Washington, DC – Today, Chairman Sheldon Whitehouse (D-RI) led the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights in a hearing entitled, “Review of Federal Judicial Ethics Processes at the Judicial Conference of the United States.” The hearing examined the Judicial Conference’s handling of previous ethics complaints against Supreme Court Justice Clarence Thomas dating back to 2011.
“One month ago, Congressman Hank Johnson and I wrote to the Judicial Conference of the United States, asking it to look at recent reports that Justice Clarence Thomas violated the Ethics in Government Act by failing to disclose gifts of travel and luxury vacations provided by a right-wing billionaire. The Judicial Conference’s responsibilities under that law are quite clear. If there is ‘reasonable cause to believe’ that Justice Thomas willfully failed to file, then it must refer him to the Justice Department for investigation,” said Whitehouse.
“This is not a first. Believe it or not, we’ve been in nearly this exact situation before. Back in 2011, the nonprofit group Common Cause uncovered that Justice Thomas hadn’t reported years of his wife’s income paid by a right-wing dark-money group. The New York Times reported that Justice Thomas also had not disclosed gifts of free private jet and yacht travel from the same right-wing billionaire — the same kinds of undisclosed gifts from the same right-wing billionaire that were revealed last month,” added Whitehouse.
In 2011, Justice Thomas’s undisclosed private jet and yacht trips from highly political Republican billionaire Harlan Crow were sent to the Judicial Conference’s Financial Disclosure Committee for a determination as to whether Thomas may have broken the law. It also came to light during that era that Justice Thomas had for years failed to disclose income his wife received from the Heritage Foundation, a right-wing think tank with frequent business before the Court.
Recent reporting from the Washington Post revealed that in 2012, Leonard Leo, the orchestrator of right-wing influence campaigns around the Supreme Court, directed payments of at least $25,000 to a consulting firm run by Ginni Thomas and asked that her name be left off the paperwork.
In April, bombshell reporting by ProPublica exposed that Justice Thomas and his wife accepted extravagant vacations worth as much as $500,000 on the dime of Harlan Crow and did not disclose the travel. That report was later followed by an additional ProPublica story detailing Crow’s purchase of a string of properties from Justice Thomas and his family members, which was not properly disclosed. Further reporting by ProPublica indicates that Crow paid for multiple years of tuition for Justice Thomas’s grandnephew to attend private boarding schools.
Congress created the Judicial Conference through statute and with passage of the Ethics in Government Act, Congress imposed clear financial disclosure and recusal rules that apply to the Supreme Court.
“Congress has a role in making sure that our courts are administering federal ethics laws fairly and as we intended. If they aren’t, we need a robust record of what has gone wrong and what new laws are needed to fix it,” concluded Whitehouse.
The subcommittee heard witness testimony on Wednesday from the Honorable Mark L. Wolf, Senior Judge on the U.S. District Court for the District of Massachusetts. Judge Wolf, a graduate of Yale University and Harvard Law School, was appointed by President Ronald Reagan and served in the Department of Justice under two Republican administrations. Judge Wolf served as a member of the Judicial Conference when prior ethics complaints about Justice Thomas were brought to the Conference’s attention more than a decade ago.
“It is unfortunately relevant to consider these events now. The [Ethics in Government] Act only serves its vital purpose if the Conference understands and properly performs its role. I believe that in 2011 and 2012, it did not,” said Judge Wolf.
Judge Wolf continued, “First, despite Congress and the public raising serious allegations, and the Conference referring them to the Committee, it appears that the Committee did little to nothing for at least a year. The [Financial Disclosure] Committee should have at the very least addressed the allegations at the March 2012 Committee meeting.
“Second, the Committee’s process was opaque. In 2011, likely through inaction, then in 2012 by insistence, the Committee did not disclose to members of the Conference the allegations, the actions if any it took, and the reasons for any decisions.”
“Third, the statutory mandate for the Conference, and by delegation to the Committee, was to determine whether there was reasonable cause to refer, not the ultimate merits of whether the Justice’s violations were willful. However, in conversations, letters, and reports, the Committee repeatedly framed its inquiry using the wrong standard.
“As I frequently tell my law clerks, if you address the wrong question, you’re likely to get the wrong answer,” concluded Judge Wolf.
“So many of my colleagues on the bench are deeply disturbed themselves,” added Judge Wolf. “So many of us work so hard to give integrity to the ideal of impartial, equal justice under law. And now that ideal is beleaguered.”
Last week, Chairman Whitehouse sent a letter to the Judicial Conference urging the body to be more transparent about its procedures for considering potential violations of the law by Supreme Court justices in light of new allegations about Justice Thomas exposed in a series of bombshell reports published by ProPublica. The Judicial Conference’s response from earlier this week is here.
Video of the full hearing can be found here. Text of Whitehouse’s as-delivered opening remarks is below, and video of the remarks can be found here. Judge Wolf’s written testimony can be found here and a video of his testimony can be found here.###
One month ago, Congressman Hank Johnson and I wrote to the Judicial Conference of the United States, asking it to look at recent reports that Justice Clarence Thomas violated the Ethics in Government Act by failing to disclose gifts of travel and luxury vacations provided by a right-wing billionaire. The Judicial Conference’s responsibilities under that law are quite clear. If there is “reasonable cause to believe” that Justice Thomas willfully failed to file, then it must refer him to the Justice Department for investigation.
The Judicial Conference is a statutory body, and the Ethics in Government Act is a federal statute, so this is all very much Congress’s business.
The Judicial Conference has a Committee on Financial Disclosure. Our request about the recent Thomas allegations was sent there. I’ve urged that Committee to act with dispatch, and to provide us information to understand how the process is handled.
This is not a first. Believe it or not, we’ve been in nearly this exact situation before. Back in 2011, the nonprofit group Common Cause uncovered that Justice Thomas hadn’t reported years of his wife’s income paid by a right-wing dark-money group. The New York Times reported that Justice Thomas also had not disclosed gifts of free private jet and yacht travel from the same right-wing billionaire — the same kinds of undisclosed gifts from the same right-wing billionaire that were revealed last month.
Then as now, the Ethics in Government Act required Justice Thomas to report these things, and then as now the question was whether there was reasonable cause to believe that Justice Thomas’s omissions were willful, in which case — then as now — referral to the Attorney General is required by law.
So, the Judicial Conference actions then are the prequel to what is in front of it now. More than a decade later, we’re just now getting answers to important questions. Over the past few weeks, I’ve asked the Judicial Conference: Who was on that Committee? What was its process and rationale? What kind of evidence did it consider? And what were the rules and procedures under which all of this took place? The Judicial Conference’s recent response is a helpful start, but there is more we need to know about those events.
We’ll hear today from someone who can help us with pertinent insight into what the Judicial Conference and its Committee on Financial Disclosure did back in 2011. Judge Mark Wolf was a member of the Judicial Conference in 2011 and 2012, and his experience on the Judicial Conference provides special insight into its normal operations and how the Conference handled the incidents involving Justice Thomas. Congress has a role in making sure that our courts are administering federal ethics laws fairly and as intended. If they aren’t, we need a robust record of what has gone wrong and what new laws might be needed to fix it. Judge Wolf’s testimony will help us build that thoughtful record and we are thankful to him for appearing today.
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Meaghan McCabe, (202) 224-2921
