When a sports team continues to be awful through the tenure of different players, coaches and general managers, it becomes apparent that the real problem is the owner. When Justice Thomas has over a decade of major ethical transgressions on reporting income, it is clear that the real problem is Justice Thomas, not some unnamed aide or accountant.
There is a double standard here, and it goes like this:
1. Justice Thomas receives well-deserved scrutiny or criticism.
2. Justice Thomas decries the scrutiny or criticism as a "high tech lynching" or other loaded term.
3. Republicans fall in line behind Justice Thomas, without any compunction about the actual awful facts.
As you noted in the Article, Justice Fortas was forced from the Supreme Court (first denied becoming Chief Justice and then forced to resign) for far less than Justice Thomas has ADMITTED to. Justice Thomas "sold" his mother's house to Harlan Crow for $113k (well above the price paid for neighboring property) and Justice Thomas's mother has continued to live in the house RENT FREE for a decade.
And, it is not just the "ick" factor. At a minimum, the largess that Harlan Crow has bestowed on Justice Thomas makes it clear to aspiring Federalist judicial candidates that your financial needs will be met, so long as you remain a "true believer."
If Justice Thomas had any honor or sense of shame, he would resign. Since I do not believe he has either, I will not hold my breath.
What heightens the problem is that one of the political parties believes that there should be two sets of rules, one for their team and one for the other team. If they decided that, whether it's Thomas or Elena Kagan, such criticism is inappropriate and we're going to let Supreme Court justices act in this manner, well, that sucks but at least it's the same no matter what you believe. But we all know that, when someone finds out if Sonia Sotomayor didn't disclose $10,000 for speaking before a group that once submitted an amicus brief, all hell would break loose in the GOP. Just like a lame duck president cannot nominate a justice unless the lame duck president is a Republican. A democracy cannot function if we're not all playing by the same rules and operating in the same framework, but one party these days is OK trying to overturn an election, is OK with the president of the United States standing next to the leader of Russia talking about how he doesn't trust our intelligence apparatus, etc.
Apr 18, 2023·edited Apr 18, 2023Liked by David Lat
It''s disappointing, David, that you make it seem like James Ho is the voice of the judiciary. Putting aside what one thinks of him as a judge, there's no denying that his views are near one edge of the spectrum. He doesn't speak for anyone but himself, and he talks too much for a federal judge. One reason you don't hear much from other federal judges is that principles of judicial decorum cause federal judges to be reticent. Ho doesn't care. That's not something to glorify and he shouldn't be elevated because he can't shut his mouth.
As for Kacsmaryk, it seems pretty obvious that there's a lot more to the story than what Judge Ho wants to discuss. It's not that he failed to disclose something he didn't "publish" in response to a question that asked him to disclose what he has published. It's that he removed his name from an incendiary piece of pablum, which he either wrote or co-wrote, that he knew would cause him a problem if he was seeking a judgeship or was a judge. He -- like our other judge friends who testified to Congress about how Roe was "settled law", until it wasn't the minute they had the chance to unsettle it -- was concealing the truth. He was being less than forthright. Which is suboptimal for a judge. And this less-than-forthrightness then reveals itself in his abortion pill decision, which is one of the most offensive pieces of bad faith judicial activist nonsense that disregards basic rules of jurisprudence that I've ever read.
I should clarify that I don’t think Judge Ho is the voice of the judiciary. As a former Thomas clerk, he is probably NOT the typical judge on the topic of Thomas. But in the world I cover, it’s newsworthy when a federal judge addresses a topic in the news—and as you note, Judge Ho is less shy than many others about current events.
On Judge Kacsmaryk, as in so many other things, we should ask: how would we feel if the shoe was on the other political foot? Imagine a progressive hero of the federal bench. As a lawyer, they were working on a controversial, pro-choice op-ed, they learned they were in the running for a judgeship, they withdrew the op-ed, and they went on to become a great progressive judge.
The op-ed surfaces years later, and conservatives who hate that judge’s rulings say the judge hid the ball from the Senate. How would we feel? I’d feel the same: no harm (publication), no foul (disclosure event).
