4 million reasons to investigate SCOTUS

The actions of Justice Thomas would've resulted in resignation in any other era. It is long past time for Congress to open a full, public investigation.

Imagine any employee at any job, and now imagine that employee receiving over $4,000,000 in free vacations from a wealthy “friend.” Even spread over decades, that is a disturbingly high number. And now imagine that the employee’s “friend” in fact has an agenda with regard to that organization and its work — indeed, the “friend” and his other “friends” all have seem to have a common purpose to influence the work of that organization.

You would not be able to trust that employee, right? You would wonder whether that employee was able to do his job impartially, right? Any reasonable person looking at this situation would wonder whether the employee was unfairly favoring his “friends.” At a regular job, this might mean preferential treatment to a vendor run by the “friend.” And at that regular job, that would be enough to get severely reprimanded, if not fired for cause. It would be a shocking revelation in a normal workplace.

Now imagine that the organization is actually the government — and not just any government office, but the Supreme Court of the United States. And the employee, of course, is Justice Clarence Thomas.

This should shock us. It should disgust and appall us. We shouldn’t turn the page or keep scrolling because we think oh well, it’s the government, of course some (or many) of them are going to be corrupt or oh, it’s just Washington, this is par for the course. Or you may think well this is just politics isn’t it, the liberals are going after Thomas because they don’t like him.

Let’s not make this mistake. A willingness to shrug at corruption simply exacerbates it. If termites are eating away at the foundation of your house, pretending they don’t exist or are just a normal condition to be ignored is only going to make matters worse. Far worse. These things don’t just go away on their own.

The festering culture of shamelessness on the political right is a direct and predictable result of the culture of cowardice on the political center and left, an overly cautious unwillingness to confront, a fear of making things worse, a worry about validating the shameless behavior by dignifying it with a response. Yet every time we do not confront the brazen misconduct, we send the clear signal that it is permissible, that everything is permissible if done defiantly enough.

It is long, long past time to confront the shameless misconduct directly, with courage, gusto, and relentlessness. Congress must fully investigate Thomas, his “friends” Harlan Crow and Leonard Leo, and all other associated witnesses. This must be conducted through public hearings, and if the evidence merits it, Congress must at least consider articles of impeachment against Thomas.

The road ahead, beginning in the Senate

To be clear, in advocating for a full investigation, I am not being naively blind to the political realities here. Any investigation right now must begin in the Senate, as House Republicans will not lift a finger to investigate Thomas.

Impeachment proceedings, however, must begin in the House, as required by the Constitution. (Though it is also worth noting that the Constitution specifically cites “Bribery” as a separate ground for impeachment, distinct from the more opaque verbiage of “high Crimes and Misdemeanors.” There should be zero mistake in divining the Founders’ intent with regard to a case like this: it is exactly the situation the Founders had in mind when they included an impeachment provision.)

So how would this work? Begin the investigation now, in the Senate. A proper investigation will take the rest of this year and potentially beyond, after which Democrats are poised to retake the House (though they may lose the Senate). Investigations in 2025 could then move over to the House.

But what if the parties involved refuse to comply with subpoenas from the Senate? Will the shameless non-compliance with subpoenas from the likes of Steve Bannon and Peter Navarro extend to Thomas, Crow, and Leo? Perhaps. They would be digging their political and legal graves further, however; it would be obvious to all that they have something to hide. And though they may drag out this process by trying to evade it, that does not mean we should shy away from the pursuit. “Make it so difficult and annoying that the other side gives up” is the rule followed by Trump and his allies in legal proceedings (and by unscrupulous customer service representatives); the proper response is never to give up.

What then? What happens if a sitting justice is held in contempt of Congress? In my view, it should not matter who the alleged offender is: he should referred to the Department of Justice for criminal prosecution, and if a grand jury agrees, indicted in federal district court like anyone else. And if Thomas then moves to dismiss the indictment, loses, and then appeals it? He can go to the D.C. Circuit like anyone else. And he can apply for a writ of certiorari like anyone else, where Thomas might even be so brazen as not to recuse himself from acting as a judge in his own case. Or perhaps that will be a bridge too far, even for him, even for the cancerous corruption that has eaten away at a portion of one of our most august institutions.

Dear Senator Durbin: You miss 100% of the shots you don’t take

The problem, as I see it, is that those who have the power to begin an investigation of Thomas foresee all the delays and distractions that will likely result, and thus they don’t even want to begin the process. They vainly hope that if enough firmly worded letters are sent to Chief Justice John Roberts, Roberts will suddenly find his conscience and his backbone and do something to rein in his colleagues.

That clearly isn’t working. No institution can be trusted to police itself. Virtually every institution becomes self-justifying over time. Waiting for the Supreme Court to magically reform itself is wishful thinking.

Waiting for Thomas to suddenly become ashamed of his behavior and to do the honorable thing — resigning — is also wishful thinking in all likelihood. The revelations regarding Thomas would have been enough to get most public officials to resign in any other era before now. (Indeed, Justice Abe Fortas felt compelled to resign in 1969 after it was revealed he’d received $20,000 from a wealthy “friend.” That would be about $170,000 in today’s dollars.) If Thomas hasn’t budged yet, further revelations are unlikely to do so.

Meanwhile, even if it may be a long legal battle to get Thomas, Crow, or Leo to testify, there are many, many, many other targets to which subpoenas could be sent. For one thing, most of the financial records involved are held by third parties (e.g. private jet airports and hangars, yacht marinas, pilots, captains, hotels, banks, accountants, financial advisors, et al.) who are probably not going to shamelessly refuse to comply with a subpoena from the Senate of the United States. Same for many eyewitnesses who will be able to testify as to the luxury vacations Thomas took, who he associated with, and perhaps even what they discussed. All of that evidence should be pursued now, even if it takes time to get the primary witnesses to comply.

Indeed, the early part of the investigation should be entirely focused on following the money — on documents, not witnesses. This is true for most investigations of this sort. And here, there is an extremely high likelihood that a probe into Crow, Leo, and their cronies would reveal that the “gift” giving to judges goes far, far beyond Clarence Thomas and far, far beyond just the Supreme Court. (As for just SCOTUS itself, surely one place investigators will want to explore is what or who may or may not have been influencing Justice Samuel Alito to fly flags sympathizing with the January 6 insurrection, but that’s another tale for another time.)

This brings us to the person who could be leading the investigatory charge — but who continues not to do so.

Senator Dick Durbin is the chair of the Senate Judiciary Committee, the nominal author of the firmly worded letters to Chief Justice Roberts, and undoubtedly the approving authority of the firmly worded tweets that the Committee recently released, which surely must have made Thomas and others quake in their designer boots at their secret male-only ranches.

Senator Durbin has now exhausted all of his initial moves. He can now say that he was left with no choice but to commence an investigation. But commence one he must. And if he wants to do so in a way that does not negatively affect the Committee’s primary work — the consideration of federal judicial nominees — then he can create a Special Subcommittee on Corruption in the Judiciary, with Senator Sheldon Whitehouse as chair, as he’s been the most determined and vocal in pressing for a full investigation.

The time to do this is now, so that the work can begin in earnest before the August recess.

And until the investigation is opened, we must all insist upon it. America and our Constitution deserve no less.

p.s. Just in case you’re curious, Senator Durbin’s number is 202 224 2152.