Can an obscure council of judges solve the Supreme Court's Clarence Thomas problem?
A group of senators complained about Clarence Thomas' dealings with Harlan Crow.
The complaint was sent to the US judges' Committee on Financial Disclosure.
One of its members recused himself after Insider found he wrote a provocative article about Thomas.
Faced with a spate of embarrassing revelations about Justice Clarence Thomas, and demands for answers from Democratic senators, Chief Justice John Roberts delegated questions about Thomas' disclosures to a little-known group of judges that now finds itself in the spotlight.
For now, questions about Thomas's previously undisclosed financial dealings with Harlan Crow, a billionaire Texas real-estate developer, will fall to an obscure committee of sixteen federal judges — the Committee on Financial Disclosure.
One of the group's judges recused himself after Insider raised questions about a law review article he wrote, in 2003.
"At first glance," wrote Judge J. Nicholas Ranjan, a committee member who sits in the Western District of Pennsylvania, "Clarence Thomas looks like the whipping boy for the left — the lone opportunity for the left to have license to be racist without ever engaging in Thomas's actual ideas."
The Committee on Financial Disclosure is one of 20 deliberative bodies within the Judicial Conference, which meets twice a year under Roberts' direction to make recommendations about the federal judiciary. Now thrust by Roberts into a highly visible role of referee in the tussle between the Supreme Court and Congress, the committee has had to re-examine its own policies regarding disclosure and transparency.
"The names of the members of the committee are not public," Jaculine Koszczuk, a spokesperson for the administrative office of the federal courts, wrote to Insider on May 4. The following day, Sen. Sheldon Whitehouse sent a letter to the Judicial Conference with a list of questions about the committee.
But on Thursday, the apparent policy of keeping the committee's members secret changed. Koszczuk sent Insider a letterhead showing the names of the panel.
Koszczuk said the same letterhead was routinely sent to any member of the public who asked for a judge's financial disclosure report. "I apologize for any confusion," she wrote.
The membership list shows that the committee is split roughly evenly between Democratic- and Republican-appointed jurists. Eight of the committee's judges were appointed by Democratic presidents, six by Republican presidents. Two members are judges appointed by their peers.
It falls to these jurists to assess the disclosure lapses by Thomas that have become public in a string of highly embarrassing stories for the Court in recent months. Thomas has traveled the world on Crow's superyacht, flown on Crow's private jet, and vacationed at Crow's resort-like properties, ProPublica reported last month. The billionaire also footed the bill for Thomas' grandnephew's private schooling and bought and renovated the home where Thomas' mother lived.
A review of the committee's writings, confirmation testimony, and financial disclosures by Insider found that Ranjan wrote a 2003 law review article that contained the scathing remarks about Justice Thomas and his critics. Ranjan was a student in law school at the time.
"Criticisms voiced by Thomas' opponents," Ranjan wrote, "have been largely preposterous."
But Ranjan attributed some portion of the blame for the intensely political discourse around Thomas to Thomas himself, citing "instances of Thomas wielding his race to serve certain political ends" and claiming that "views and uses race like the traditional political figure."
When Ranjan wrote his article, a review of a Thomas biography, the controversies surrounding Thomas had nothing to do with his financial disclosures. Most critics were focused on Anita Hill's allegations that Thomas had sexually harassed her, and on Thomas' efforts to roll back civil rights-era gains like affirmative action.
Federal law requires judges to recuse themselves from any proceeding in which their "impartiality might reasonably be questioned."
"At a minimum, this makes clear why we need to know which judges are members of this public decision-making body, and better understand its secretive workings," said Whitehouse, in a statement to Insider, prior to Koszczuk releasing the committee members' names.
After Insider brought Ranjan's article about Thomas to the attention of Ranjan and the rest of the committee, Ranjan himself decided to recuse himself from the committee's deliberations on whether Thomas violated financial disclosure requirements by failing to report his gifts from Crow. In a statement, he said he had "no doubt that he can be impartial in any matter before the committee" but would recuse "out of an abundance of caution."
By recusing himself, Ranjan, a Trump appointee, seems to be exercising extreme care. Four judicial ethics experts told Insider they did not believe the law-review article required Ranjan to recuse himself, though one suggested Ranjan may want to do so anyways to dispel media attention.
"The Thomas news has already wounded the Supreme Court, and the federal courts more broadly," said Stephen Gillers, an expert in legal ethics and a professor at New York University. If Ranjan did not recuse himself and the review were to come to light, he said, it could "only aggravate the harm."
Robes of secrecy
The murkiness of the Committee on Financial Disclosure's inner workings is not unique. While the Judicial Conference discloses the members of its main policymaking body, who are elected, the members of its standing committees aren't listed on the judiciary's website.
In some respects, US courts are more transparent than the other government branches. Judges and some senior employees are required to file financial disclosures, courtrooms are generally open, and any member of the public can access case documents online or for free at a federal courthouse. News outlets often successfully manage to unseal confidential records.
In other ways, however, they're highly opaque. Judges' financial disclosures are only updated annually, and until recently, it wasn't easy to get ahold of them. Cameras aren't allowed in federal courts. Courts aren't covered by the Freedom of Information Act, so one of the only ways internal records like memos, correspondence, and draft opinions become public is when judges retire and donate them — sometimes revealing, decades later, the arguments and tension that can go into judicial decisions.
Does the watchdog have teeth?
Moving forward, the committee has a few options for dealing with Thomas's financial disclosure issues. It could refer Thomas to the Department of Justice for civil charges if it finds he "willfully" misrepresented or falsified his financial disclosure reports. Proving willfulness is such a high standard that it's unlikely the issue will get that far, said Russell Wheeler, a fellow at the Brookings Institution.
What's more likely, Wheeler said, is that the committee will ask Thomas to amend his disclosure statements. If he refuses, that's when the committee "might get a little prickly," Wheeler said.
Whether the committee can do anything under that scenario is an open question. Chief Justice Roberts has repeatedly asserted that the Constitution protects the Supreme Court from most outside oversight, and that the court's adoption of and compliance with judicial ethics guidelines is voluntary — unlike all other federal judges.
Thomas has once before been investigated by the Committee on Financial Disclosure, Bloomberg reported last week. In 2011, the committee examined Thomas' failure to report income his wife, Ginni, earned between 2003 and 2009, including from a consulting firm she founded that was largely funded by Harlan Crow. Thomas explained at the time that he had misunderstood the filing instructions, and filed amended reports.
The Committee on Financial Disclosure has already taken some action to ensure that going forward, Thomas must report lavish gifts like the ones he received from Crow. In March, the group updated financial disclosure guidance to clarify that an exemption to the reporting requirements for personal hospitality extends only to food, lodging, and entertainment — not things like private jet flights, cruise trips, or resort stays.
Thomas has said he will comply with those new rules
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