In re. Mrs. Justice Clarence's new gig: Righties probably think of this as less a "conflict" than a mere "affinity" of interest

Mr. and Mrs. Justice Clarence

"Sue Hamblen, Liberty Central's national coordinator, said Virginia Thomas met with ethics officials for the federal courts and was told her work 'was in no way a conflict of interest.'

"'She did not give up her First Amendment rights when her husband became a Supreme Court judge,' Hamblen said."

-- from Robert Barnes and Dan Eggen's report

in yesterday's Washington Post

by Ken

I'm sure you've heard, thanks to Sunday's L.A. Times report, which seems to have triggered yesterday's WaPo one, about this new "nonprofit lobbying group," Liberty Central Inc., that Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, founded in January and promoted heavily at the CPAC loonfest.

As is being widely pointed out, this is hardly Mrs. Justice Clarence's first foray into the political world. Yhe WaPo team pointed out yesterday, "A longtime political activist, she has worked for former House Republican leader Richard A. Armey (Tex.) [now the Wizard of FreedomWorks], the conservative Heritage Foundation and the U.S. Chamber of Commerce." And Liberty Central's helpful national coordinator, Sue Hamblen, was ready with other instance of politically involved judicial spouses:

Hamblen said other judges have had politically active spouses. For instance, Judge Marjorie O. Rendell of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia is married to Pennsylvania's Democratic governor, Ed Rendell. Following the judicial Committee on Codes of Conduct, Marjorie Rendell does not accompany her husband to political events. But she presides over other events as first lady.

She seeks guidance from the committee over potential conflicts, and has a policy of recusing herself from a case in which a party has made a hefty contribution to her husband's campaign, unless both sides agree to waive the disqualification.

In California, Judge Stephen R. Reinhardt of the U.S. Court of Appeals for the 9th Circuit recuses himself in cases brought by the Southern California branch of the American Civil Liberties Union, which is headed by his wife, Ramona Ripston.

The obvious question in everyone's mind -- well, in the minds of everyone who actually worries about stuff like ethics and conflicts of interest -- is whether Mrs. Justice Clarence's activities pose a conflict of interest for Mr. Justice Clarence. Our friend Sue Hamblen may or may not have been directly addressing that point when she offered this information about the new organization:

Hamblen said that the group is nonpartisan and does not intend to make endorsements in political campaigns but that it will issue "scorecards" ranking candidates on conservative issues.

"We are very seriously not Republican or Democrat; we are conservative," Hamblen said. "Our intent is to remain nonpolitical except in terms of furthering the core principles of the founding fathers."

Liberty Central, which is organized as a nonprofit, is free to raise unlimited amounts of money and is generally not required to disclose its donors. Hamblen said the group has "received a lot of donations over the last couple days," mostly from small donors.

This all seems clear to Sue, but it's pretty murky to me. Like how an organization's mission can be entirely, unequivocally, and unapologetically to promote conservatism and yet be "nonpolitical." She seems to be trying to make distinctions between "issues" and "candidate" advocacy which indeed come into play in many areas of fund-raising and tax-emption law but which don't seem to have much to do with the situation of a Supreme Court justice and spouse.

Now it may be that, for all of LIberty Central's commitment to the Constitution (Mrs. Justice Clarence has been famously quoted as saying, "We’ve got to get the Constitution back to a place where it means something . . . or we’re headed for tyranny"), our Sue, like most modern-day conservatives, doesn't have much idea what's actually discussed in that document.

Certainly Sue's apparent belief that Mrs. Justice Clarence's First Amendment rights are at issue here bespeaks an eccentric understanding of that amendment, perhaps because right-wingers are so unaccustomed to favoring it. She is apparently unaware that in every walk of American life there are jobs that in fact do place certain restrictions on spousal employment, something that's become increasingly tricky as two-career couples of the high-power sort have become so common.

In my experience, modern-day conservatives tend to be familiar only with the handful of 15-word excerpts ripped out of the Constitution to serve as talking points for the legal philosophers of the Federalist Society and the noisemakers of the Right-Wing Noise Machine. And so, giving Sue the benefit of the doubt, she may be unaware of what the Supreme Court actually does.

