Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

By Ariane de Vogue, CNN Supreme Court Reporter

(CNN) — A federal appeals court judge previously on short lists for the Supreme Court is taking the rare step to broadly and publicly reject allegations that Justice Clarence Thomas has been improperly influenced by lavish gifts provided by a conservative billionaire, dismissing “pot shots” at the Supreme Court in general.

“Judges are just like every other human being. We have a diverse group of friends, and those friends don’t influence the way we do our job,” Judge Amul Thapar, who sits on a Cincinnati-based appeals court, told CNN in an interview.

Thapar this past week released a new book about Thomas entitled “The People’s Justice,” in which he explores the justice’s favored judicial philosophy of originalism. Thapar posits that the theory is wrongly described as always favoring the “rich over the poor, the strong over the weak, the corporation over the consumer.”

He walks through Thomas’ reasoning in a handful of cases dealing with affirmative action, the Second Amendment, school vouchers, a cross burning law and public takings of private property, among others, and contends that Thomas’ originalism “more often favors the ordinary people who come before the court – because the core idea behind originalism is honoring the will of the people.”

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President Donald Trump nominated Thapar in to serve on the 6th US Circuit Court of Appeals in 2017, and he was also on Trump’s short list for Supreme Court vacancies. Thapar, 54, is a favorite of Senate Minority Leader Mitch McConnell, who handpicked him to serve as the US attorney for the Eastern District of Kentucky in 2006.

Thapar declined to talk about specifics regarding real estate magnate Harlan Crow’s hospitality to Thomas that included rides on private jets and luxury yachts. But he said that any determination about whether judges or justices have been improperly influenced must begin with a look at the body of their work.

“You can judge their works, and what they do, against what they’ve done in the past,” Thapar told CNN. “And if it’s consistent, then it’s hard to say anything influenced them.”

Thapar added that he finds it “disheartening that people who know better are taking pot shots at the court.”

And while Thomas speaks often about his cross-country travels with his wife, Ginni, in their RV every summer, he never publicly detailed the extent of luxury travel associated with Crow until the news was fleshed out by ProPublica in April.

Thapar, however, said the media has ignored Thomas’ other friends.

“What they don’t tell you,” Thapar said, “is that he also has friends who are homeless, friends he meets in RV parks across the nation.”

In his book, the judge wrote: “It makes sense that a justice who would rather spend his time in Walmart parking lots than at cocktail parties is an originalist.”

Virginia Canter, chief ethics counsel at the Citizens for Responsibility and Ethics in Washington, said the title of Thapar’s book is “completely disingenuous.”

“Given the hundreds of thousands of dollars in private jet travel, luxurious vacations and other extravagant gifts he has accepted from his wealthy benefactor, Thomas represents anything but a justice for the people,” Canter said.

Ethics and financial disclosures

Thapar rejects suggestions that Thomas should have disclosed the hospitality provided by Crow on annual financial disclosure forms.

In April, Thomas released a statement saying he hadn’t disclosed the hospitality because the ethics rules – that have since changed – didn’t require disclosure at the time. The Crow dispute has been referred to the Administrative Office of the US Courts, the policy arm of the federal judiciary.

“As judges, we try not to disclose more than is required under the rules because otherwise it becomes a game of ‘gotcha’ – you disclosed ‘x,’ why didn’t you disclose ‘y’?” Thapar said.

“So, what the Administrative Office has recommended is we disclose what is required by the rules, and I think it’s important we do that,” Thapar said. “I wish the rules were crystal clear, and when they are, we disclose whatever is required, or we should, and if we make a mistake ,we should own up to it.”

But when it comes to recusing themselves from cases when there’s a possible conflict of interest with a party to the case, Thapar said it’s easier for a lower court judge – who often sits on multimember panels – to make that choice.

“I’m one of 16,” Thapar said. “Another judge can step in my shoes.”

But the Supreme Court, on the other hand, only has nine members, Thapar pointed out, “and they have no provision – if they recuse – for someone to take their spot, so it’s a lot harder for them.”

Endorsement of originalism

Thapar’s book is a ringing endorsement of originalism, a judicial theory that requires the Constitution to be interpreted based on its original public meaning.

“Originalists believe that the American people, not nine unelected judges, are the source of the law that governs us – through the Constitution and statutes enacted by our elected representatives,” the judge writes.

He says Thomas has been misunderstood over his career.

“By cherry-picking his opinions or misrepresenting them, Justice Thomas’s critics claim that his originalism favors the rich over the poor, the strong over the weak, and corporations over consumers. They have called Justice Thomas ‘the cruelest justice,’ ‘stupid,’ and even an ‘Uncle Tom’ a traitor to his race,” Thapar writes.

Elizabeth Wydra, president of the liberal Constitutional Accountability Center, which supports what it calls a progressive view of originalism, believes the text and history of the entire Constitution, as amended, is “remarkably progressive.”

She rejects the views taken by Thapar and Thomas.

“While it is true that originalism can lead to wins for the ‘little guy,’ it only works that way if you give sufficient weight to the amendments that have, over time, pushed our Constitution along an arc of progress and made it a more inclusive and equality-focused document,” Wydra said.

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