Paper ignores calls for criminal investigations of Supreme Court Justice, growing record of judicial lawlessness...

Ernest A. Canning Byon 9/4/2011, 3:05pm PT

Guest blogged by Ernest A. Canning

However historically inaccurate the phrase may have been, the idea that Emperor Nero fiddled while Rome burned seems apropos the appearance of a David G. Savage fawning Clarence Thomas puff piece on the front page of the Sunday, July 3 edition of Los Angeles Times.

On March 7, as part of our coverage of a Daily Beast article, in which Univ. of Colorado Law Professor Paul Campos called for Thomas to be thrown off the bench, we noted:

In a March 6 Los Angeles Times op-ed, George Washington Law School Prof. Jonathan Turley found allegations that Virginia Thomas received monies from the groups that had a direct interest in the outcome of Citizens United to be "particularly alarming." He went on to compare Thomas' cynical effort to equate criticism of his ethical lapses with an attack on the integrity of the Court to Louis XIV's infamous view that there was no distinction between himself and the state.

Yet, on July 3, Los Angeles Times gave page-one coverage to Savage's uncritical piece that begins with a self-serving description in which Thomas seeks to portray his radical and, at times, outright bizarre legal positions, such as his stand-alone position that prisoners have no constitutional right to be protected from beatings by their guards, as simply a reflection of a rugged individualist who is not afraid to be a minority of one when he thinks he is right.

During Thomas' contentious Senate Judiciary Committee Confirmation Hearings in 1991, the late Sen. Edward "Ted" Kennedy (D-MA) took a very different view as he likened the Thomas nomination to a game of "Russian roulette":

If we confirm a nominee who has not demonstrated a commitment to core constitutional values, we jeopardize our rights as individuals and the future of our nation. We cannot undo such a mistake at the next election or even in the next generation.

The firestorm of controversy surrounding questions about Thomas' conflicts of interest, severe ethical lapses, and possible crimes has momentarily slowed a bit over the past month of Congressional (almost) recess and the usual D.C. media "summer vacation." But the list of reputable individuals and organizations calling for the embattled Associate Supreme Court Justice to be investigated by the U.S. Dept. of Justice, removed from office, and possibly prosecuted is likely to grow again once politics as usual resumes following the Labor Day holiday, according to The BRAD BLOG's discussions with a number of those individuals and organizations.

In the meantime, the question remains as to why Los Angeles Times saw fit not only to publish a ridiculous puff piece on Thomas as the firestorm was still cresting in July, failing to so much as reference these serious issues, but why they even found it necessary to elevate such a softball article to their front page.

Before reaching that, however, let's again examine the real issues...

1991 Confirmation Hearings and the U.S. Senate's blind-eye to perjury

In Prof. Campos' call to "Throw Clarence Thomas Off the Bench" in March, he expressed the belief that it "is very unlikely [that Thomas would] be prosecuted or otherwise sanctioned for the simple reason that, in the United States in 2011, we have a two-tiered system of laws" where, for the vast majority of citizens, "an unusually harsh criminal code" has given rise to "by far the biggest prison population in the world." Nonetheless, he added, "our political and financial elites operate with something approaching complete impunity."

That reality makes a mockery of the words that appear above the portico of the United States Supreme Court: "Equal Justice Under Law." It is a reality which was occasioned in no small measure in 1991 when 52 members of the U.S. Senate voted to confirm Thomas despite the farce that his Confirmation Hearings had become. That vote was, in part, the product of a right-wing media blitz. A then nascent Citizens United organization, among other right-wing groups, chipped in $100,000 for attack ads (aka paid political propaganda) in order to pressure Senators who might otherwise have opposed confirmation.

Perhaps one of the most insightful accounts is that which was furnished by David Brock in his book Blinded by the Right.

Today, many would associate Brock with the progressive watchdog group he founded, Media Matters. But back in 1991, he occupied a role since assumed by the likes of pathological, race-bating liar and serial propagandist Andrew Breitbart.

Unlike Breitbart, Brock proved to have a conscience --- one that led to an insider's disclosure via Blinded by the Right of the cynical right-wing calculations behind the Thomas nomination.

