[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Extensions of Remarks]
[Pages 10060-10062]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   PUBLIC TRUST AND THE SUPREME COURT

                                 ______
                                 

                     HON. LOUISE McINTOSH SLAUGHTER

                              of new york

                    in the house of representatives

                         Friday, June 24, 2011

  Ms. SLAUGHTER. Mr. Speaker, I rise today to express my concern over 
ethically questionable conduct of Supreme Court Justice Clarence Thomas 
that threatens to undermine public trust in our judicial system.
  Justice Thomas has repeatedly engaged in questionable actions and 
hidden them from public view. Just this weekend, the New York Times 
revealed troubling details about favors Justice Thomas has received 
from a millionaire real estate magnate named Harlan Crow.
  Despite the revelations, Justice Thomas refuses to provide details 
about his relationship with Mr. Crow. The report from the New York 
Times is the latest in a long line of troubling actions taken by 
Justice Thomas, yet he refuses to share the necessary information to 
ensure that his service on the bench is fair and free from conflict of 
interest.
  No one should be above the law, especially those chosen to uphold it.

                [From the New York Times, June 18, 2011]

         Friendship of Justice and Magnate Puts Focus on Ethics

       Pin Point, GA.--Clarence Thomas was here promoting his 
     memoir a few years ago when he bumped into Algernon Varn, 
     whose grandfather once ran a seafood cannery that employed 
     Justice Thomas's mother as a crab picker.
       Mr. Varn lived at the old cannery site, a collection of 
     crumbling buildings on a salt marsh just down the road from a 
     sign heralding this remote coastal community outside Savannah 
     as Justice Thomas's birthplace. The justice asked about plans 
     for the property, and Mr. Varn said he hoped it could be 
     preserved.
       ``And Clarence said, `Well, I've got a friend I'm going to 
     put you in touch with,''' Mr. Varn recalled, adding that he 
     was later told by others not to identify the friend.
       The publicity-shy friend turned out to be Harlan Crow, a 
     Dallas real estate magnate and a major contributor to 
     conservative causes. Mr. Crow stepped in to finance the 
     multimillion-dollar purchase and restoration of the cannery, 
     featuring a museum about the culture and history of Pin Point 
     that has become a pet project of Justice Thomas's.
       The project throws a spotlight on an unusual, and ethically 
     sensitive, friendship that appears to be markedly different 
     from those of other justices on the nation's highest court.
       The two men met in the mid-1990s, a few years after Justice 
     Thomas joined the court. Since then, Mr. Crow has done many 
     favors for the justice and his wife, Virginia, helping 
     finance a Savannah library project dedicated to Justice 
     Thomas, presenting him with a Bible that belonged to 
     Frederick Douglass and reportedly providing $500,000 for Ms. 
     Thomas to start a Tea Party-related group. They have also 
     spent time together at gatherings of prominent Republicans 
     and businesspeople at Mr. Crow's Adirondacks estate and his 
     camp in East Texas.
       In several instances, news reports of Mr. Crow's largess 
     provoked controversy and questions, adding fuel to a rising 
     debate about Supreme Court ethics. But Mr. Crow's financing 
     of the museum, his largest such act of generosity, previously 
     unreported, raises the sharpest questions yet--both about 
     Justice Thomas's extrajudicial activities and about the 
     extent to which the justices should remain exempt from the 
     code of conduct for federal judges.
       Although the Supreme Court is not bound by the code, 
     justices have said they adhere to it. Legal ethicists 
     differed on whether Justice Thomas's dealings with Mr. Crow 
     pose a problem under the code. But they agreed that one facet 
     of the relationship was both unusual and important in 
     weighing any ethical implications: Justice Thomas's role in 
     Mr. Crow's donation for the museum.
       The code says judges ``should not personally participate'' 
     in raising money for charitable endeavors, out of concern 
     that donors might feel pressured to give or entitled to 
     favorable treatment from the judge. In addition, judges are 
     not even supposed to know who donates to projects honoring 
     them.
       While the nonprofit Pin Point museum is not intended to 
     honor Justice Thomas, people involved in the project said his 
     role in the community's history would inevitably be part of 
     it, and he participated in a documentary film that is to 
     accompany the exhibits.
       Deborah L. Rhode, a Stanford University law professor who 
     has called for stricter ethics rules for Supreme Court 
     justices, said Justice Thomas ``should not be directly 
     involved in fund-raising activities, no matter how worthy 
     they are or whether he's being centrally honored by the 
     museum.''
       On the other hand, the restriction on fund-raising is 
     primarily meant to deter judges from using their position to 
     pressure donors, as opposed to relying on ``a rich friend'' 
     like Mr. Crow, said Ronald D. Rotunda, who teaches legal 
     ethics at Chapman University in California.

