewpoints with which the Times’ editors disagree. The Wall Street Journal today editorializes on the recent efforts to similarly punish Target Corporation for supporting a conservative gubernatorial candidate in Minnesota. For the New York Times, Clarence and Ginni Thomas are just a convenient stalking horse for shouting down the opposition.