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Owner / Staff Michael Phoenix: Thank you to Mark for submitting this Op-Ed.
Supreme Court Justices Are Not Above the Law
The whining of Clarance Thomas about how the public is bullying him as he seeks to destroy women's rights caused me to think about the highly controversial texts sent by his wife. She repeatedly urged White House Chief of Staff Mark Meadows to pursue efforts to overturn the 2020 presidential election.
Given the nature of his wife’s political activities and Thomas’s own ethical missteps — along with historical precedent involving an earlier Supreme Court justice — the Biden Administration and Democrats in Congress need to push strenuously for Thomas’s resignation. Biden needs to clear his desk and focus on Thomas' removal.
The Thomas situation harkens back to the resignation of, the second person to hold the so-called “Jewish Seat”, Justice Abraham Fortas. President Lyndon Johnson appointed Fortas to the Supreme Court in 1965. When Chief Justice Earl Warren was ready to retire in 1968, Johnson nominated Fortas to assume the role of chief justice. Some Senate Republicans and Southern Democrats joined together to filibuster his nomination, and Johnson eventually withdrew it. Warren and Fortas remained in their positions. Fortas would have been the first Jewish chief justice.
Fortas’s 1968 confirmation hearing radically departed from tradition — 22 consecutive Supreme Court nominees had breezed through the approval process. The hyper-politicization of the appointment process by the senators who opposed his nomination changed the way Supreme Court justices are selected, resulting in the rancorous, highly politicized, and drawn-out system that we have today.
Richard Nixon was soon elected president. He and Warren had a three-decade-long feud from their days as California politicians. Nixon and his aides worked tirelessly to dismantle the liberal Warren (R) Court. A well-known anti-Semite, Nixon targeted Fortas, who was politically vulnerable after the filibuster of his nomination. Nixon’s attorney general (and future Watergate felon), John Mitchell, ordered an unprecedented investigation into Fortas’s finances. DOJ investigators uncovered evidence that Fortas had accepted a $20,000 retainer to serve on the board of a charitable foundation controlled by a financier who was about to be indicted on securities violations. Fortas returned the money.
Fortas resisted calls for him to resign until Mitchell’s Justice Department, without any new evidence, reopened an old, abandoned investigation into Fortas’s wife, Carolyn Agger, who was an attorney. Mitchell convened a grand jury to determine whether Agger had engaged in obstruction of justice by withholding case documents relevant to a case. This new underhanded attack from the Nixon White House convinced Fortas to resign, Mitchell quickly ended the grand jury proceedings. Nixon and his cronies wrongly but successfully ended Fortas judgeship.
Nixon ended up appointing two conservative justices to replace Fortas and Warren, and his two subsequent appointments swung the balance of the Court in favor of conservatives. The so-called "Jewish seat" (Cardozo-Frankfurter-Goldberg-Fortas) also came to an end with Fortas’s resignation. Jewish justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagen would later be appointed to the Court, with Breyer in the same lineage as the “Jewish seat.” With Breyer’s recent retirement, Kagen is now the only Jewish justice on the Court.
The Ginni Thomas situation is an extraordinary case that requires action. It’s not directly about the content of her texts. The critical ethical issues are that she had special access to the White House because she’s the wife of a Supreme Court justice and she made herself a player in Trump’s relentless effort to overturn a free and fair election. By any reasonable standard, Thomas should not participate in any case involving the January 6 insurrection due to his wife’s involvement in this seditious event. There’s both the appearance of impropriety and a high risk of lack of impartiality.
Additionally, ethical controversies have dogged Clarence Thomas throughout his tenure on the Court. He has repeatedly been called out for his accepting large fees from conservative groups for speaking engagements, as well as accepting expensive gifts and favors from a controversial Republican donor.
Former Supreme Court Justice David Souter remarked, “The power of the court is the power of trust earned — the trust of the American people.” For many people, trust in the Supreme Court has become much more tenuous as the Court’s conservative majority has become increasingly partisan and out of step with the majority of Americans. To help rebuild trust in the Court’s impartiality, President Biden and Democrats need to be more assertive in demanding Thomas’s immediate resignation. Abe Fortas had been pressured to resign for much flimsier reasons. History shows that Fortas did nothing wrong other than being Jewish. History won’t be so kind to Justice Thomas.