[[Page 10061]]

       ``I don't think I could say it's unethical,'' he said. 
     ``It's just a very peculiar situation.''
       Justice Thomas, through a Supreme Court spokeswoman, 
     declined to respond to a detailed set of questions submitted 
     by The New York Times. Mr. Crow also would not comment.
       Supreme Court ethics have been under increasing scrutiny, 
     largely because of the activities of Justice Thomas and Ms. 
     Thomas, whose group, Liberty Central, opposed President 
     Obama's health care overhaul--an issue likely to wind up 
     before the court. Mr. Crow's donation to Liberty Central was 
     reported by Politico.
       In January, the liberal advocacy organization Common Cause 
     asked the Justice Department to investigate whether Justices 
     Thomas and Antonin Scalia should have recused themselves from 
     last year's Citizens United campaign finance case because 
     they had attended a political retreat organized by the 
     billionaire Koch brothers, who support groups that stood to 
     benefit from the court's decision.
       A month later, more than 100 law professors asked Congress 
     to extend to Supreme Court justices the ethics code that 
     applies to other federal judges, and a bill addressing the 
     issue was introduced.
       It is not unusual for justices to accept gifts or take part 
     in outside activities, some with political overtones.
       Justice Stephen G. Breyer has attended Renaissance Weekend, 
     a retreat for politicians, artists and media personalities 
     that is a favorite of Democrats, including former President 
     Bill Clinton. Justice Ruth Bader Ginsburg participated in a 
     symposium sponsored by the National Organization for Women's 
     Legal Defense and Education Fund, and a philanthropic 
     foundation once tried to give her a $100,000 achievement 
     award. She instructed that the money be given to charity.
       But in the case of Justice Thomas and his dealings with Mr. 
     Crow, the ethical complications appear more complex.


                           conservative ties

       Mr. Crow, 61, manages the real estate and investment 
     businesses founded by his late father, Trammell Crow, once 
     the largest landlord in the United States. The Crow family 
     portfolio is worth hundreds of millions of dollars and 
     includes investments in hotels, medical facilities, public 
     equities and hedge funds.
       A friend of the Bush family, Mr. Crow is a trustee of the 
     George Bush Presidential Library Foundation and has donated 
     close to $5 million to Republican campaigns and conservative 
     groups. Among his contributions were $100,000 to Swift Boat 
     Veterans for Truth, the group formed to attack the Vietnam 
     War record of Senator John Kerry, the 2004 Democratic 
     presidential candidate, and $500,000 to an organization that 
     ran advertisements urging the confirmation of President 
     George W. Bush's nominees to the Supreme Court.
       Mr. Crow has not personally been a party to Supreme Court 
     litigation, but his companies have been involved in federal 
     court cases, including four that went to the appellate level. 
     And he has served on the boards of two conservative 
     organizations involved in filing supporting briefs in cases 
     before the Supreme Court. One of them, the American 
     Enterprise Institute, with Mr. Crow as a trustee, gave 
     Justice Thomas a bust of Lincoln valued at $15,000 and 
     praised his jurisprudence at an awards gala in 2001.
       The institute's Project on Fair Representation later filed 
     briefs in several cases, and in 2006 the project brought a 
     lawsuit challenging federal voting rights laws, a case in 
     which Justice Thomas filed a lone dissent, embracing the 
     project's arguments. The project director, an institute 
     fellow named Edward Blum, said the institute supported his 
     research but did not finance the brief filings or the Texas 
     suit, which was litigated pro bono by a former clerk of 
     Justice Thomas's.
       ``When it came time to file a lawsuit,'' he said, ``A.E.I. 
     had no role in doing that.''


