On All The Recent Federal Judicial Scandals

Justice Thomas, Judge Kacsmaryk, and Judge Newman, oh my!

Matthew Kacsmaryk, during his December 2017 confirmation hearing (screenshot via YouTube).

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What the heck is going on with the federal judiciary these days? Who is guarding the guardians?

The past few weeks have been pretty terrible for the reputations of federal courts and federal judges—which should concern everyone who cares about their critical role in our system of democratic self-governance. As noted by the Administrative Office of the U.S. Courts, “The ability of courts to fulfill their mission and perform their functions is based on the public’s trust and confidence in the judiciary,” which “earns that trust and confidence by faithfully performing its duties; adhering to ethical standards; and effectively carrying out internal oversight, review, and governance responsibilities.”

Recent events have raised serious questions about the judiciary’s continued ability to maintain the public’s trust. I’ll discuss controversies swirling around three judges: Justice Clarence Thomas, Judge Matthew Kacsmaryk (N.D. Tex.), and Judge Pauline Newman (Fed. Cir.).

Justice Clarence Thomas

Justice Clarence Thomas is under fire for omissions from his financial disclosures that allegedly violated the law, judicial ethics, or both. ProPublica broke two major stories, both involving Justice Thomas’s relationship with real-estate magnate and Republican megadonor Harlan Crow. The first story covered undisclosed luxury trips that Crow has bestowed upon Justice and Mrs. Thomas over the years, and the second story addressed Crow’s purchases (through corporate entities) of properties owned in part by Justice Thomas. The justice disclosed neither the trips nor the transactions.¹

Justice Thomas and his defenders argue that he wasn’t required to report the trips under the disclosure rules in effect at the time (which have since been tightened, and which the justice said he will comply with going forward). But on the real estate deals, which put $133,363 into the pockets of Justice Thomas and his family, there appears to be no justification for the non-disclosure—as even Justice Thomas recognizes. Here’s what Ariane de Vogue reported last night for CNN:

Justice Clarence Thomas intends to amend his financial disclosure forms to reflect a 2014 real estate deal he made with a GOP megadonor—an acknowledgment that the transaction should have been disclosed almost a decade ago, a source close to Thomas tells CNN.

The deal between Thomas and Harlan Crow, a Dallas real estate magnate and long-time friend of Thomas, involves the sale of three Georgia properties, including the home where Thomas’s mother, Leola Williams, 94, currently lives.

The source said Thomas has always filled out his forms with the help of aides, and that it was an oversight not to report the real estate transaction. Thomas believed he didn’t have to disclose because he lost money on the deal, according to the source.

For additional context and a partial defense of Justice Thomas, see James Taranto’s Wall Street Journal piece. But even Taranto’s essay acknowledges that the text of the financial-disclosure statute required reporting the deals with Crow. [UPDATE (4/21/2023, 2:03 p.m.): For more from Taranto in defense of Justice Thomas, see this piece, “Justice Clarence Thomas and the Plague of Bad Reporting”.]

This is far from the first time that Justice Thomas has had to revise his disclosures after the fact. In 2011, he amended several years of filings for failing to disclose almost $700,000 of income earned by his wife, Ginni Thomas—which he said was “inadvertently omitted due to a misunderstanding of the filing instructions.” He later had to amend his 2017 and 2018 filings to report reimbursements for travel expenses associated with teaching at three universities, after Fix the Court—a nonpartisan, nonprofit organization that has been doing important work on court reform for years—called him out.

This is pretty embarrassing stuff, especially given who Justice Thomas is and the role he occupies. As comedian Jordan Klepper quipped (because late-night hosts and comedians have been having a field day with L’Affaire Thomas), “In [Thomas’s] defense, the law is complicated—and he is only a Supreme Court justice.”

Justice Thomas also has an unfortunate habit of blaming others for his lapses. On the Crow-funded travel, he said that unidentified “colleagues” and “others” told him it wasn’t reportable. And now on the real estate deal, a source close to the justice told CNN that he has “always filled out his forms with the help of aides.”

Who exactly are these “aides,” and might it be time for him to hire new ones? I’m sure there are any number of superb lawyers and accountants who would be happy to help the justice file accurate and complete disclosures in the future. And Justice Thomas is clearly capable of hiring impressive people, as reflected in many of his former law clerks. (But see John Eastman.)