According to Brock, the Thomas nomination was the product of efforts by White House Counsel C. Boyden Gray "and Lee Liberman, a diminutive woman in Coke-bottle glasses who was known as 'Rasputin' for her immense, behind-the-scenes influence over judicial appointments. Working closely with Thomas himself, the duo made a cynical calculation. The only way to slide a hard-right conservative through the Senate was to choose a 'black Bork,' driving a wedge through the civil rights community."

Knowing that the views of the radical-right, billionaire-funded, Robert Bork-founded Federalist Society were at odds with the fundamental precepts of a democratic society bound by the rule of law, "Thomas," according to Brock, was "coached by the Federalist Society confirmation team to give the Judiciary Committee answers to questions that may have been technically true but deliberately misleading."

As revealed by The New York Times in a Sept. 12, 1991 article on the Thomas Hearings, the tactic prompted then Sen. Paul Simon (D-IL) to observe: "If evasiveness before the committee is rewarded, we warp the process."

Federalist Society evasiveness became such a staple during subsequent Senate Judiciary Supreme Court Confirmation Hearings that it prompted U.C.S.D. Law Professor Peter Irons to compare the effort to question Supreme Court Chief Justice John Roberts, more than a decade later, to trying to "nail Jell-O to a wall."

As observed by Sen. Patrick Leahy (D-VT), who was quoted in the 9/12/91 New York Times piece, Thomas' sworn testimony was, at least in one instance, not even technically true. "Thomas said that he did not believe he had ever expressed an opinion about Roe [v. Wade] even in private nor had he ever formulated a personal opinion on the case in the 18 years since it was decided." Sen. Herbert Kohl (D-WI) described that sworn denial as "astonishing."

On that point, it is believed that Thomas had perjured himself, even before Anita Hill, a diminutive African American law professor who had served under Thomas at the federal Equal Employment Opportunity Commission (EEOC), stepped forward to deliver, under oath and in graphic detail, an account of unsolicited sexual advances. It was an account she had previously relayed in contemporaneous conversations with Susan Hoerchner, a CA Workers' Compensation Judge before whom this writer has appeared.

What followed was a vicious, right-wing smear campaign inside the Senate chambers and magnified by the right-wing media echo chamber --- a tactic that has become the hallmark of hard-right smear campaigns ever since.

Brock would know. He played a central role in producing a slanderous, right-wing hit piece, The Real Anita Hill in support of the smear campaign. Even though Brock now admits he believed Hill and thought Thomas had lied, Brock successfully helped to create a caricature of Hill at the time as "a little bit nutty and a little bit slutty."

The growing firestorm

Jonathan Turley's March 6 op-ed which referenced the conflict-of-interest that arises because Thomas' wife stood to personally gain from her husband's critical fifth vote in the now-infamous Citizen's United decision is actually against-the-grain for Los Angeles Times. The last piece the paper published that discussed Thomas 1991 Roe v. Wade canard was published on Oct. 18, 2007. The piece noted that Thomas "was not telling the truth to the Senate," but the article refrained from noting that not telling the truth was perjury --- a crime and impeachable offense.

The July puff piece then came at a time when a growing body of work, including a lengthy June 19, 2011 New York Times exposé suggested that Thomas' ethical lapses are so extensive that one may wish to characterize them as a judicial crime spree.

The New York Times exposé pertained to the long-standing relationship between Thomas and Harlan Crow, a Dallas real estate magnate, Bush Family friend and Board member of the neoconservative American Enterprise Institute. Crow, like the billionaire Koch brothers, is the son of privilege and inherited wealth. Crow's father, Trammell, was "once the largest landlord in the United States."

Crow, who gave $100,000 to the so-called Swift Boat Veterans for Truth organizations in their smear campaign to destroy then Presidential candidate Sen. John Kerry in 2004, has bestowed numerous favors upon the ethically challenged Associate Justice and his wife over the years. Some of those favors include flights on his private jet, hosting the couple aboard his 161-foot private yacht and a stay at an exclusive, CA Bohemian Grove retreat. Crow gave Thomas "a gift" of a Frederick Douglass bible valued at $19,000, and a bust of Lincoln valued at $15,000.

All of that provides some context to Thomas' self-assessment of his day job as a salaried $213,900/year Associate Justice of the U.S. Supreme Court.