I think Judge Kacsmaryk‘s mifepristone decision is very wrong. But my views of his jurisprudence are not relevant to my assessment of the ethics issue (or non-issue).
Apr 18, 2023·edited Apr 18, 2023Liked by David Lat
I think you (and Ho) are both mischaracterizing the Kacsmaryk situation in a way that matters.
Kacsmaryk did not merely withdraw an article he did not want to publish. (I agree with you that if that was the case, this would not be an ethical breach). What he did was replace his name as author with 2 other people. The article was published (and is still accessible today).
Ho describes this as Kacsmaryk removing his own name and allowing his co-authors to go ahead and publish the work. That's in conflict to the WaPo reporting, which says he was the sole author before removing his name and replacing with the 2 authors on the publication now.
Assuming the Post has it right, that is a breach of academic integrity. Exactly what type of breach it was is less clear. Who actually wrote the paper? Kacsmaryk alone (as he originally represented to the journal) or a collaboration between himself and the 2 now listed as authors? If the former, that is plagiarism. If the latter, then what type of collaboration was it - did all three contribute enough to be worthy of authorship? If so, then Kacsmaryk's original plan was to deprive his coauthors of authorship they deserved. If not, then his removal of his name doesn't suddenly justify their names on the paper.
Normally when academic work is published, authors sign a statement that they have contriuted sufficiently to the work to desrve authorship, etc.
People like you (and Ho for that matter) are... not shy about criticizing the failings you see in academia. And that's fine. But here, you (and Ho) are dismissing a different sort of problem in academia and it just makes me wonder (especially with Ho) whether those critiques are sincere or merely political.
If I was going to be "political," I would have been critical of Judge Kacsmaryk. I don't like his jurisprudence—at least based on his mifepristone ruling, which looks to me like conservative judicial activism (although I'm happy to hear the other side)—and I suspect I don't like his politics and policy views. He's a conservative Christian, and I'm a member of the LGBTQ+ community who supports marriage equality, believes that abortion should be legal (we can discuss specific regulation), etc.
My guess is that your take on the ethics question lines up with your political views (although feel free to say otherwise if I'm wrong). My take on the ethics question goes AGAINST my political views.
So I don't agree with your take here. As Judge Ho points out, ghostwriting is quite common, and I see it all the time—e.g., statements, speeches, and op-eds issued under the names of high-profile people who didn't write them. As long as the person adopts the writing in question—i.e., reviews it, agrees with it, and consents to have it go out under their own name—there's no issue. And it's not plagiarism, since the ghostwriter consented to have their words go out under the name of the bylined person.
If we hear from the folks whose bylines did appear on the published article that something objectionable happened here, then I'm happy to revisit my view. But based on the Post article, it looks like this was a situation where a piece was ghostwritten for an organization, First Liberty, and they internally decided whose names would appear on the article—as was their right. The fact that Kacsmaryk might have pulled the laboring oar is really of no consequence, as long as everyone at First Liberty consented to the final allocation of bylines.
I apologize for my use of "political." I didn't it as you took it (but reading my post again it was a fair interpretation). It just struck me as odd that you seem to have great concerns about some issues that relate to academic integrity (campus speech) while having no concern about other issues that also do (authorship policy).
I should , say, I have no experience whatsoever in law publishing. In the sciences, where I am more familiar, authorship requirements and rights don't line up precisely with "owner of the work." Generally speaking, there is a list of requirements one must meet to be an author and all authors must attest that they meet those criteria. Non author contributors must also be acknowledged. When the work is by a company, that company owns the rights to the work, but they aren't free to just swap out author names willy nilly. It's clear that process was not followed by Judge K, although perhaps it is different in law than the sciences.
My politics are liberal, as you inferred, but I would be outraged if Justices Jackson, Sotomayor, or Kagan had the types of financial relationships that Thomas has (and hides). I would not want to see an important liberal ruling handed down in the manner of Judge K's mifepristone opinion. No reasonable reviewer could look at Judge K's opinion and look at his obvious preexisting views and not think he was just trying to write his beliefs into law. I don't think it would help the liberal cause to have liberal judges doing the same thing.