If and when Justice Thomas hires new and better lawyers and accountants, they should go back and audit all of his past disclosures, fixing any and all errors and omissions they notice. Democrats on the Senate Judiciary Committee have called for Chief Justice John Roberts to order an investigation of Justice Thomas. If there is going to be an investigation—which I would support, if for no other reason than repairing public confidence in the Court—Justice Thomas could make a show of good faith by conducting his own “self-investigation” in advance. Whatever his team unearths could then be turned over to the investigators from the Court, giving them a head start. It would be analogous to a company conducting its own internal investigation into allegations of possible misconduct, which the DOJ looks upon favorably if it shows up on the scene later.

In a speech delivered this afternoon to the Dallas Lawyers Chapter of the Federalist Society, Judge James Ho (5th Cir.), a former Thomas clerk, offered a less technical, more big-picture defense of Justice Thomas. In addition to extolling Justice Thomas’s virtues as a jurist and a person, as the justice’s defenders have done repeatedly over the past few weeks, Judge Ho argued that the ethics allegations against Justice Thomas have been weaponized for political ends. (I’ve reprinted the entire speech, which is not long and is worth your time, at the end of this post.)

I disagree with Judge Ho on any number of topics, including but not limited to his boycotts of Yale and Stanford when it comes to law clerk hiring, but I do agree with some points in his latest remarks:

• It’s fair to say that some of Justice Thomas’s critics on the left are motivated less by a deep commitment to ethics and more by a desire to score political points. (Of course, I have no doubt that the right would lose its mind if we learned that Justice Sonia Sotomayor was livin’ la vida loca with George Soros.)

• When it comes to judges, “we should apply the highest ethical standards, not hypocritical double standards, and it “disserves the cause when we allow ethics to be weaponized to punish disfavored viewpoints.” (Thomas critics would argue that there is a double standard, but it benefits conservatives; Justice Thomas will surely keep his seat on the Court, even though Justice Abe Fortas, a Democratic appointee, was forced off the Court for arguably less.)

• The issues at hand transcend Justice Thomas, since “[m]any Supreme Court Justices have enjoyed many trips hosted by individuals and organizations that may not have a direct interest in a pending case, but no doubt care deeply about certain cases.” And a “good-faith discussion about how to strengthen ethics in government” would be more productive than continuing to pillory Thomas.

Judge Ho’s source for that last point is this excellent New York Times staff editorial, “The Ethics of Nine of the Most Powerful People in America,” which represents a fine starting point for that good-faith discussion of how to improve SCOTUS ethics. After describing how other justices, from Justice Scalia on the right to Justices Ginsburg and Breyer on the left, accepted hundreds of free or subsidized junkets from wealthy benefactors, the editorial makes this point (emphasis added):

The problem with these kinds of favors and gifts—regardless of whether they are disclosed—is that they badly damage the court’s reputation as the ultimate fair arbiter of the law…. [W]hen the court’s members accept benefits from the nation’s moneyed elite, no matter their politics, it sends a signal that ordinary Americans without those resources are at a disadvantage.

Amen. Whether or not there was any technical impropriety with Harlan Crow funding travel for the Thomases—since Crow didn’t have any cases before the Court himself, and it’s probably true that none of Crow’s largesse changed a single vote of the archconservative Justice Thomas—that’s not the end of the analysis. The appearance of impropriety, what Sarah Isgur of Advisory Opinions refers to as the “ick factor,” can also seriously harm the credibility of the courts. And I think Judge Ho underemphasizes or elides much of this as applied to Justice Thomas (although I realize you can’t expect an ex-clerk to criticize their former boss that harshly).

The Times editorial identifies possible reforms. It cites a bill introduced by Senator Sheldon Whitehouse (D-R.I.), chairman of the Senate Judiciary courts subcommittee, which would require the Court to adopt disclosure rules as robust as those that apply to Congress, as well as greater transparency surrounding recusals, which would be welcome. But it also argues that disclosure isn’t enough by itself (and I’m tentatively inclined to agree, although I’m open to arguments to the contrary):

Justices have to stop accepting expensive gifts in the first place. The Supreme Court could eliminate any impression that it can be seduced by oligarchical wealth by adopting the kinds of gift limits that apply to members of Congress and other federal employees. Senators cannot accept gifts (including hospitality) worth more than $50, or more than $100 from a single source in a year. They need advance permission from an ethics committee before accepting gifts from personal friends worth more than $250. Free lodging can be accepted in someone’s personal residence if the owner is not a lobbyist. House rules are similar.

Would these rules make it less fun to serve on SCOTUS? Absolutely; who doesn’t like flying private? And I suppose one could argue that they would make service on the Court less appealing. But even if all these strictures were imposed, plus all the “fixes” advocated by Fix the Court, there would still be no shortage of brilliant lawyers willing to serve on the Court. And if junkets play a significant role in drawing someone to One First Street, that’s probably not someone we’d want on the bench.