Mark Pinsley, Allentown PA
Given the nature of his wife’s political activities and Thomas’s own ethical missteps — along with historical precedent involving an earlier Supreme Court justice — the Biden Administration and Democrats in Congress need to push strenuously for Thomas’s resignation. Biden needs to clear his desk and focus on Thomas' removal.
The Thomas situation harkens back to the resignation of, the second person to hold the so-called “Jewish Seat”, Justice Abraham Fortas. President Lyndon Johnson appointed Fortas to the Supreme Court in 1965. When Chief Justice Earl Warren was ready to retire in 1968, Johnson nominated Fortas to assume the role of chief justice. Some Senate Republicans and Southern Democrats joined together to filibuster his nomination, and Johnson eventually withdrew it. Warren and Fortas remained in their positions. Fortas would have been the first Jewish chief justice.
Fortas’s 1968 confirmation hearing radically departed from tradition — 22 consecutive Supreme Court nominees had breezed through the approval process. The hyper-politicization of the appointment process by the senators who opposed his nomination changed the way Supreme Court justices are selected, resulting in the rancorous, highly politicized, and drawn-out system that we have today.
Richard Nixon was soon elected president. He and Warren had a three-decade-long feud from their days as California politicians. Nixon and his aides worked tirelessly to dismantle the liberal Warren (R) Court. A well-known anti-Semite, Nixon targeted Fortas, who was politically vulnerable after the filibuster of his nomination. Nixon’s attorney general (and future Watergate felon), John Mitchell, ordered an unprecedented investigation into Fortas’s finances. DOJ investigators uncovered evidence that Fortas had accepted a $20,000 retainer to serve on the board of a charitable foundation controlled by a financier who was about to be indicted on securities violations. Fortas returned the money.
Fortas resisted calls for him to resign until Mitchell’s Justice Department, without any new evidence, reopened an old, abandoned investigation into Fortas’s wife, Carolyn Agger, who was an attorney. Mitchell convened a grand jury to determine whether Agger had engaged in obstruction of justice by withholding case documents relevant to a case. This new underhanded attack from the Nixon White House convinced Fortas to resign, Mitchell quickly ended the grand jury proceedings. Nixon and his cronies wrongly but successfully ended Fortas judgeship.
Nixon ended up appointing two conservative justices to replace Fortas and Warren, and his two subsequent appointments swung the balance of the Court in favor of conservatives. The so-called "Jewish seat" (Cardozo-Frankfurter-Goldberg-Fortas) also came to an end with Fortas’s resignation. Jewish justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagen would later be appointed to the Court, with Breyer in the same lineage as the “Jewish seat.” With Breyer’s recent retirement, Kagen is now the only Jewish justice on the Court.
The Ginni Thomas situation is an extraordinary case that requires action. It’s not directly about the content of her texts. The critical ethical issues are that she had special access to the White House because she’s the wife of a Supreme Court justice and she made herself a player in Trump’s relentless effort to overturn a free and fair election. By any reasonable standard, Thomas should not participate in any case involving the January 6 insurrection due to his wife’s involvement in this seditious event. There’s both the appearance of impropriety and a high risk of lack of impartiality.
Additionally, ethical controversies have dogged Clarence Thomas throughout his tenure on the Court. He has repeatedly been called out for his accepting large fees from conservative groups for speaking engagements, as well as accepting expensive gifts and favors from a controversial Republican donor.
Former Supreme Court Justice David Souter remarked, “The power of the court is the power of trust earned — the trust of the American people.” For many people, trust in the Supreme Court has become much more tenuous as the Court’s conservative majority has become increasingly partisan and out of step with the majority of Americans. To help rebuild trust in the Court’s impartiality, President Biden and Democrats need to be more assertive in demanding Thomas’s immediate resignation. Abe Fortas had been pressured to resign for much flimsier reasons. History shows that Fortas did nothing wrong other than being Jewish. History won’t be so kind to Justice Thomas.
Mark Pinsley, Allentown PA