I think Obergfell is one of the best decsions to come from SCOTUS this century, but I think its moral force would have been weakened greatly if it subesquently emerged that Justice Kennedy had a Thomas Crow type relationship with a billionaire pro-LGBTQ activist.
Very interesting re: authorship in the sciences, which seems to take the concept much more seriously. Thanks for sharing that!
It's quite different in law—which I guess shouldn't be surprising, considering that so much of our "law" is ghostwritten by twenty-something clerks. And I'm not questioning the legitimacy of that process. The judges are making the final calls, and I think clerkly influence is sometimes greatly exaggerated. But it's definitely true that in the law, our concept of "authorship" is much more loose than what you describe in the sciences.
For another example, consider pretty much any article "written" by a Biglaw partner for an industry publication like Law360, an ALM affiliate, etc. It's frequently the case that even if the partner gets the byline or is the lead author, all the substantive work has been done by an associate—who sometimes shares the byline, sometimes gets recognized in a footnote, and sometimes goes entirely unmentioned.
David - I think that you are missing the point here. The reason why judicial nominees are asked to provide a list of their published articles is to provide insight to their judicial philosophy. Here, according to the Washington Post's reporting, Mr. Kacsmaryk (1) wrote an article that he knew was going to be published, (2) realized that it would be a problem if he were ever a judicial nomineee, (3) got two people to serve as "fronts" for the article, (4) knew that the article that he wrote was published, and (5) failed to disclose that he wrote the article, in response to a question on his judicial questionnaire asking him to disclose all articles that he wrote that were published.
To be clear, this is:
* Not a situation where Mr. Kacsmaryk wrote an article that was shelved and later published by other authors who used his work as a template;
*Not a situation where Mr. Kacsmaryk was the name scheduled to be placed on an article written by a third party, where his name was replaced by someone else taking credit for work by a ghost writer;
* Not a situation where Mr. Kacsmaryk wrote an article as a ghost writer that was always intended to be published under another person's name, such that it might not reflect his views.
Rather, this was a self-aware attempt to become a "stealth" nominee on this issue. As a progressive legal activist, I would be upset by Mr. Kacsmaryk's actions, even if undertaken by someone that I was ideologically predisposed to support.
In these circumstances, the fact that the fronts were happy to serve as fronts on an article that they did not write, because they wanted to help Mr. Kacsmaryk hide that he was the true author, while injecting his ideas into the public discourse does NOT have any relevance to whether Mr. Kacsmaryk acted unethically.
NB. I am using the term "Mr. Kacsmaryk" to distinguish that these were actions that he took before he was nominated, let alone confirmed.
Your remark about how people would feel if the shoe was on the other foot is one of the huge problems, IMHO, in political journalism these days. It's a type of "both sides-ism", as It assumes that many people are hypocrites like many modern day Republicans in politics. I know that I'm not. I don't believe that many people are. Republicans in politics have become a bunch of patent hypocrites (and liars). When Al Franken was accused of whatever he was accused of, Dems forced him to resign. When Dems perceived Ilan Omar has being antisemtic, they censured her. Paul Gosar? MTG? Not so much. Still in Congress.
Republicans barely make a peep (except, gulp, credit to Lindsey Graham for his passive-aggressive criticism of MTG praising the recent leaks). So, if the shoe was on the other foot, I'd suggest that the pro-choice/liberal/etc. federal judge was being dishonest, hiding something, wrote a terrible decision even though perhaps its ultimate holding was something that I favored, would feel that the person never should have been a judge, and would hope that the person could be removed, same as I feel about our friend in Texas. And I believe that more Democrats in politics would do the same than would defend him/her.
You throw a curve ball in there when you refer to him/her becoming "a great progressive judge". To me, as a former federal clerk who was exposed to what I consider a lot of "great judges", a "great judge" is someone who respects things like stare decisis and renders decisions notwithstanding his/her personal preference. Kacsmaryk has already shown that he's not that. There are a lot of words that can be used to describe his mifepristone decision. "Unethical" is not inappropriate IMHO. So I think it's all relevant. If Kacsmaryk proved to be a great judge -- whether I agree or disagree with his ultimate determinations is not relevant -- and this stuff about the article came out years later, after he has proven to be a great judge, then it's water under the bridge. It's not a matter of looking at this stuff in a vacuum. Consider the total package.
