“At Long Last, Have You Left No Sense Of Decency?”
October 31, 23016 (Fault Lines) — The allegations against Justice Clarence Thomas, that he twice “cupped” the butt of lawyer Moira Smith some 17 years ago at a Washington D.C. dinner party, have been thoroughly skewered by our mean-ass editor. Although he is no fan of Thomas, SHG hates intellectual dishonesty more. Forgive me while I add my two cents worth.
We now know a little more about Ms. Smith. For example, we know that:
(1) Ms. Smith has long been a involved in the Alaska Democratic party, serving as a national committeewoman for Alaska’s Young Democrats;
(2) until this year, Smith’s former husband held a senior position with President Obama’s national security apparatus as a climate science expert;
(3) her present husband was former chair of the Alaska Democratic party and his sister was and is a Democratic National committeewoman, and
(4) Smith’s present husband’s run for Congress went down in flames, like those that devoured the Hindenburg, after his campaign was found out to have engaged in dirty tricks.
See Carrie Severino, Who is Moira Smith?, National Review (October 27, 2016); Carrie Severino, Who is Moira Smith, Part 2, National Review (October 27, 2016); Suzanne Downing, Moira Smith launches Supreme attack, Must Read Alaska (October 27, 2016).
Attacks like this on Thomas bring crazy ideas out of the worm-eaten woodwork. Anita Hill, who sought to deny Thomas confirmation to the Supreme Court, and is now a gender studies professor at Brandeis, is calling for “a fair investigation.” See here. The National Law Journal, which originally broke the story after only light vetting (in my view), solemnly consulted an “ethics expert” from the University of Pittsburgh School of Law, and ruminated publicly over what can be done to punish Thomas. See Zoe Tillman and Marcia Coyle, Clarence Thomas Groping Allegations Land in Oversight Vacuum, Law.com (October 28, 2016) (suggesting that impeachment may be the only way to get Thomas).
So why am I writing about this? Not because of politics. I don’t care who wins the presidential election. The nation will survive.
I don’t write about this because of my affinity for Justice Thomas’ approach to the Constitution. I don’t share his approach. However, it is my firm opinion that Justice Thomas is the victim of vicious character assassination. See, e.g., Carrie Severino, Justice Thomas Is A Good Man, National Review (October 27, 2016) (“Liberals claim to be big fans of open-mindedness, due process and racial equality. But they do that only until it comes to the longest serving African American justice on the Supreme Court, for whom they are willing to discard all of those lofty pretensions. Those of us who have known the Justice or worked with him in any capacity, by contrast, including those who disagree with him, recognize him to be a good and honest man.”); Paul Mirengoff, About the Groping Allegations Against Justice Thomas [with Comment by John], PowerLine (October 27, 2016) (“This story has all the earmarks of a lie. No doubt the Democratic Party and its dark money supporters pay well for such fairy tales, but the rest of us should express our contempt for Democrat partisans like Moira Smith who fabricate lies 17 years after the fact. This kind of nonsense has gone on for far too long. We should put a stop to it.”)
In a different age, we saw this method of character assassination — asking the target to prove a negative — before. Most of you are too young to remember Republican Senator Joe McCarthy* and the Army-McCarthy hearings.** Joseph Nye Welch was the chief counsel for the United States Army while it was under investigation for alleged Communist activities by McCarthy’s frightening Senate Permanent Subcommittee on Investigations.
After Joe McCarthy publicly slimed a young legal associate of Mr. Nye, by implying the young man might be a communist, the highly esteemed lawyer for the Army, put a figurative arrow through Joe McCarthy. He simply asked: “At long last, have you left no sense of decency?”
When it comes to putting that same question to Moria Smith, and her supporters like Ms. Hill, the question answers itself. Passion and ideology always trump decency when you have the motivation and opportunity to smear a Supreme Court Justice for whom you feel visceral hatred and who is a living exemplar of the iconic sitting duck.***
Richard G. Kopf
Senior United States District Judge (Nebraska)
*Ironically, McCarthy had been a judge prior to becoming a U.S. Senator.
**I have a vague recollection of watching a black and white television flicker, and my father, a dyed-in-the-wool Republican, suggesting that Sen. McCarthy was a bad man.
***Courts are the place to resolve sexual assault claims. Even for federal judges. Example: Former U.S. District Judge, Sam Kent’s federal prosecution is a good illustration. Kent pleaded guilty in February 2009 to obstruction of justice for lying to a judicial committee investigating an allegation he sexually harassed an employee. He also acknowledged that he had had non-consensual sexual contact with two female employees between 2003 and 2007. He was sentenced on May 11, 2009, to serve 33 months in federal prison on the charge of obstructing justice in the investigation of the sexual abuse accusations.
Ms. Smith allegations will never be tested. Neither she (nor prosecutors who might sympathize with her) can bring suit 17 years after the incident. In a sick way, that’s too bad. I would predict that a competent trial lawyer (like the many CDLs who read Fault Lines) would take her story apart until there was nothing left for her but avoiding the possibility of a perjury prosecution. Instead, Justice Thomas will be tainted in perpetuity by these ancient, untested and absurdly improbable accusations by someone steeped in partisanship.