                         coming up with a plan

       In addition to his interest in politics and policy, Mr. 
     Crow is well known for his keen devotion to history.
       A backyard garden at his $24 million Dallas residence is 
     dominated by old statues of dictators he has collected from 
     fallen regimes, including Lenin and Stalin. His private 
     library is packed with 8,000 rare books and artifacts, 
     including a Senate roll call sheet from Justice Thomas's 
     confirmation and a ``thank you'' letter from the justice, 
     according to local news reports.
       There are a number of reasons Justice Thomas might be 
     thankful to Mr. Crow. In addition to giving him the Douglass 
     Bible, valued 10 years ago at $19,000, Mr. Crow has hosted 
     the justice aboard his private jet and his 161-foot yacht, at 
     the exclusive Bohemian Grove retreat in California and at his 
     grand Adirondacks summer estate called Topridge, a 105-acre 
     spread that once belonged to Marjorie Merriweather Post, the 
     cereal heiress.
       Christopher Shaw, a folk singer who said he had been 
     invited several times to perform at Topridge, recalled seeing 
     Justice Thomas and his family ``on one or two occasions.'' 
     They were among about two dozen guests who included other 
     prominent Republicans--last summer, the younger Mr. Bush 
     stopped by.
       ``There would be guys puffing on cigars,'' Mr. Shaw said. 
     ``Clarence just kind of melted in with everyone else. We got 
     introduced at dinner. He sat at Harlan's table.''
       Mr. Crow's $175,000 donation to the library in Savannah in 
     2001 started out anonymous, but it was eventually made public 
     amid opposition to the project by some local black leaders 
     who did not like Justice Thomas's politics. Similarly, Mr. 
     Crow sought to keep his role in the museum quiet.
       At first glance the Pin Point Heritage Museum, scheduled to 
     open this fall, would seem an unlikely catalyst for an 
     ethical quandary. That Pin Point's history is worthy of 
     preservation is not in dispute.
       Part of the Gullah/Geechee Cultural Heritage Corridor 
     designated by Congress, it is representative of tight-knit 
     Southern coastal settlements that trace their roots to freed 
     slaves and were often based around fishing. In Pin Point, the 
     Varn crab and oyster cannery, founded in the 1920s, was a 
     primary source of jobs until it closed in 1985.
       Mr. Varn and his wife, Sharon, said they had long hoped the 
     property could be saved from commercial development but had 
     little success coming up with a plan. That changed after 
     their chance encounter with Justice Thomas, who was visiting 
     his childhood home with a television news crew.
       Justice Thomas, 62, was born and raised near the cannery 
     overlooking the Moon River, where it was not uncommon for 
     babies to rock in bassinets made of crab baskets while their 
     mothers shucked oysters. He sympathized with the Varns' 
     wishes and said he had a friend who could help, Mr. Varn 
     said.
       The Varns eventually sold their property in April 2008. 
     During a recent interview at their home near the cannery, 
     they made it clear that they were ``not supposed to say'' who 
     the buyer was, and a news release issued last November by a 
     Savannah public relations firm said the museum was being 
     ``privately funded by an anonymous donor.''
       But the paper trail leads back to Mr. Crow, and in 
     interviews at the project site, people working on it 
     acknowledged that he was financing it. Property records show 
     a company called HKJRS/Pinpoint bought the land for $1.5 
     million, and incorporation records say the company is 
     controlled by a Dallas-based partnership run by Mr. Crow.
       Project documents reviewed by The Times show a preliminary 
     construction budget of $1.3 million, but it is unclear if 
     that includes expenses related to the content and design of 
     the museum.
       Justice Thomas remains closely involved with the project. 
     Emily Owens, a museum spokeswoman who works for Mr. Crow's 
     company, said the justice ``played a big part'' in creating a 
     video documentary that will be part of the museum experience. 
     He hosted a design team from Dallas for a four-hour meeting 
     at his Supreme Court offices in February.
       And he has had a role in picking people to help with the 
     museum. Barbara Fertig, a history professor at Armstrong 
     Atlantic State University in Savannah, said that she was 
     asked to meet with Justice Thomas last spring and that ``by 
     the end of the meeting, he said he would like me to work on 
     this project.''
       She said she had ``never been particularly curious'' about 
     why Mr. Crow is financing it, adding that costly preservation 
     projects are often possible only because of philanthropy 
     motivated by friendships. Justice Thomas and Mr. Crow would 
     seem to fall into that category, Ms. Fertig said.
       ``I've been in the company of the two of them together,'' 
     she said, ``and they certainly really are friends.''


