ProPublica continues its non-stop smear campaign against Justice Clarence Thomas, this time because he delivered remarks to some attendees at a non-profit seminar event in 2018. It’s their trademark tactic: ProPublica strings together perfectly ethical conduct, adds lots of innuendo, and then falsely claims Justice Clarence Thomas acted unethically.
It’s a lie. Justice Thomas acted ethically and appropriately, and consistently with how other justices have conducted themselves.
Contrary to ProPublica’s claims, this Koch Network event was not a fundraiser and Justice Thomas was not involved in any way with raising funds for this group. Yes, donors attended, but donors often attend events at which justices speak, such as those through the American Constitution Society, the Federalist Society, or even at university commencements.
ProPublica cites unnamed organization staffers (they’re always unnamed and therefore unreliable, as I proved in another story) claiming they wanted to leverage Thomas’s appearance to raise more money from donors: “The justice was brought in to speak, staffers said, in the hopes that such access would encourage donors to continue giving.” The report continues, “That puts Thomas in the extraordinary position of having served as a fundraising draw for a network that has brought cases before the Supreme Court.”
ProPublica smears Thomas by suggesting he had some role in any fundraising effort. He did not. Moreover, it’s not unusual for any organization or school to highlight leaders who have attended events to burnish the organization or school’s reputation and, yes, raise funds. Contrary to ProPublica’s warped narrative, this does not present any reason for a justice to recuse from a case regarding that entity.
A recent AP story revealed that when Justice Sonia Sotomayor agreed to attend a private luncheon at Clemson University, officials “made sure to invite $1 million-plus donors.” Donors got access to and had photos taken with Justice Sotomayor. Clemson University officials wanted to use Sotomayor’s visit to “drive awareness … and ultimately generate resources,” i.e., fundraising.
The same story reveals that when the University of Colorado hosted Justice Elena Kagan, the school sought to reward donors by having a “larger ‘donor to staff ratio’” for a dinner with the justice.
There is nothing wrong with a school or organization inviting donors to attend speeches or luncheons with visiting dignitaries. It happens every day, and it’s foolish to demand otherwise.
Similarly, there is nothing wrong with a school or organization highlighting that a president, justice, or other leader has given remarks (including commencements) at the school to raise the profile of the school and, yes, to raise funds. But the president or justice who speaks has nothing at all to do with these fundraising efforts.
ProPublica does not mention any of this because it seeks to gaslight the American people into thinking there is something wrong with Justice Thomas’s conduct in speaking at this event when in fact there is nothing irregular or wrong. He gives speeches or talks at a variety of events, as other justices do.
The American University highlights on its website Justice Ketanji Brown Jackson’s commencement speech she gave earlier this year at the school. Does American do this to help drive awareness of a Supreme Court justice speaking at the school, with the goal that it will also help increase donations or attendance at the school, which are both financial motivations? Of course it does. Does this make Justice Jackson a part of the fundraising effort? Of course not.
Similarly, if American University appears before the Supreme Court in the future, say on an affirmative-action case, will Justice Jackson have to recuse because she gave a commencement address there? Again, of course not.
The same is true about Justice Sotomayor and Clemson University as well as Justice Kagan and the University of Colorado — and these are just two of the many schools or groups at which these justices have appeared. All of this goes to illustrate how nonsensical these attacks and demands for recusal are on Justice Thomas.
Justice Thomas has spoken to attendees at only one Koch Network event in more than 30 years on the Supreme Court. (He briefly dropped by another in 2008.) It’s absurd for anyone to suggest that Thomas should recuse from any case in which this group is involved.
Yet that is exactly what ProPublica and the left are urging with respect to the upcoming Loper Bright case, which concerns how much deference is due to a federal agency’s discretion in imposing regulations. Koch-affiliated lawyers are representing the party challenging the agency’s rule.
For another comparison, let’s look at Justice Ruth Bader Ginsburg’s history of speaking at events in which the host appeared before the Supreme Court. In 2004, Ginsburg gave remarks at an event cosponsored by the National Organization for Women (NOW) Legal Defense and Education Fund and never recused from the many Supreme Court cases in which NOW filed briefs. ProPublica mentions this fact but does not mention in its article that Justice Ginsburg served on this leftwing advocacy organization’s board in the 1970s and on its advisory committee for judicial education.
Nor does ProPublica mention that Ginsburg was so close to this group that the event at which she delivered her remarks in 2004 was named after her — the “4th Annual Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law.”
ProPublica also failed to mention that Ginsburg donated a signed copy of the United States v. Virginia decision (which struck down single-sex education at VMI as unconstitutional) for an auction to raise money for the NOW PAC. She never recused from any case where the NOW Legal Defense Fund (LDF) had filed a brief. And of course, she often ruled exactly as NOW LDF advocated.
Ginsburg’s relationship was leaps and bounds closer to NOW than Thomas’s essentially nonexistent connection to the Koch Network, but the left never demanded Ginsburg recuse from NOW cases. This shows the left’s hypocrisy in demanding that Justice Thomas recuse from the Loper case.
Justice Ginsburg also helped establish the ACLU’s Women’s Rights Project in 1972, serving as its general counsel and, later on their board of directors for years. As a judge, Ginsburg sent a complimentary note to an ACLU lawyer about her advocacy on an issue relating to “sex discrimination in insurance.” I am unaware of Ginsburg ever recusing from any Supreme Court cases where the ACLU filed a brief.
Moreover, imagine if Justice Thomas had sent a note to a Koch attorney urging the lawyer to continue advocating on an issue that could come before the court. Heads would have exploded. But from the left, there are only crickets about Justice Ginsburg’s non-recusal.
ProPublica fails to mention that Ginsburg attended an event at the partisan Woman’s National Democratic Club in 2010 and accepted an award — and did not disclose it. I am unaware of her ever recusing from a case where the Democrat Party filed a brief. Nina Totenberg, Ginsburg’s close friend and NPR’s Supreme Court reporter, emceed the event but did not disclose this inappropriate and partisan event until after Ginsburg passed.
The left also complains that Justice Thomas did not disclose that he gave these remarks. But justices are not required to disclose every group with which they meet. Recently, Justice Thomas met at the court with 60 students from the Bronx. He is not required to disclose this meeting, but I look forward to ProPublica’s lame exposé when Justice Thomas does not list this meeting on his form next year.
The left and the so-called “ethics watchdogs” never had any serious problem with Justice Ginsburg’s conduct with these groups nor her non-recusal when they were involved in cases. Why are they inventing a new recusal standard for Justice Thomas that didn’t apply to other justices, and particularly to Ginsburg? Because the left wants to bully Justice Thomas into recusing and shrink the number of justices sitting on key cases that the left is worried about losing — cases like Loper.
But it won’t work. Justice Thomas has never bowed to these sorts of baseless and vicious attacks, and he won’t start now.
Mark Paoletta served as a lawyer in the George H.W. Bush White House Counsel’s office and worked on the confirmation of Justice Thomas. He is a senior fellow at Center for Renewing America, and partner at Schaerr Jaffe.
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