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Op-Ed | Common Dreams | April 25, 2023

Clarence Thomas and Democratic Fecklessness

Congressional OversightEthics in GovernmentSupreme Court
Clarence Thomas and Democratic Fecklessness

This piece was originally published in Common Dreams. Read the piece on the original site.

Earlier this month, ProPublica released a report documenting decades of undisclosed lavish gifts Justice Clarence Thomas and his family received from Republican mega-donor Harlan Crow. These gifts included a yacht trip around Indonesia, flights on Crow’s private jet, free stays at Crow’s private country club, and more. One week later, the news outlet published a follow-up report detailing how Thomas also sold property to Crow without disclosing it. Thomas’s mother has continued to reside at that property rent-free while Crow funds significant renovations.

These failings are egregious, yet entirely unsurprising. Thomas has a long history of violating the same federal laws over which he is trusted to preside. In 2011, watchdog group Common Cause found that Thomas failed to report his wife’s nearly $700,000 in earnings from the arch-conservative Heritage Foundation. For at least six years, Thomas simply listed her income as “none,” in clear violation of his obligation to disclose the source of spousal income. In 2004, the Los Angeles Times ran an eerily familiar story detailing Thomas’ lavish gifts from Crow. In response to the story, Thomas continued accepting Crow’s gifts but simply stopped reporting them.

The punditry’s response to this scandal (if the concept still means anything in American politics) has run the gamut from calling for a Department of Justice investigation to saying none of it matters at all. For our part, we believe that Senator Dick Durbin (D-IL), from his post atop the Senate Judiciary Committee, must perform a thorough investigation into Thomas. We also believe that these grounds are serious enough to warrant impeachment and a trial before the full Senate, though that seems unlikely given Republican control of the House of Representatives (where articles of impeachment must originate and be passed).

Clarence Thomas has made a mockery of the law. He should face consequences for his actions. However, Durbin has so far largely ignored both his power and his responsibility to meaningfully oversee the judiciary. He has chosen instead to encourage Chief Justice John Roberts to investigate Thomas internally.

To be clear: Roberts has failed to engage in any meaningful investigation of ethics failings throughout his tenure as Chief Justice. Roberts did not meaningfully investigate when the Religious Liberty Initiative, an organization that has lobbied the Supreme Court multiple times, flew Samuel Alito to Rome last year. Roberts did nothing following the bombshell New York Times reporting that Alito leaked the 2014 opinion in Burwell v. Hobby Lobby to a religiously-focused group boasting a pay-to-play scheme built to offer access to Justices. (Quite the contrast with Roberts’ outrage over the leaked draft of Dobbs v. Jackson Women’s Health.) Roberts failed to meaningfully investigate when Thomas refused to recuse himself from cases related to January 6th, despite his own wife’s willful participation in the attacks on American democracy.

Roberts has failed time and time again to hold his Court to account. No reasonable person—let alone someone with real authority to defend the sanctity of the law—should trust him to investigate Thomas now. Yet Durbin apparently does.

Unfortunately, Durbin’s reticence to actually exercise his very real power is merely an extension of a long legacy of Democratic fecklessness. For decades, Republicans have chipped away at the integrity of our institutions and have been met by little meaningful opposition from their colleagues on the other side of the aisle.

Democrats are scared: scared of losing, scared of rocking the boat, scared of recognizing the gravity of the situation, scared of doing something about it. For the party that claims to be the “mature adults in the room” who sanctify American institutions and laws, Democrats have, in practice, settled for hand-wringing and symbolic admonishments as they clutch the tatters of long-lost norms and congressional cordiality.

Democrats have long waited for a day—one that will not come—where Republicans simply and suddenly discover some semblance of a moral compass. Joe Biden declared on the campaign trail in 2019, “[We] will see an epiphany occur among many of my Republican friends,” after Donald Trump leaves office. We’re still waiting.

While waiting, Democrats’ political lethargy has allowed the right to legally steal a Supreme Court seat (or two, if you count Amy Coney Barret’s appointment) and the 2000 election.