Judge Matthew Kacsmaryk

Last week, the Washington Post published an article reporting that back when he worked for the conservative First Liberty Institute, Matthew Kacsmaryk—now in the headlines for his abortion-pill ruling—pulled his name off a draft law-review article discussing controversial issues like transgender rights and abortion. He acted prior to the article’s publication, so he didn’t list the article on his Senate Judiciary Committee questionnaire, which required him to list all “books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited.” Per the Post, “the circumstances surrounding the article’s authorship raise questions about whether a judicial nominee was seeking to duck scrutiny from a process designed to ensure that judges are prepared to interpret the law without personal bias.”

I find this to be an easier case than the Clarence Thomas controversies. Nominees are required to list their published work; until the article was published with Kacsmaryk’s byline, it wasn’t subject to disclosure. Almost any freelance journalist can tell you a story about how they were hired to write some piece, they were well into (or even done with) the editing process, and then the piece got spiked by the editor. The journalist might have been paid a “kill fee,” but they didn’t get a “publication” out of it.

See also Judge Ho’s discussion of L’Affaire Kacsmaryk in his Dallas FedSoc speech, reprinted below. On this issue, I think he’s completely correct.

Judge Pauline Newman

(Actually, maybe the heading of this section should be “Chief Judge Kimberly Moore” rather than “Judge Pauline Newman,” because it focuses more on problematic conduct by Chief Judge Moore rather than by Judge Newman.)

In last weekend’s Judicial Notice, I wrote about the disability/misconduct complaint that Chief Judge Moore of the Federal Circuit filed against Judge Newman. The gist of the complaint is that Judge Newman, who is 95 and still an active-status judge, “may suffer from impairment of cognitive abilities (i.e., attention, focus, confusion and memory) that render [her] unable to function effectively in discharging case-related and administrative duties.”

The Judicial Council of the Federal Circuit, which is tasked with handling the complaint in the first instance, posted a public statement about the investigation into Judge Newman, after it was disclosed by news reports. The statement links to two orders related to the investigation, a March 24 order, which contains the allegations against Judge Newman, and an April 13 order, which outlines the process for handling the complaint. The April 13 order reveals that the complaint against Judge Newman will be investigated by “a special committee composed of Chief Judge Moore, Judge [and former chief judge Sharon] Prost, and Judge [Richard] Taranto.”

Hold on a sec… wasn’t the complaint against Judge Newman filed by Chief Judge Moore? Is Chief Judge Moore going to be in charge of reviewing her own complaint? And as someone involved in the events at issue—based on the statement of facts in the March 24 order, Chief Judge Moore is a colleague who has observed and been affected by Judge Newman’s alleged slowness, as well as one of multiple judges who talked to Judge Newman about her problems—isn’t Chief Judge Moore a fact witness too? This doesn’t look so hot. Cf. Justice Neil Gorsuch’s dissent from the denial of certiorari in Donziger v. United States (noting the obvious due-process problem with the accuser serving as the decisionmaker).

I’m not the first to notice this… incongruity. Professor Arthur Hellman brought it up to Bloomberg Law, raising the possibility of the complaint against Judge Newman being transferred to the judicial council of a different circuit:

There continues to be uncertainty among practitioners and academics on what to expect next, given the uncharted territory that the complaint ventures into.

Hellman said a transfer of the case to another federal appeals court is still possible. Typically, though, a chief judge would request a transfer before an investigative committee is formed.

“If there’s a feeling among Newman’s supporters that there is bad blood between Moore and Newman, that could be a reason to ask for a transfer,” he said.

The purpose of the complaint process, he continued, “is to get a result more likely to be accepted by all sides, so internal tensions would be a good reason to request a transfer.”

So did Fix the Court (FTC), even though it actually supports Chief Judge Moore’s call for Judge Newman to step down:

[A] chief judge, both when they do and do not identify a complaint against a fellow judge under the Judicial Conduct and Disability Act, should not then be placed on the special committee that’s investigating the conduct of the judge. (Yes, it’s in the statute and regulations, so it’s not on Chief Judge Moore here; it’s simply a poorly thought out rule.)

This would be akin to a judge hearing a case on the district court level and then hearing the same case on appeal after said judge is elevated to the circuit court. It shouldn’t happen, and there should be a fix to allow for a different judge—say, the next in line, like an “acting chief judge”—to sit on the special committee.

