If Sonia Sotomayor inappropriately refused to recuse herself from cases involving her publisher, that’s not a defense of Clarence Thomas taking half million dollar vacations from a billionaire… it’s a reason to be mad at Sotomayor too.
Alas, the folks at conservative outlet the Daily Wire fail to grasp the possibility of walking and chewing gum at the same time.
After weeks of headlines branding the judicial ethics reports surrounding Clarence Thomas as “yellow journalism” and a “hit piece” and a “smear campaign,” the Daily Wire has settled upon a new defense of Thomas as the mounting revelations become more embarrassing to try to dismiss. While the publication saw nothing wrong with taking cash from actors with business before the court for almost a month now, they’ve found out that Sonia Sotomayor did something kind of, almost, not really, but if-you-squint-hard-enough similar so now it’s time to get deeply concerned about judicial ethics. Which isn’t the defense of Thomas that they seem to think it is.
And as far as alleged ethical lapses go, the two cases aren’t exactly comparable. The Daily Wire clumsily explains:
In 2017, Sotomayor began receiving payments each year from Penguin Random House itself, which continued annually through at least 2021, the most recent disclosure available, and totaled more than $500,000. In all, she received $3.6 million from Penguin Random House or its subsidiaries, according to a Daily Wire tally of financial disclosures.
The critical detail in this passage is “financial disclosures.” As in, unlike Clarence Thomas, Justice Sotomayor actually disclosed all of this so the interns at the Daily Wire could easily type it all into a calculator while the reporters at ProPublica dug through buried documents to compile potentially Pulitzer-winning journalism.
She also actually wrote books, which doesn’t negate the financial relationship, but as corruption goes it hits a bit different when someone pays you for work product as opposed to funneling money into clandestine vacations for nothing. The latter reads a lot more like a bribe.
At the end of the day, Sotomayor probably should recuse herself from cases involving her publisher. Justice Breyer did this with the publisher. But all this really proves is why we need an explicit ethical code for the Supreme Court because the status quo model leaving the justices to their own devices on whether or not to recuse themselves isn’t working. That doesn’t buy Thomas much solace because the most generous read is that he shouldn’t be blamed for hearing cases where Harlan Crow had a financial interest, but does nothing to address the more pressing ethical concern that Thomas gratuitously took huge sums of money in breach of disclosure requirements.
Nice try though.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.