In which case she may be surprised to learn that, practically if not statutorily, the issues vs. candidates situation is pretty much reversed there. The Supreme Court isn't involved in candidate advocacy at all, but it's all about "issues." To assure us that Liberty Central is going to be involved only in issues and not candidates (which seems to be what Sue means by "political"), far from providing reassurance on the conflict matter, only seems to heighten it.

Supreme Court justices, of course, get to be the sole judges of their ethics and conflicts of interests, and may choose to recuse themselves or not entirely on their own say. They never have to explain to anyone why they do -- or, more importantly -- don't choose to do so. As to what standards might apply, this morning on NPR I heard Prof. Stephen Gillers, who's my idea of an authority on legal ethics, explaining that the relevant federal guidelines don't address ideological conflicts of interest at all, but only financial ones. He pointed out, however, that Mrs. Justice Clarence's outfit will in fact be accepting contributions from individuals and organizations that may be involved in matters that either before the Supreme Court or headed there.

There's also a case to be made, although the guidelines don't seem to concern themselves with it, that sitting on the Supreme Court is different from all other judging jobs, in fact all other government jobs. There is, realistically speaking, just about no place else for a High Court justice to go in the employment world, except into retirement. So if, say, you wanted to bribe one, it's pretty hard to do.

Obviously you can't just shovel money into a justice's pocket. (Was that the sound of Holy Joe Lieberman losing all interest in the job?) Which leaves the other favored technique for paying off a government official: bribery by job offer. But unless you're that schmuck Arthur Goldberg, you don't give up a Supreme Court gig before the end of your working life. So, for example, where a member of Congress may be bought off with the promise of a future six- or seven-figure salary, how would you go about buying a Supreme Court justice?

Well, if you wanted to view this conspiratorially (and I say, just for a second, let's), one thing Supreme Court justices usually aren't is rich. And there aren't a lot of legal ways they can substantially improve their financial positions before retirement. This could represent a limitation on their living style, present and future.

One wonders, for example, how Justice John John, a onetime seriously big legal earner, who had sky's-the-limit future earnings potential, is going to feel as his years as chief justice roll by and he muses on how much he might have been making at that very moment. From our conspiratorial vantage point, if you wanted to "perk up" a sitting justice's lifestyle, why, how about shoveling money to the spouse?


BUT I SAY ALL OF THIS IS IRRELEVANT . . .

Come on, group, when we talk about potential conflicts of interest for Justice Clarence, or Justice Nino or Justice John John or Justice Sammy, what can we possibly mean?

Of course by normal ethical standards it was outrageous to the point of preposterousness for Justice Nino to be palling around with Vice President Cheney when a crucial case involving him was already in litigation -- with potentially who-knew-how-many more to follow. Nevertheless, does anyone imagine that our Nino would have voted any differently if he hadn't had his hunting party with Big Dick?

In the same way that our Nino insists he can't think of a single case he would have decided differently if he wasn't Catholic, possibly it really doesn't occur to him to question the strictly constitutional basis of his nearly unflinching support for authoritarian government, powerful corporations, and other institutions of social orthodoxy. What we see as "conflicts" of interest, he presumably sees as mere "affinities" of interest, of which he's likely quite proud.

This is, after all, a man whose entire professional career has been devoted to furtherance of the interests of, if not downright worship of, the rich and powerful. Do you suppose in his entire time on the bench there have been more than a handful of cases he didn't know how he would decide by the time he'd read the first graf of the legal paperwork? Ditto for Justice Clarence. I'd be surprised if newbies John John and Sammy have encountered more than one or two, and that's being generous.

So in the end we can kick and scream all we like, but the Constitution is so trusting of Supreme Court justices -- or perhaps so fearful, in the context of its careful system of checks and balances, of inappropriate encroachment on their prerogatives -- that it really doesn't give us any meaningful option except impeachment.

#