But the Rules for Judicial-Conduct and Judicial-Disability Proceedings, linked to by FTC, do provide a possible solution:

In exceptional circumstances, a chief judge or a judicial council may ask the Chief Justice to transfer a proceeding based on a complaint identified under Rule 5 or filed under Rule 6 to the judicial council of another circuit. The request for a transfer may be made at any stage of the proceeding before a reference to the Judicial Conference under Rule 20(b)(1)(C) or 20(b)(2) or a petition for review is filed under Rule 22. Upon receiving such a request, the Chief Justice may refuse the request or select the transferee judicial council, which may then exercise the powers of a judicial council under these Rules.

The complaint against Judge Newman was filed under Rule 5, and no reference to the Judicial Conference of the United States, which is charged with “review[ing] circuit council judicial conduct and disability orders,” has yet been made. So asking Chief Justice John Roberts to transfer the proceeding to the judicial council of another circuit is still possible. And if anything rises to the level of “exceptional circumstances,” this bizarre standoff between Chief Judge Moore and Judge Newman would qualify.

Some of you might recall how when a complaint was made against Chief Judge Bill Pryor (11th Cir.) related to his hiring of a law clerk, an acting chief judge stepped into Chief Judge Pryor’s robes for purposes of handling the complaint. This judge then requested that the proceeding be transferred—and it was transferred, to the Second Circuit Judicial Council. If that situation constituted “exceptional circumstances” simply because it involved the chief judge, this seems like an even stronger case.

I find it hard to imagine how Chief Judge Moore could conduct a fair and impartial investigation of her own complaint against a colleague. But even if she somehow could, a transfer would still be warranted, to give the public confidence in the fairness of the outcome. If there’s a lesson to be learned from the recent controversies surrounding Justice Thomas, it’s this: when it comes to the administration of justice, appearances matter.

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REMARKS BY JUDGE JAMES HO TO THE FEDERALIST SOCIETY, DALLAS LAWYERS CHAPTER, APRIL 18, 2023

Thanks so much to the Federalist Society for the opportunity to speak with you all today. I’m here to briefly respond to recent events concerning the issue of ethics in the judiciary. But I’ll begin by admitting my personal bias in these matters.

I had the profound honor of clerking for Justice Thomas from 2005 to 2006. But well before that, I had long concluded that Justice Thomas is one of the most principled and fearless individuals to have ever served in the judiciary. He is a role model—and one of the most inspiring and fascinating Americans alive.

Harlan Crow is a respected business leader, a devoted patriot, and a generous philanthropist. He regularly opens his properties to civic organizations, scholars, and public officials. In fact, he opened his home to me and my family, so that Justice Thomas could swear me in on my first day on the bench. For that, I am eternally grateful. I’m deeply honored to know them both.

* * *

Public service is a public trust. Citizens deserve a government they can believe in. So I warmly welcome any good-faith discussion about how to strengthen ethics in government.

But we should apply the highest ethical standards, not hypocritical double standards. It disserves the cause when we allow ethics to be weaponized to punish disfavored viewpoints. No one respects a rigged game.

Unfortunately, I’ve seen how ethical principles can be contorted and misused—not to serve the public good, but to further a political objective. I’ll begin with a personal example.

Last year, I was accused of being unethical for publicly stating my concerns with selecting judges based on race. Four other federal judges testified at the very same hearing where I first spoke. Yet none of them were criticized for being unethical. I can only presume that’s because the ethics police agreed with them and disagreed with me.

Had I simply parroted the views favored by cultural elites, I have no doubt that these folks would not have accused me of being unethical. But that’s not ethics—that’s politics.

* * *

In 2021, The Wall Street Journal alleged that over a hundred federal judges had violated the law by failing to recuse in cases in which they had a financial interest.

Notably, the Journal did not accuse all of those judges of actual corruption—of actually deciding cases to further their own interests. That’s an important distinction to draw. Because there’s a big difference between actual corruption and the appearance of corruption.

That’s not to say that appearances aren’t important, too. It’s vital that citizens have confidence in their judiciary. As judges, we don’t have the purse or the sword. All we have is our credibility with the American people.

But we should recognize what the Journal did and did not conclude. It showed that judges are imperfect human beings, like everyone else. But I don’t recall anyone calling for all of these judges to be impeached or punished.

* * *

Many Supreme Court Justices have enjoyed many trips hosted by individuals and organizations that may not have a direct interest in a pending case, but no doubt care deeply about certain cases, as surely every American does. Yet no one has said that that’s enough to trigger recusal, as was the case in the Wall Street Journal article.