I do appreciate you taking the time to respond to me. I am a very satisfied subscriber -- although I don't walk in lockstep with you all that often, it is nice to read differing opinions that are expressed in an intelligent and credible manner.
Thank you for the kind words—I’m glad our disagreements have not made you unsubscribe!
I also agree with you that Democrats are less hypocritical in general than Republicans. This might hurt Democrats because they are more focused on principle and less focused on winning at all costs. The Franken situation you mention is a good example.
(For the record, I’m registered with neither political party, which is why I speak of the parties in the third person.)
Any thoughts on Justice Thomas' involvement in the Ginger Partnership? The defunct company he listed on his returns for years after it was shuttered?
I'm with the comedians here I think. If filing returns is too complicated for Justice Thomas (as he's shown all those times before, when newspapers had to remind him of his obligations) he probably isn't suited for our highest court. This is a pattern, not a one-off. I feel no obligation to extend the presumption of good faith to someone who's done the exact same thing before ($680k on spousal income is reportable)
Ah, missed that. I'm likely not satisfied until someone independent of the court reviews Justice Thomas' financing at this point. He's had too many convenient "misunderstandings" for anyone to trust his filings.
One potential issue—which reasonable minds can disagree on—is the separation of powers. Sometimes Chief Justice Roberts suggests that having another branch investigate the judiciary implicates the separation of powers. I'm guessing that might be why the Democrats on the Senate Judiciary Committee began by asking the Chief to order an investigation (but if he doesn't, maybe the SJC will or should).
Scholars disagree on how real or legitimate the separation-of-powers concern is:
There is a real separation of powers issue here, but nobody likes the way to dot the "i"s and cross the "t"s. It is undeniable that the House can conduct hearings into impeachment, and use subpoena power in support of those hearings. If I were a House Democrat, I would strongly consider (a) drafting a bill to convene an impeachment inquiry into Justice Thomas' financial misstatements, and (since the bill will not be taken up by the Speaker) (b) filing a discharge petition after 30 days to force each Republican in the House to decide which side they want to be on.
Or, Chief Justice Roberts could just order a Supreme Court investigation.
Or, Justice Thomas could voluntarily submit to an arms-length investigation.
Or, if he had any honor or sense of shame, Justice Thomas could just resign.
I understand the separation of powers concern but believe that it's fictional and not legitimate. Each branch of govt has some oversight-type ability over the other two. Allowing the judiciary to run rampant pursuant its own rules, without oversight, eliminates the "checks" from "checks and balances".
There has been some talk of Congress using its “power of the purse” to get the judiciary to improve on certain fronts. This is a strategy that could be harder to resist on separation-of-powers grounds, since it would simply be Congress exercising its constitutionally recognized power to appropriate money.
Thank you for referencing the Taranto article in the WSJ. It seems from that article that Pro Publica was sloppy in its reporting of the judge’s disclosure by not referencing the complexities and contradictory elements in the disclosure documents and the disclosure guidelines. I however would not look to Congress for ethical guidance.
David, I must say I find this discussion both humorous and sad.
It is funny to watch how conservatives justify what Justice Thomas did. They not just twist themselves into a pretzel; they break the pretzel.
It is sad you fall into the trap of "well, what if the shoe was on the other foot?' If a liberal justice had done the same as Thomas, she would be gone by now. She would have had the decency to resign. But, oddly enough, we can find no example of a liberal justice engaging in such conduct, unless you want to go back to the Fortas affair nearly 55 years go. They just don't do this kind of thing. There is a special combination of arrogance and stupidity in the consertative judicial mind that encourages this conduct.
As for Judge K, his conduct is so outgageous as to be laughable. He thought he could get away with his concealment; sadly, he did.
I gave up on worshipping federal judges long ago. We cannot expect them to be saints, as they are only human (and nothing more). But we can expect them to hide their arrogance and not be outright stupid.
When a sports team continues to be awful through the tenure of different players, coaches and general managers, it becomes apparent that the real problem is the owner. When Justice Thomas has over a decade of major ethical transgressions on reporting income, it is clear that the real problem is Justice Thomas, not some unnamed aide or accountant.