                          the code of conduct

       That friendship is important to determining whether Justice 
     Thomas's interactions with Mr. Crow conflict with the code, 
     said Raymond J. McKoski, a retired state judge in Illinois 
     who wrote a law review article on charitable fund-raising by 
     judges. If Justice Thomas did not ``misuse the prestige of 
     office'' in getting Mr. Crow to take on the project, it 
     should not be a concern, he said.
       ``Some of it depends on the conversations that took 
     place,'' Mr. McKoski said. ``Who brought up the idea? How 
     willing was Mr. Crow to do it? What exact questions were 
     asked by Justice Thomas?''
       Beyond the admonition against fund-raising, the code 
     generally discourages judges from partaking in any off-the-
     bench behavior that could create even the perception of 
     partiality. It acknowledges the value in judges' being 
     engaged with their communities, lecturing on the law and 
     doing charitable work, but draws a line where those 
     activities might cause a reasonable person to worry that a 
     judge is indebted to or influenced by someone.
       ``The code of conduct is quite clear that judges are not 
     supposed to be soliciting money for their pet projects or 
     charities, period,'' said Arn Pearson, a lawyer with Common 
     Cause. ``If any other federal judge was doing it, he could 
     face disciplinary action.''
       The justices are not bound by the federal judiciary's 
     conduct code, because it is enforced by a committee of judges 
     who rank below the justices. Even so, Justices Breyer and 
     Anthony M. Kennedy said in testimony before Congress in April 
     that the justices followed the code.

[[Page 10062]]

       Beyond the code, the justices must comply with laws 
     applying to all federal officials that prohibit conflicts of 
     interest and require disclosure of gifts. Justice Thomas's 
     gift acceptances drew attention in 2004, when The Los Angeles 
     Times reported that he had accumulated gifts totaling $42,200 
     in the previous six years--far more than any of the other 
     justices.
       Since 2004, Justice Thomas has never reported another gift. 
     He has continued to disclose travel costs paid by schools and 
     organizations he has visited for speeches and teaching, but 
     he has not reported that any travel was provided by Mr. Crow.
       Travel records for Mr. Crow's planes and yacht, however, 
     suggest that Justice Thomas may have used them in recent 
     years.
       In April 2008, not long after Mr. Crow bought the Pin Point 
     property, one of his private planes flew from Washington to 
     Savannah, where his yacht, the Michaela Rose, was docked.
       That same week, an item appeared in a South Carolina 
     lawyers' publication noting that Justice Thomas was arriving 
     aboard the Michaela Rose in Charleston, a couple of hours 
     north of Savannah, where the Crow family owns luxury vacation 
     properties. The author was a prominent lawyer who said she 
     knew of the visit because of a family connection to Mr. Crow.
       Justice Thomas reported no gifts of travel that month in 
     his 2008 disclosure. And there are other instances in which 
     Justice Thomas's travels correspond to flights taken by Mr. 
     Crow's planes.
       On Jan. 4, 2010, when Justice Thomas was in Savannah for 
     the dedication of a building in his honor, Mr. Crow's plane 
     flew from Washington to Savannah and returned to Washington 
     the next day. Justice Thomas reported in his financial 
     disclosure that his travel had been paid for by the Savannah 
     College of Art and Design, which owned the building.
       In his 2009 financial disclosure, Justice Thomas reported 
     that Southern Methodist University in Dallas--Trammell Crow's 
     alma mater--had provided his travel for a speech there on 
     Sept. 30. Flight records show that Mr. Crow's plane flew from 
     Washington to Dallas that day.
       Among the questions The Times submitted to Justice Thomas 
     was whether he was on any of those flights, and if so, 
     whether the colleges reimbursed him or Mr. Crow. The colleges 
     declined to comment.
       One item not required to be reported in Justice Thomas's 
     financial disclosures is the millions of dollars Mr. Crow is 
     spending on the museum. That is because the money is not 
     being given to the justice as a gift.
       For Algernon and Sharon Varn, who said they were thrilled 
     to see a cherished piece of local history being restored, the 
     museum is a gift to the community. While it is about more 
     than Justice Thomas, they said, he deserves credit for 
     putting them together with someone who had the money and the 
     interest to make the project a reality.
       ``He was instrumental in getting the process started, 
     because he wanted it preserved to show that no matter where 
     you came from, you can go where you want,'' Mr. Varn said. 
     ``He had a meager existence, and yet look where he is today. 
     It's a great American story.''

                          ____________________