Laurence ‘Diatribe’ Against Thomas

Legal scholar and leftist advocate Laurence Tribe has done it again. In his war against an often conservative Supreme Court, the Harvard Law Schookl relic has once again chosen to smear Clarence Thomas—this time by distorting the plain meaning of a judicial ethics code. The smear requires one to imagine Thomas’ wife, Ginni, is covered by that judicial ethics code, even though she is not a judge. 

This is all in a pattern of Tribe raising scurrilous and irrelevant attacks on Justice Thomas, whom he accused of being a latter-day tool of Chief Justice Roger Taney of Dred Scott notoriety. Tribe proposed that Thomas somehow actually based his notions of Americans’ natural right of self-defense on Taney’s infamous denial of any rights to black Americans. Of course, this deranged deconstruction of Thomas’s argument explodes in Tribe’s face. But I confess that few attacks on Thomas astound me anymore.

What shocked me during Judge Thomas’ 1991 confirmation hearings was the extent to which groups smeared him, sometimes even altering quotations from his work when it fit their purpose. At the time, I was naïve in the ways of Washington. Of course, I understood the historicism of leftist scholars that could permit them to lay the creation of truth to their wills. But seeing this carried out against a man I had served for almost four years disgusted me. 

At the hearings,  however, the target became the hunter and reversed the game, turning the object into the subject, and redefined their relationship. His devastating denunciation of his tormentors (“high-tech lynching”), which he recounts in his autobiography and the subsequent award-winning film, “Created Equal,” showed us a man who was not willing to simply take whatever the Left dished out. 

But as Thomas’ attorney at the time, Mark Paoletta, now notes, the Left is persistent, and people who are polled today have adopted his accusers’ lies,  accepting the Left’s version of the events of that time. To remind this new audience of what actually went on, Paoletta and documentary producer Michael Pack joined forces to present Justice Thomas anew. Even Washington Post columnists such as Kathleen Parker, among others, expressed admiration for their film. In watching the biography and seeing those exchanges from the 1991 hearings again, two things became clear: that Senate Judiciary Committee Chairman Joe Biden should star in fewer movies and that Professor Tribe should see more of them.

Or maybe not. Tribe appears once again to be starring in a Roadrunner cartoon. His latest diatribe struggles to dramatize Justice Thomas’s alleged judicial misconduct regarding the solemn constitutional duties of another committee, the January 6 fiasco. Here Tribe takes on the Roadrunner/Biden role by blatantly distorting a federal judicial code and applying it to his wife, Ginni Thomas, who is not a judge and is not involved in any relevant way to the January 6 committee business. Another Thomas, another committee—the same old nonsense. 

This gets old very fast, as one sees from Tribe’s charge

Title 28, Section 455 of the United States Code is the federal statute that applies to Thomas. It provides: ‘Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned’ or his spouse ‘is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.’

As serious as this sounds, it is in fact laughable, and on many levels. First, the code he cites does not even apply to Supreme Court justices. It is clear from the language of the code that only lower federal court judges are covered. And tellingly, the code provides no proposed punishment for its violation. 

Second, the code concerns participation in cases. Hence, the lack of quotation marks around “or his spouse” is telling. Tribe himself inserted “or his spouse” knowing full well that the code does not apply equally to a judge’s spouse. 

Reading the code in Tribe’s way would make it a subjective, partisan tool to be used against judges. Could judges rule in a case involving the political party of the president who nominated them to the court? The whole idea of judges is to advance impartial justice. If we interpreted the Constitution as Tribe would have it, however, a judge ruling in such a case would be an unconstitutional use of the code and, moreover, would require condemnation of that sort of impartiality. 

Tribe’s addition of “spouse” to the parties covered by the code in a “proceeding” is clearly unwarranted regarding Ginni Thomas. The code covers children and spouses among those whose “personal financial interests” must be considered when looking at beneficiaries. There is no financial interest involved here. No one has even hinted at such a motive.

Of course, the drafters of the code were well aware that the pool from which Supreme Court justices are selected would often include prominent political figures, such as former President William Howard Taft. It should not prohibit judges from socializing with members of Congress or other public or private figures. For example, the late Justice Antonin Scalia went duck hunting with former Vice President Dick Cheney. (That may have been imprudent given Cheney’s infamous carelessness regarding firearms, but it was not unethical.)

But there is one good purpose in examining this code. One is obliged to ask whether the code originated in Progressive-era reforms, which were intended to erode the separation of powers. That would be something to consider, but we don’t require that distraction to examine this particular anti-Thomas allegation.

Tribe’s diatribe, we must conclude, is nothing more than rank “grudgery” disguising itself as erudite support for the rule of law. While the oversight functions of Congress are essential to the separation of powers, runaway investigations are as great an evil as runaway bureaucracies and judges—not to exclude scholars of the law, who comprise yet another part of the administrative state which sprawls upon us. Justice Thomas stands for defiance of such accretions on our fundamental law, as even nonconservative observers acknowledge.

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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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