There is a double standard here, and it goes like this:
1. Justice Thomas receives well-deserved scrutiny or criticism.
2. Justice Thomas decries the scrutiny or criticism as a "high tech lynching" or other loaded term.
3. Republicans fall in line behind Justice Thomas, without any compunction about the actual awful facts.
As you noted in the Article, Justice Fortas was forced from the Supreme Court (first denied becoming Chief Justice and then forced to resign) for far less than Justice Thomas has ADMITTED to. Justice Thomas "sold" his mother's house to Harlan Crow for $113k (well above the price paid for neighboring property) and Justice Thomas's mother has continued to live in the house RENT FREE for a decade.
And, it is not just the "ick" factor. At a minimum, the largess that Harlan Crow has bestowed on Justice Thomas makes it clear to aspiring Federalist judicial candidates that your financial needs will be met, so long as you remain a "true believer."
If Justice Thomas had any honor or sense of shame, he would resign. Since I do not believe he has either, I will not hold my breath.
What heightens the problem is that one of the political parties believes that there should be two sets of rules, one for their team and one for the other team. If they decided that, whether it's Thomas or Elena Kagan, such criticism is inappropriate and we're going to let Supreme Court justices act in this manner, well, that sucks but at least it's the same no matter what you believe. But we all know that, when someone finds out if Sonia Sotomayor didn't disclose $10,000 for speaking before a group that once submitted an amicus brief, all hell would break loose in the GOP. Just like a lame duck president cannot nominate a justice unless the lame duck president is a Republican. A democracy cannot function if we're not all playing by the same rules and operating in the same framework, but one party these days is OK trying to overturn an election, is OK with the president of the United States standing next to the leader of Russia talking about how he doesn't trust our intelligence apparatus, etc.
It''s disappointing, David, that you make it seem like James Ho is the voice of the judiciary. Putting aside what one thinks of him as a judge, there's no denying that his views are near one edge of the spectrum. He doesn't speak for anyone but himself, and he talks too much for a federal judge. One reason you don't hear much from other federal judges is that principles of judicial decorum cause federal judges to be reticent. Ho doesn't care. That's not something to glorify and he shouldn't be elevated because he can't shut his mouth.
As for Kacsmaryk, it seems pretty obvious that there's a lot more to the story than what Judge Ho wants to discuss. It's not that he failed to disclose something he didn't "publish" in response to a question that asked him to disclose what he has published. It's that he removed his name from an incendiary piece of pablum, which he either wrote or co-wrote, that he knew would cause him a problem if he was seeking a judgeship or was a judge. He -- like our other judge friends who testified to Congress about how Roe was "settled law", until it wasn't the minute they had the chance to unsettle it -- was concealing the truth. He was being less than forthright. Which is suboptimal for a judge. And this less-than-forthrightness then reveals itself in his abortion pill decision, which is one of the most offensive pieces of bad faith judicial activist nonsense that disregards basic rules of jurisprudence that I've ever read.
I should clarify that I don’t think Judge Ho is the voice of the judiciary. As a former Thomas clerk, he is probably NOT the typical judge on the topic of Thomas. But in the world I cover, it’s newsworthy when a federal judge addresses a topic in the news—and as you note, Judge Ho is less shy than many others about current events.
On Judge Kacsmaryk, as in so many other things, we should ask: how would we feel if the shoe was on the other political foot? Imagine a progressive hero of the federal bench. As a lawyer, they were working on a controversial, pro-choice op-ed, they learned they were in the running for a judgeship, they withdrew the op-ed, and they went on to become a great progressive judge.
The op-ed surfaces years later, and conservatives who hate that judge’s rulings say the judge hid the ball from the Senate. How would we feel? I’d feel the same: no harm (publication), no foul (disclosure event).
I think Judge Kacsmaryk‘s mifepristone decision is very wrong. But my views of his jurisprudence are not relevant to my assessment of the ethics issue (or non-issue).
I think you (and Ho) are both mischaracterizing the Kacsmaryk situation in a way that matters.
Kacsmaryk did not merely withdraw an article he did not want to publish. (I agree with you that if that was the case, this would not be an ethical breach). What he did was replace his name as author with 2 other people. The article was published (and is still accessible today).