As David Savage reported in his Los Angeles Times puff piece, Thomas complained: "There's not much that entices about the job [of Supreme Court Justice]." Savage reports that Thomas told a college audience: "There's no money in it. No privacy. No big houses...I wouldn't say I like it."

Those statements provide context to the fact that Thomas appears to have knowingly falsified his Judicial Financial Disclosure Forms by failing to disclose that Ginni received nearly $700,000 from the right wing Heritage Foundation.

There's a great deal of money to be made in cultivating wealthy right wing benefactors like Crow, whom The New York Times reports gave $500,000 in start-up monies for Virginia Thomas' "Tea Party" group. That sum, more than double Thomas' salary, was paid to Liberty Central, a 501(c)(4) tax-exempt advocacy group that Ginni Thomas incorporated just after Citizen's United was argued before the Court, but prior to the Court's announced decision. The amount would be enough to cover Ginni's salary in full for the first three years of the group's operation, according to the organization's own subsequent financial disclosures.

One would think that it can't get much worse than what Thomas critics have described as "judicial insider trading" in regards knowledge of the court's then forthcoming decision in the Citizens United case. Yet, we then learned from Adele M. Stan of AlterNet that, "at its inception Liberty Central was linked to two groups --- the Missouri Sovereignty Project and Gun Owners of America --- whose leaders called for the making of war on the US government, and one, Tradition Family and Property, whose leader called the Spanish Inquisition 'a beautiful thing.'"

"Each of these groups," Stan reported, "were listed on the Liberty Central Web site as 'Friends of Liberty Central.'"

The epitome of a closed, authoritarian mind

Savage's L.A. Times puff piece notes that every summer Thomas invites his law clerks over to watch the 1949 film version of Ayn Rand's The Fountainhead, in which the individualistic protagonist, Howard Roark (portrayed by Gary Cooper), is a young architect who prefers to struggle in obscurity rather than compromise artistic expression.

While that may be the ideal in the realm of art and architecture, as an attorney I can personally say that the last thing I would want to do is argue a case before a judge who thinks he already knows the answer before I utter a word.

Savage cites a statistic that I found appalling. Thomas "has not asked a question or made a comment [during oral arguments] in more than five years."

Why ask questions or make comments when your mind is already made up?

The authoritarian nature of that closed mind is reflected in another Thomas remark, as quoted by Savage: "I won't hire clerks who have profound disagreements with me. It's like trying to train a pig. It wastes your time, and it aggravates the pig."

Thomas doesn't just "think" he's right. He "knows" he's right, so much so, that he relegates anyone who profoundly disagrees with him to the status of a "pig." Thomas, Professor Cass Sunstein suggests in Radicals in Robes: Why Extreme Right Wing Courts are Wrong for America is the epitome of a fundamentalist. "Fundamentalists know that current constitutional law does not reflect their own views, and they feel angry and even embattled about that fact."

It is this dangerous, authoritarian mindset which likely explains why Thomas remains silent during oral arguments. Even on a right-wing Court, Thomas' views are so extreme that he has stood alone in his assertions that states have a right to establish an official religion or that school officials have a right to strip-search a 13-year old girl to look for ibuprofen pills.

Add to this Thomas' series of ethical lapses that amount to a judicial crime spree and you come to understand the danger posed to the rights of all Americans by allowing an utterly dishonest ideologue to remain on our nation's highest court.

Why now, L.A. Times?

Was the timing and front-page placement of the Thomas puff piece mere coincidence? Was it the product of shoddy journalism, or something worse? Was it an effort to knee-cap the growing calls for Thomas' removal from office and calls for the invalidation of the Citizens United --- from which the corporate media stands to handsomely profit (courtesy of corporate campaign ads)? Or might the purpose of the article have been to serve as a counter to the rising movement calling for Thomas to recuse himself from a likely Supreme Court hearing on the constitutionality of the Obama Administration's health care insurance reform bill, given his wife's oft-stated public position that the law is unconstitutional?

The editors of Southern California's most influential paper owe their readers some answers, though few are likely to be proffered. An article such as Savage's, serving as little more than a distraction at a time when additional journalist light needs to be offered to a heated controversy of national import, may tell us more about the once-great paper's political position than any express explanation that Los Angeles Times might deem to offer.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).