If we want to strengthen disclosure requirements, we can certainly do that. And if we want to categorically prohibit judges from accepting trips from others, we can do that as well.

But whatever we do, I think it would be inaccurate to automatically presume some sort of illicit motive. Many people genuinely enjoy spending time with—and learning from—interesting people who do interesting work. Judges aren’t the only ones invited on trips. Scholars and journalists are, too. I was recently invited to Florida to speak to a respected nonpartisan organization—along with a number of distinguished law professors and journalists. Was everyone there to gain corrupt influence with members of the academy and the media? Surely not. And for the same reason, we shouldn’t assume illicit motive with every Justice who accepts a trip.

And we certainly shouldn’t assume illicit motive just because we happen to disfavor one’s views. Again, that’s not ethics—that’s politics. And it’s part of the same problem we’re seeing in law schools across America. We’re increasingly teaching people to presume bad faith and malicious intention from anyone we disagree with.

* * *

People are doing the same thing to my friend Judge Matt Kacsmaryk.

To understand, you have to remember this: The Justice Department instructs every potential judicial nominee to stop making any public statements of any kind.

When my own nomination was imminent, a reporter wanted to talk to me about a big case that I had just won for a client. He wanted to give me some “Litigator of the Week” recognition, but needed a quote from me before he could do it. The Justice Department instructed me not to talk to the reporter. So I dutifully obeyed. I have no doubt Judge Kacsmaryk was doing exactly the same thing—following instructions.

And there’s nothing wrong with those instructions. Consider this analogy: Imagine that someone was thinking about becoming general counsel of a controversial political group. But they never did it, because they were nominated for a judgeship. Nominees aren’t required to disclose future jobs that they don’t end up taking. Nor are they required to disclose future articles that they don’t end up authoring.

I presume that Judge Kacsmaryk would not be required to disclose the article if he had simply withdrawn it altogether. After all, a document isn’t final until it’s final. And if it had been a solo effort, I imagine that he would’ve withdrawn it.

But this was a joint effort. And given that it was a joint effort, I see no reason why Judge Kacsmaryk couldn’t just let his co-authors proceed without him. I don’t see why all their efforts had to go to waste. I can imagine Judge Kacsmaryk just felt bad for his colleagues.

There’s nothing wrong or unusual about lawyers who work together on a document, knowing full well that some of them may not end up signing and getting public credit for the product. That’s what law clerks do for judges. How many law firm associates have ever contributed to a document that they didn’t end up signing—such as a motion or brief or article or speech or client alert? My guess: All of them.

This is such a common phenomenon that there’s a name for it. It’s called ghostwriting. Now, if the Senate wants to amend its forms to require disclosure of all ghostwritten material, it certainly can do so. But that would be new. Former Senate lawyer Stephen Breyer was not required to disclose everything he ghostwrote for Senator Ted Kennedy.

* * *

I’m all for discussing ways to strengthen ethics in government. But we should do it in good faith. And our discussions should be proportionate to the facts.

During the 2016 Presidential election, Justice Ginsburg made a series of highly disparaging remarks about Donald Trump. She called him a “faker.” She criticized the media for not looking into his tax returns. And she said that “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president.”

A few years earlier, she told the New York Times that, “at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

Suffice it to say that these are highly unusual statements for a sitting Supreme Court justice. Yet she did not recuse herself in countless cases involving either abortion or President Trump.

Even so, President Trump later described Justice Ginsburg this way: She led an amazing life and was an amazing woman, whether you agreed with her or not.

Well, here’s what I would say about Justice Thomas: He is an amazing man, and his life exemplifies the American Dream, whether you agree with him or not.

By all means, let’s talk about what we can do as a country to strengthen ethics in our government. But we can do it without the double standards. We can do it consistently, not selectively. And we can do it without tearing down an honorable man like Justice Thomas. Thank you.

1. The Washington Post tried to join in the fun with its own story about another apparent error in the Thomas disclosures: he reported income from an LLC under its former name as a partnership, quelle horreur. The Post itself admitted that this “might be dismissed as a paperwork error”—because, well, it probably was—and the story struck me as the Post feeling bad about ProPublica eating its lunch and trying to play catch-up.

Yes, it shows that Justice Thomas is pretty sloppy when it comes to his financial disclosures—but we’ve known that for years. As usual, I agree with David French and Sarah Isgur of Advisory Opinions, who call this a “non-story.” They further argue that it actually gives partisan defenders of Justice Thomas fodder for discrediting the real stories—including the failure to disclose the real-estate deals with Crow, which most fair-minded observers would agree is serious and troubling.

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