FLASHBACK: Concerns About Recusal & Disclosure Date Back To Clarence Thomas' SCOTUS Nomination

July 06, 2011 3:40 pm ET — Jamison Foser

Supreme Court Justice Clarence Thomas has faced widespread criticism in recent months over alleged conflicts of interest and improper disclosure of financial interests, including a failure to disclose roughly $700,000 in income his wife received from the conservative Heritage Foundation and his own participation in fundraising efforts for a variety of conservative political causes. 

Maybe we should have seen this coming. When President George H. W. Bush nominated Thomas to the high court in 1991, some legal experts raised concerns that Thomas had ruled on a case in which his longtime political patron, then-Sen. John Danforth (R-MO), had a financial stake. Others criticized Thomas for failing to recuse himself from Oliver North's appeal of his Iran-Contra conviction, despite the fact that Thomas had previously praised North.

In explaining its opposition to Thomas' nomination to the Supreme Court, the National Association of Criminal Defense Lawyers highlighted his decision not to recuse himself from the North case:

They also criticized Thomas for failing to "recuse himself when his impartiality could reasonably be questioned raises a serious concern about his ethical judgment and ability to separate personal bias from official judicial responsibility."

The group said Thomas, in speeches and a published article, "heaped personal praise on Oliver North for 'exposing congressional irresponsibility,' yet subsequently Thomas saw no problem with his voting as an appellate judge on whether to hear North's appeal of his conviction for endeavoring to obstruct Congress." [UPI, 8/26/91, via Nexis]

The Public Interest Law Center of Philadelphia raised similar concerns in opposing Thomas' nomination:

Judge Thomas, before his appointment to the bench praised Oliver North for his defiance of Congressional efforts to control the Executive power in supporting the Nicaraguan Contras. This support raises grave questions about his views on the separation of power and his willingness to stand up to attempts at Executive usurpations. It also raises a serious ethical question why he later voted as a federal judge to deny rehearing en banc and therefore to uphold the panel decision which upset North's conviction for lying to Congress. [Public Interest Law Center of Philadelphia press release, 9/24/91, via Nexis]

During Thomas' confirmation hearings, Sen. Pat Leahy (D-VT) asked if Thomas ever "consider[ed] disqualifying yourself from sitting in judgment on Colonel North's case on the grounds of either the strong support that you expressed for him in 1988 or your criticism of the Iran-Contra congressional hearings." Thomas replied that he "didn't feel that I was in any way ... anything other than impartial in considering" the case, and the matter received little further attention.

Thomas' ruling throwing out a $10 million fine against Ralston Purina, which was founded by Sen. Danforth's family and in which the senator had a significant financial interest, drew a bit more scrutiny:

Clarence Thomas, President Bush's nominee for the Supreme Court, may have violated judicial ethics in a 1990 ruling involving his political mentor, Sen. John C. Danforth (R-Mo.), a court watchdog group charged Sunday.

Thomas, a federal appeals court judge, wrote an opinion throwing out a $10.4-million fine against Ralston-Purina Co., the St. Louis-based pet food concern founded by Danforth's grandfather, said Supreme Court Watch, a nonprofit group headquartered in New York.

Danforth owns at least $7.5 million in Ralston-Purina stock. His brothers, William and Donald, are on the firm's board of directors and control roughly 5% of its shares, the group said in a report issued in Washington.

As Missouri attorney general, Danforth in 1974 hired Thomas right out of law school as an aide. When Danforth went to the Senate in 1979, he hired Thomas as his legislative assistant. [Reuters, 7/22/91, via Nexis]

A July 22, 1991, AP report quoted two law professors who agreed that Thomas should have disclosed his relationship to Danforth and given the parties in the case an opportunity to seek his recusal:

Legal ethics experts were divided on the question.

Stephen Gillers, a New York University law professor who sits on the advisory board of Supreme Court Watch, said Thomas should have revealed his relationship to Danforth and given the parties in the case an opportunity to ask for his recusal.

"The test is one of appearances," Gillers said, not the strength of Thomas's financial or personal ties to Danforth and Ralston Purina.

Steven Lubet, a Northwestern University law professor, agreed that Thomas should have notified the parties of his connection to Danforth. [...]

"Many federal judges would have chosen not to participate under the circumstances, but the recent rulings under the disqualifications law probably did not require Judge Thomas to stay out of the case." Lubet said.

In his 2007 memoir, My Grandfather's Son, Thomas described the first time he met Danforth, who would go on to be a boss, mentor, and patron to Thomas — a description that makes clear that Thomas was acutely aware of Danforth's relationship to Ralston Purina from the moment they met:

"Clarence, there's plenty of room at the top," the attorney general said as we sat down to talk. That's easy for you to say, I thought, knowing that he was one of the heirs to the Ralston Purina fortune and had been elected attorney general of Missouri while he was still in his early thirties. Maybe there was room at the top for people like him, but so far I hadn't even managed to find it at the bottom. [p. 87, bold added]

Later in the same memoir, Thomas explained Danforth's intervention in a personal financial crisis:

 "[O]ur financial situation was no laughing matter, and it became deadly serious when a bank foreclosed on one of my student loans. [...] Nobody at the bank had time to listen to me, so I called the regional office of the Department of Health, Education, and Welfare, which supervised the student-loan program. The man to whom I spoke suggested that I try to get a consumer loan to repay the bank, but because of my low salary and lack of credit history, I assumed that no one would be willing to take a chance on me. Once again the attorney general saved the day: I mentioned my problem to him, and he referred me to the president of a local bank, a friendly small-town type who believed that character matters as much as collateral. He took Jack Danforth's word for my character and agreed to lend me the money. "Don't disappoint me," he said as I left his office. I didn't. [p. 102, bold added]

So Thomas was deeply indebted to Danforth, as someone who had been a boss and mentor and patron, and who had even helped Thomas secure a bank loan during a time of personal financial crisis. And he was well aware of Danforth's financial relationship to Ralston Purina. Yet he didn't notify the parties in the Purina case of the potential conflict, and wrote an opinion throwing out a $10 million judgment against the company.

Thomas' decision in the Purina case drew some media attention in the summer of 1991, including a USA Today article with a headline that rings true in hindsight: "History suggests Thomas ethics flap may bear watching." But the matter faded away after Danforth introduced Thomas to the Senate Judiciary Committee to kick off his confirmation hearings.

Thomas' relationship with Danforth, and Danforth's relationship with Purina, may not have required a recusal — even Professor Gillers, who criticized Thomas for failing to disclose the ties, told USA Today, "It's not a silver bullet" against the nominee. But given Thomas' poor record of financial disclosure as a Supreme Court justice, it seems clear that a more vigorous examination of his commitment to ethical requirements of impartiality and transparency during the nomination process would have been a good idea.