Ho describes this as Kacsmaryk removing his own name and allowing his co-authors to go ahead and publish the work. That's in conflict to the WaPo reporting, which says he was the sole author before removing his name and replacing with the 2 authors on the publication now.
Assuming the Post has it right, that is a breach of academic integrity. Exactly what type of breach it was is less clear. Who actually wrote the paper? Kacsmaryk alone (as he originally represented to the journal) or a collaboration between himself and the 2 now listed as authors? If the former, that is plagiarism. If the latter, then what type of collaboration was it - did all three contribute enough to be worthy of authorship? If so, then Kacsmaryk's original plan was to deprive his coauthors of authorship they deserved. If not, then his removal of his name doesn't suddenly justify their names on the paper.
Normally when academic work is published, authors sign a statement that they have contriuted sufficiently to the work to desrve authorship, etc.
People like you (and Ho for that matter) are... not shy about criticizing the failings you see in academia. And that's fine. But here, you (and Ho) are dismissing a different sort of problem in academia and it just makes me wonder (especially with Ho) whether those critiques are sincere or merely political.
If I was going to be "political," I would have been critical of Judge Kacsmaryk. I don't like his jurisprudence—at least based on his mifepristone ruling, which looks to me like conservative judicial activism (although I'm happy to hear the other side)—and I suspect I don't like his politics and policy views. He's a conservative Christian, and I'm a member of the LGBTQ+ community who supports marriage equality, believes that abortion should be legal (we can discuss specific regulation), etc.
My guess is that your take on the ethics question lines up with your political views (although feel free to say otherwise if I'm wrong). My take on the ethics question goes AGAINST my political views.
So I don't agree with your take here. As Judge Ho points out, ghostwriting is quite common, and I see it all the time—e.g., statements, speeches, and op-eds issued under the names of high-profile people who didn't write them. As long as the person adopts the writing in question—i.e., reviews it, agrees with it, and consents to have it go out under their own name—there's no issue. And it's not plagiarism, since the ghostwriter consented to have their words go out under the name of the bylined person.
If we hear from the folks whose bylines did appear on the published article that something objectionable happened here, then I'm happy to revisit my view. But based on the Post article, it looks like this was a situation where a piece was ghostwritten for an organization, First Liberty, and they internally decided whose names would appear on the article—as was their right. The fact that Kacsmaryk might have pulled the laboring oar is really of no consequence, as long as everyone at First Liberty consented to the final allocation of bylines.
I apologize for my use of "political." I didn't it as you took it (but reading my post again it was a fair interpretation). It just struck me as odd that you seem to have great concerns about some issues that relate to academic integrity (campus speech) while having no concern about other issues that also do (authorship policy).
I should , say, I have no experience whatsoever in law publishing. In the sciences, where I am more familiar, authorship requirements and rights don't line up precisely with "owner of the work." Generally speaking, there is a list of requirements one must meet to be an author and all authors must attest that they meet those criteria. Non author contributors must also be acknowledged. When the work is by a company, that company owns the rights to the work, but they aren't free to just swap out author names willy nilly. It's clear that process was not followed by Judge K, although perhaps it is different in law than the sciences.
My politics are liberal, as you inferred, but I would be outraged if Justices Jackson, Sotomayor, or Kagan had the types of financial relationships that Thomas has (and hides). I would not want to see an important liberal ruling handed down in the manner of Judge K's mifepristone opinion. No reasonable reviewer could look at Judge K's opinion and look at his obvious preexisting views and not think he was just trying to write his beliefs into law. I don't think it would help the liberal cause to have liberal judges doing the same thing.
I think Obergfell is one of the best decsions to come from SCOTUS this century, but I think its moral force would have been weakened greatly if it subesquently emerged that Justice Kennedy had a Thomas Crow type relationship with a billionaire pro-LGBTQ activist.
Very interesting re: authorship in the sciences, which seems to take the concept much more seriously. Thanks for sharing that!
