In this case, appearances are everything
I have never been a person for whom appearances matter much.
I don’t crave the latest fashions, and I’ve never cared about driving a fancy car. My front yard contains a patch of bare dirt that’s the site of the latest excavation job performed by our three Great Danes. I’m sure guests find it unsightly — Lord knows, I do — but they are invited anyway.
Appearances don’t matter — unless they do.
Clarence Thomas, a long-standing justice of the U.S. Supreme Court, has apparently enjoyed the largess of a rich and extremely active political figure, Harlan Crow. Thomas has accepted gifts from Crow over the years, including luxury vacations, and in 2014 participated in a real estate deal with Crow that netted the justice $100,000.
Does all of this mean that Thomas ruled unfairly because he was influenced by these gifts? No. When pressed on the issue, Thomas said that he was advised early in his tenure on the court that these kinds of gifts from friends were permissible.
Not only is it surprising to hear one of the nine people in the nation who are charged with making the most important legal decisions excuse his behavior because someone told him it was OK, but his comment also completely misses the point.
Judges cannot engage in conduct that gives the appearance of impropriety. Clarence Thomas only needed to read the rule from the Code of Conduct of United States Judges, which says in part: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”
A judge breaks the rule even if he (or she) does things that don’t affect his decisions, but where a reasonable and well-informed person would believe that his conduct would affect his decisions.
For instance, if my husband were to spend the weekend at the Hotel Monteleone in New Orleans with a buxom young redhead, what would a reasonable person think? He’s a gregarious man who loves the company of women, and I am convinced that he’s faithful and devoted to me. However, no matter how chaste his weekend in the French Quarter might be, the appearance to a reasonable person would be clear.
It’s critical to think about why this is important.
We live in a time when people gather around the coffee pot and whisper about the “deep state.” Every tongue wags about how dysfunctional our society has become. The internet is awash with fantastic stories about one evil cabal or another. To say we don’t have much confidence in our government is an understatement.
What we do have is a rule of law. Our legal system comes to us from the English common law. That system was stripped of its trappings of royalty and installed in our new nation. It is a government of “laws and not men.”
But it is only as good as the judges and justices who preside over it. And “good” means how good we perceive the system to be.
A judge is a powerful person. He or she can take all your property away from you, order your children into foster care, lock you in a cage or, in my state, inject poison into your body and kill you.
If we don’t have confidence in the legal system, it won’t work. Many years ago, long before I knew him, my late father-in-law’s company was one of several defendants in a lawsuit where a part of the rigging of a shrimp boat failed. A man was killed, and a lawsuit ensued. He, along the manufacturer of the part which failed, lost the lawsuit. The judge took notice that the very witnesses my father-in-law’s attorney put forward testified that the part needed to be modified to be safe.
The judge got it right — although my father-in-law went to his grave believing the “judge was on the take.” What would he have thought — and what would everyone else have thought — if the judge had been the recipient of lavish gifts from the winning side?
The reality that the ruling was fair would’ve had the appearance of being unfair if the judge in that long-ago trial had made a real estate deal with the winning side or taken vacations at the winner’s expense.
This is about perception and confidence.
Justice Thomas has done us all a great disservice. His haughty and self-serving response to the criticism has not helped.
Most of all: He has not addressed the fact that is at the heart of this. Perception is reality here.
The perception is that an extremely conservative justice and his politically active wife have gotten a lot of money and perks from politically active conservatives. And that, according to the perception, has influenced his decisions.
I believe that that’s the perception. I pray to God that it’s not the reality.
Frances Coleman is a former editorial page editor of the Mobile Press-Register. Email her at [email protected] and “like” her on Facebook at www.facebook.com/prfrances.