Odor in the Court

Supreme Court Justice Clarence Thomas insists that because he reported the sometimes lavish gifts he has received over the years, he should be off the hook. Legally, perhaps, but not ethically.

Appearances matter, and Thomas’ willingness to receive gifts, although they are allowable under federal law, suggests that he cares as little as his mentor, Antonin Scalia, about whether the court is perceived as a fair and impartial decision-maker. Moreover, that Thomas and other judges who have accepted large gifts can take refuge in the court’s sly interpretation of federal ethics rules speaks to a fundamental problem with those rules.

Thomas has reaped a windfall of freebies, by judicial standards, since he joined the court in 1991. Between 1998 and 2003, the only period for which disclosure forms are on file at the court, Thomas accepted $42,000 in gifts, from a Bible valued at $19,000 to a set of tires. Sandra Day O’Connor is a distant second, reporting a paltry $5,025 during the same period, much of it in glass and crystal items.

The 1989 Ethics in Government Act bars all federal employees, including judges, from accepting “anything of value” from a person with official business before them. The federal courts have interpreted that law as allowing judges to accept gifts of unlimited value so long as the donor doesn’t have business before the court at the time the gift is given, a caveat that is both meaningless and dangerous.

The Florida pest control executive who wrote Thomas a $5,000 check to defray tuition for Thomas’ grand-nephew had no matters before the court when wrote his check. But federal judges serve for life, and there is no certainty the giver won’t meet the getter in court one day. If so, it would be hard to forget those lavish goodwill gestures.

Scalia also knows a thing or two about mixing business with friendship. He was justly excoriated last year for accepting an invitation to hunt ducks with Vice President Dick Cheney. Although Scalia indignantly insisted the trip would not influence his vote in a case then before the court involving the vice president, no one was surprised that Scalia joined the majority that later ruled for Cheney. Scalia largely paid his own travel expenses, but his trip raised the same concerns about a potential quid pro quo as Thomas’ heap of gifts.

That odor of impropriety is why the federal courts should heed the American Bar Assn.’s urging that judges forgo expensive gifts, regardless of the donor.