Ever since Walter Mondale’s electoral evisceration at the hands of Ronald Reagan, the Democratic Party has borne a dangerous timidity. The New Democrats and Third Way centrists were afraid of being too far left of a Republican Party lurching further and further rightwards, so they instead morphed into diet Republicans, typified by the Clinton administration: deregulation, expansion of the War on Drugs and other “tough-on-crime” policies, expediting neoliberal trade agreements and outsourcing American industry. They remained marginally more socially liberal – itself an extraordinarily low bar – but adopted much of the worst parts of the Reagan style of governance.

Democrats bought into the idea that the collapse of the Soviet Union and the defeat of Communism ushered in an end of history, where liberal, free-market democracies would continue to ride their inertia into perpetuity. They internalized the idea that they were part of ushering in a post-ideological world where different parties might quibble on minor policy differences, but had the same overriding ideals.

This has clearly proven not to be the case. But the Democratic Party’s leadership remains enthralled by the idea of being “the responsible ones” who go high when others go low. They remain incapable of comprehending that Republicans, fundamentally, do not want the same kind of world that anyone in the Democratic coalition wants.

Democrats are often accused of believing in nothing but process; Republicans have strong, horrifying beliefs, and do not believe at all in process. Republicans do not believe in democratic legitimacy, equal rights, or accountability under the law for all, as exemplified by Thomas. To paraphrase one video essayist, Republicans are not simply liberals who haven’t figured out how to be liberals properly yet; they fundamentally want something else, and they will destroy whatever prevents them from getting it.

That’s why, despite Republicans being more vocal about deficits, Democratic administrations since 1990 have actually done far more to limit them. That’s why, despite Al Gore actually winning more votes (including in Florida whose electors he should have gotten), Democrats accepted the results of that fateful Supreme Court ruling, even as Republicans staged fake riots in Florida to create the impression of unrest, providing an excuse to circumvent the actual counting of ballots.

Contrast that to how Republicans responded to losing an election fair and square in 2020. They attempted a coup. Despite Joe Biden receiving the most votes ever in a presidential election, handily winning the electoral college, and prevailing in numerous recounts, many Republicans encouraged a violent uprising that saw armed insurgents break into the seat of American governance. Twenty years earlier, Democrats meekly accepted the outcome of an actual stolen election.

It is this obsession with being the proper, responsible party that makes Democrats so reluctant to dig their heels in. They need to feel like they are above petty politics: the protectors of American decorum. (And it’s a pretty telling attitude for a politician to consider their own profession petty.) Any time they think they might be called political (which, again, is supposed to be their job), they balk. Democrats have decided they are okay letting Republicans play by different rules as long as they get to keep their self-righteousness.

Enough is enough. Durbin and the entire party need to finally fight the erosion of judicial integrity. The Supreme Court, and much of the federal judiciary, has turned away from even a veneer of respect for the law. A majority of justices on the Supreme Court were appointed by Presidents who lost the popular vote. Indeed, Republicans have held a majority on the Supreme Court’s bench since 1970, more than half a century ago. The courts — the Supreme Court in particular — have made themselves illegitimate. It is time to say so out loud and publicly challenge them for it.

Obviously, Democrats shouldn’t fabricate charges against conservative jurists. But when judges make a mockery of the law, Democrats must hold them accountable. Doing so will not “politicize the court” as Democrats seem to fear. If one fears politicizing the court, then one fears what Republicans are currently doing: exploiting the courts to force their partisan preferences upon a majority which vehemently objects to them, with barely any effort to cloak any of it in legitimate legal interpretation. Taking action will instead protect the public from the partisan actors weaponizing public institutions for devastating and anti-democratic partisan ends.

The line has to be drawn somewhere. Democrats have let Republicans steal and cheat their way into controlling huge portions of governmental and judicial power through antidemocratic measures. Eventually they have to fight back against the abuse of those powers, or they’ll find that we’ve all become numb to this type of betrayal of the public trust.

Every time conservative judges are able to get away with openly defying their obligations to uphold and obey the law, the legitimacy of the judiciary takes a hit. Now, after decades of fraying trust in our institutions, we’ve learned that a Supreme Court Justice has frequently and continually ignored basic ethics laws, the camel’s back is being asked to bear ever more straw. No one can say which one will break its back, but the load is getting very heavy. Durbin has the power to challenge the piling on of court illegitimacy in a big way here. Unfortunately, he seems likely to shy away from the challenge.

Congressional OversightEthics in GovernmentSupreme Court

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