It's quite different in law—which I guess shouldn't be surprising, considering that so much of our "law" is ghostwritten by twenty-something clerks. And I'm not questioning the legitimacy of that process. The judges are making the final calls, and I think clerkly influence is sometimes greatly exaggerated. But it's definitely true that in the law, our concept of "authorship" is much more loose than what you describe in the sciences.
For another example, consider pretty much any article "written" by a Biglaw partner for an industry publication like Law360, an ALM affiliate, etc. It's frequently the case that even if the partner gets the byline or is the lead author, all the substantive work has been done by an associate—who sometimes shares the byline, sometimes gets recognized in a footnote, and sometimes goes entirely unmentioned.
David - I think that you are missing the point here. The reason why judicial nominees are asked to provide a list of their published articles is to provide insight to their judicial philosophy. Here, according to the Washington Post's reporting, Mr. Kacsmaryk (1) wrote an article that he knew was going to be published, (2) realized that it would be a problem if he were ever a judicial nomineee, (3) got two people to serve as "fronts" for the article, (4) knew that the article that he wrote was published, and (5) failed to disclose that he wrote the article, in response to a question on his judicial questionnaire asking him to disclose all articles that he wrote that were published.
To be clear, this is:
* Not a situation where Mr. Kacsmaryk wrote an article that was shelved and later published by other authors who used his work as a template;
*Not a situation where Mr. Kacsmaryk was the name scheduled to be placed on an article written by a third party, where his name was replaced by someone else taking credit for work by a ghost writer;
* Not a situation where Mr. Kacsmaryk wrote an article as a ghost writer that was always intended to be published under another person's name, such that it might not reflect his views.
Rather, this was a self-aware attempt to become a "stealth" nominee on this issue. As a progressive legal activist, I would be upset by Mr. Kacsmaryk's actions, even if undertaken by someone that I was ideologically predisposed to support.
In these circumstances, the fact that the fronts were happy to serve as fronts on an article that they did not write, because they wanted to help Mr. Kacsmaryk hide that he was the true author, while injecting his ideas into the public discourse does NOT have any relevance to whether Mr. Kacsmaryk acted unethically.
NB. I am using the term "Mr. Kacsmaryk" to distinguish that these were actions that he took before he was nominated, let alone confirmed.
Your remark about how people would feel if the shoe was on the other foot is one of the huge problems, IMHO, in political journalism these days. It's a type of "both sides-ism", as It assumes that many people are hypocrites like many modern day Republicans in politics. I know that I'm not. I don't believe that many people are. Republicans in politics have become a bunch of patent hypocrites (and liars). When Al Franken was accused of whatever he was accused of, Dems forced him to resign. When Dems perceived Ilan Omar has being antisemtic, they censured her. Paul Gosar? MTG? Not so much. Still in Congress.
Republicans barely make a peep (except, gulp, credit to Lindsey Graham for his passive-aggressive criticism of MTG praising the recent leaks). So, if the shoe was on the other foot, I'd suggest that the pro-choice/liberal/etc. federal judge was being dishonest, hiding something, wrote a terrible decision even though perhaps its ultimate holding was something that I favored, would feel that the person never should have been a judge, and would hope that the person could be removed, same as I feel about our friend in Texas. And I believe that more Democrats in politics would do the same than would defend him/her.
You throw a curve ball in there when you refer to him/her becoming "a great progressive judge". To me, as a former federal clerk who was exposed to what I consider a lot of "great judges", a "great judge" is someone who respects things like stare decisis and renders decisions notwithstanding his/her personal preference. Kacsmaryk has already shown that he's not that. There are a lot of words that can be used to describe his mifepristone decision. "Unethical" is not inappropriate IMHO. So I think it's all relevant. If Kacsmaryk proved to be a great judge -- whether I agree or disagree with his ultimate determinations is not relevant -- and this stuff about the article came out years later, after he has proven to be a great judge, then it's water under the bridge. It's not a matter of looking at this stuff in a vacuum. Consider the total package.
I do appreciate you taking the time to respond to me. I am a very satisfied subscriber -- although I don't walk in lockstep with you all that often, it is nice to read differing opinions that are expressed in an intelligent and credible manner.
Thank you for the kind words—I’m glad our disagreements have not made you unsubscribe!
