Among the many connections between right-wing media and the conservative legal movement as revealed in Mother Jones' report on Groundswell, the leading participation of conservative Justice Clarence Thomas' wife on issues that may be before the Supreme Court raises significant conflict of interest concerns.
Virginia "Ginni" Thomas has not been shy about her tea party activism on topics that come before Justice Thomas and present a clear conflict, pursuant to the Code of Conduct for United States Judges. However, because Supreme Court Justices refuse to be bound by these rules of ethics, Justice Thomas continues to participate in decisions that his wife is involved in through her right-wing advocacy, activism that in some cases is paid.
The recent Groundswell memoranda obtained by David Corn of Mother Jones reveal that these conflicts are getting worse.
Ginni Thomas was the founder and leader of Liberty Central, a political nonprofit "dedicated to opposing what she characterizes as the leftist 'tyranny' of President Obama and Democrats in Congress." The group was funded by Harlan Crow, frequent patron of the Thomas' projects and causes and a financial supporter of right-wing campaigns such as the "swift boat" attacks on then-presidential candidate John Kerry and the advertising push to confirm President George W. Bush's Supreme Court nominees. Crow also serves on the board of the American Enterprise Institute, whose Edward Blum brought the two most recent attacks on the Voting Rights Act and affirmative action before the Supreme Court. Justice Thomas favored Blum's positions against progressive precedent on both civil rights issues.
Ginni Thomas' direction of Liberty Central was heavily criticized in the run-up to the Supreme Court's decision on the constitutionality of the Affordable Care Act because Justice Thomas "was planning to rule on the healthcare law when his wife, a conservative lobbyist, has made so much money challenging the law." As U.S. News & World Report explained, this paid activism continued even after Ginni Thomas stepped down from Liberty Central to form a separate lobbying firm, Liberty Consulting:
[J]ust days after healthcare law was upheld (with Clarence Thomas dissenting), new financial forms show that Thomas's wife, Ginni, continued to rake in a profit from opposing healthcare reforms in 2011--even after she previously came under fire for doing so.
According to Thomas's 2011 financial disclosure report form, filed on May 15 and obtained Friday by Whispers, the Thomas's invested up to $15,000 in the political lobbying firm Liberty Consulting, where Ginni Thomas continues to earn a salary and benefits. The firm lobbied actively against the healthcare law, according to liberal news magazine Mother Jones.
Ginni formed Liberty Consulting after she was criticized for her work at Liberty Central, a non-profit tea party organization that also lobbied against the health care law.
In March of this year, Liberty Central was the subject of a letter sent to the IRS by Common Cause, a nonprofit that works for government accountability. The letter argued that Liberty Central violated the proportionality rule for non-profits because the majority of its activities were designed to help Republican candidates.
Ginni later stepped down from Liberty Central, but her involvement in conservative politics extends beyond these two groups. Among Ginni's former employers is the Heritage Foundation, another vocal critic of the healthcare law. She also currently works as a "special correspondent" for the conservative website The Daily Caller.
In January 2011, Justice Thomas "inadvertently" left out information about his wife's employment, including earnings over the past 13 years that added up to as much as $1.6 million.
The government reform group Common Cause has also formally raised questions about Justice Thomas' failure to recuse himself in the infamous Citizens United case, because "[i]t appears [Justice Thomas] participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision...[and] there may also be an undisclosed financial conflict of interest due to his wife's role as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections."
Nevertheless, the memos obtained by Mother Jones in relation to the right-wing Groundswell project demonstrate that Ginni Thomas is continuing to be paid on issues and court cases that will likely come before her husband once again.
The Groundswell memos contain multiple references to the group's initiatives on issues that are high priorities for the right-wing legal movement, perhaps unsurprising as leadership of the conservative Federalist Society and Judicial Watch are Groundswell participants. For example, Groundswell was involved in coordinating the failed obstructionism against President Obama's nominees to lead the Labor Department and the Environmental Protection Agency, Thomas Perez and Gina McCarthy. The Groundswell solicitation for needless questioning of McCarthy and baseless smears of Perez as supportive of the "Muslim Brotherhood organizations and Shariah" and "extremely antagonistic toward whites" were specifically repeated by filibustering GOP senators and right-wing media, in some cases by the participants in Groundswell themselves.
Groundswell was also apparently part of the successful campaign to filibuster the highly qualified Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit and block gun violence prevention efforts, in accordance with NRA priorities. These efforts on behalf of the gun lobby are of particular note because the right-wing campaign to prevent common sense and constitutional restrictions on firearms is very much a live issue in the courts. In fact, a March 27 Groundswell memo obtained by Mother Jones not only reports on recent lower court rulings in this area of law, it specifically notes that "this is an issue that may be decided at the Supreme Court level." That same memo additionally discussed the marriage equality cases that had yet to be decided, highlighting "economic costs to making same sex marriages 'legal'" and the protests of "conservative pro-traditional families."
Ginni Thomas also actively coordinated Groundswell's efforts to assist in the attacks on voting rights precedent, doing so in the months leading up to the Supreme Court's infamous 5-4 conservative Shelby County decision. In communications with voter suppression groups, such as True the Vote, that sought to "reframe" voter ID laws because they are "already lost & equated with racism," Ginni Thomas demanded to know who "are key working group members on ELECTION LAW, ELECTION REFORM and THE LEFT'S NARRATIVES, Groundswell???" (emphasis in original). It is this unapologetic Groundswell involvement in cases that were actively pending before the Supreme Court that reveals Ginni Thomas is continuing the ethically dubious right-wing activism that raised so many red flags previously.
Ginni Thomas is once again posing serious conflict of interest problems for her husband that would not be tolerated in any other level of the federal judiciary, especially not in pending high-stakes cases. As other media join Mother Jones and report on Groundswell, a wider audience will be introduced to the Thomas' uncomfortable and increasing involvement in paid right-wing activism that is increasingly before the Supreme Court.
Other Justices recuse themselves periodically. At some point, even Justice Thomas must as well.