When the first revelations in the Clarence Thomas ethics scandal burst forth, conservative intellectuals rushed indignantly to his defense. Sure, they said, he has one very close personal friend (Harlan Crow) who just happens to be extremely rich, and was personally moved to cover educational expenses for his adopted son, his childhood home, and some personal hospitality. But there’s no big scandal in wanting to educate an underprivileged child or care for a poor widow.
As reporters have pried more and more details, none of which Thomas has voluntarily disclosed, the facts have gotten worse, and their previous defenses have grown inoperative. Thomas turns out to have not one but several close personal billionaire friends, and they turn out to subsidize some rather lavish tastes on the justice’s part.
After the most recent revelations, Thomas’s defenders have gone conspicuously silent. Organs like National Review and conservative legal apparatchik Ed Whelan, who loudly dismissed evidence of wrongdoing by Thomas, have had nothing to say about Thomas’s many billionaire patrons.
Now, finally, comes a defense (sort of): A total of 112 former Thomas law clerks have signed an open letter defending him against charges of impropriety. It is a revealing document.
By “defending,” I don’t mean detailing the charges against Thomas and explaining why they lack merit. Rather, their approach is simply to insist Thomas is a good person while pretending the exhaustive evidence of his unethical behavior does not exist at all.
In lieu of any engagement with the facts of Thomas’s misconduct, the letter is padded out with biographical detail, in the style of a book report written by a sixth grader. The authors explain that Thomas “descended from West African slaves, was “born to a young mother, not more than 20, in segregated Georgia.” We learn “His father left. And a fire took all he had and the shack where he lived,” and even receive details of major world events that took place during his life. (“Then came 1968. King was assassinated. Then Kennedy. It transformed him. He left behind hopes of the priesthood. He found Black Power. He wrote about revolution.”)
There is just one small passage in the letter that even acknowledges the evidence of misconduct:
Lately, the stories have questioned his integrity and his ethics for the friends he keeps. They bury the lede. These friends are not parties before him as a Justice of the Court. And these stories are malicious, perpetuating the ugly assumption that the Justice cannot think for himself.
So the main defense is that Thomas is allowed to accept millions of dollars’ worth of gifts as long as his patrons are not personally involved in Supreme Court litigation? (As far as we know, anyway — since Thomas refuses to disclose his gifts, the public is only aware of what the media has been able to figure out in the face of his secrecy.)
The secondary defense is that there is an “ugly assumption that the Justice cannot think for himself” by reporting on his defiance of anti-corruption norms. Here, the Thomas defenders play the race card in a way that would make Ibram Kendi blush. They are insinuating somehow that Thomas is allowed to accept millions of dollars in undisclosed personal gifts, which no government officials would be permitted to receive, and that only racism can explain why the media would even report it.
In conjunction with the letter’s detailed recitation of the racism he experienced in his youth (I’ve only quoted a small portion of the letter, which is heavily padded), the argument seems to be that Thomas is exempt from ordinary ethical requirements on account of his race, and that only racists would even want the public to know who’s underwriting his lifestyle.
The rest of the letter is given over to multiple assertions that his integrity is beyond reproach: “Justice Thomas is a man of greatest intellect, of greatest faith, and of greatest patriotism. We know because we lived it. He is a man of unwavering principle. He welcomes the lone dissent. He is also a man of great humor and warmth and generosity … His integrity is unimpeachable. And his independence is unshakable … we unequivocally reject attacks on his integrity, his character, or his ethics.”
They reject any question of his ethics! And they somehow believe that their position as clerks, whose careers benefit from Thomas’s prestige and influence, somehow makes them more rather than less suited to make this judgment. Taken at their word, they believe a factual allegation of ethical misconduct can be adjudicated entirely on a combination of Thomas’s identity as a once-poor Black man and their say-so as judges of character.
This doesn’t tell us anything about Thomas’s compliance with ethics rules. It does, however, reveal a lot about conservative legal reasoning.