I also agree with you that Democrats are less hypocritical in general than Republicans. This might hurt Democrats because they are more focused on principle and less focused on winning at all costs. The Franken situation you mention is a good example.
(For the record, I’m registered with neither political party, which is why I speak of the parties in the third person.)
Going to my point about Judge Ho's remarks being newsworthy, they've been picked up by other outlets, including Bloomberg Law and Reason:
https://news.bloomberglaw.com/us-law-week/fifth-circuits-ho-defends-justice-thomass-ethics-in-speech
https://reason.com/volokh/2023/04/18/judge-james-c-hos-remarks-on-justice-thomas-and-judge-kacsmaryk/
Any thoughts on Justice Thomas' involvement in the Ginger Partnership? The defunct company he listed on his returns for years after it was shuttered?
I'm with the comedians here I think. If filing returns is too complicated for Justice Thomas (as he's shown all those times before, when newspapers had to remind him of his obligations) he probably isn't suited for our highest court. This is a pattern, not a one-off. I feel no obligation to extend the presumption of good faith to someone who's done the exact same thing before ($680k on spousal income is reportable)
See footnote 1. I think It's a distraction from the real and serious issues here.
Ah, missed that. I'm likely not satisfied until someone independent of the court reviews Justice Thomas' financing at this point. He's had too many convenient "misunderstandings" for anyone to trust his filings.
One potential issue—which reasonable minds can disagree on—is the separation of powers. Sometimes Chief Justice Roberts suggests that having another branch investigate the judiciary implicates the separation of powers. I'm guessing that might be why the Democrats on the Senate Judiciary Committee began by asking the Chief to order an investigation (but if he doesn't, maybe the SJC will or should).
Scholars disagree on how real or legitimate the separation-of-powers concern is:
https://www.post-gazette.com/news/politics-nation/2023/04/16/clarence-thomas-testify-judiciary-supreme-court-ethics/stories/202304160126
There is a real separation of powers issue here, but nobody likes the way to dot the "i"s and cross the "t"s. It is undeniable that the House can conduct hearings into impeachment, and use subpoena power in support of those hearings. If I were a House Democrat, I would strongly consider (a) drafting a bill to convene an impeachment inquiry into Justice Thomas' financial misstatements, and (since the bill will not be taken up by the Speaker) (b) filing a discharge petition after 30 days to force each Republican in the House to decide which side they want to be on.
Or, Chief Justice Roberts could just order a Supreme Court investigation.
Or, Justice Thomas could voluntarily submit to an arms-length investigation.
Or, if he had any honor or sense of shame, Justice Thomas could just resign.
I understand the separation of powers concern but believe that it's fictional and not legitimate. Each branch of govt has some oversight-type ability over the other two. Allowing the judiciary to run rampant pursuant its own rules, without oversight, eliminates the "checks" from "checks and balances".
There has been some talk of Congress using its “power of the purse” to get the judiciary to improve on certain fronts. This is a strategy that could be harder to resist on separation-of-powers grounds, since it would simply be Congress exercising its constitutionally recognized power to appropriate money.
Great point, I'll have to check that link out.
Thank you for referencing the Taranto article in the WSJ. It seems from that article that Pro Publica was sloppy in its reporting of the judge’s disclosure by not referencing the complexities and contradictory elements in the disclosure documents and the disclosure guidelines. I however would not look to Congress for ethical guidance.
David, I must say I find this discussion both humorous and sad.
It is funny to watch how conservatives justify what Justice Thomas did. They not just twist themselves into a pretzel; they break the pretzel.
It is sad you fall into the trap of "well, what if the shoe was on the other foot?' If a liberal justice had done the same as Thomas, she would be gone by now. She would have had the decency to resign. But, oddly enough, we can find no example of a liberal justice engaging in such conduct, unless you want to go back to the Fortas affair nearly 55 years go. They just don't do this kind of thing. There is a special combination of arrogance and stupidity in the consertative judicial mind that encourages this conduct.
As for Judge K, his conduct is so outgageous as to be laughable. He thought he could get away with his concealment; sadly, he did.
I gave up on worshipping federal judges long ago. We cannot expect them to be saints, as they are only human (and nothing more). But we can expect them to hide their arrogance and not be outright stupid.