Opinion The case of Clarence Thomas’s new clerk taints the entire judiciary
It is impossible to overstate the prestige that attaches to a Supreme Court clerkship. The job is a golden ticket awarded to just 36 each year — about 1 in 1,000 law graduates, the best of the best. Major law firms lure Supreme Court clerks with signing bonuses of a half-million dollars. Clanton, who graduated from the Antonin Scalia Law School at George Mason University in 2022, will be the third high court clerk from that institution since 2021.
The New Yorker’s Jane Mayer unearthed Clanton’s texts in 2017, in an article about Turning Point USA, the conservative youth organization run by Charlie Kirk. Notably, Clanton, the group’s field director, didn’t deny writing the texts. “I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager,” she wrote in an email to Mayer.
Kirk told Mayer in a separate email that “Turning Point assessed the situation and took decisive action within 72 hours of being made aware of the issue.” Kirk spokesman Andrew Kolvet reaffirmed the New Yorker’s account when I wrote about Clanton in 2021 and repeated in a conversation in 2022 that she was “terminated from Turning Point after the discovery of problematic texts.”
The “I hate blacks” text doesn’t appear to have been an isolated incident. The website Mediaite, reporting in 2018 on Clanton’s hiring by Ginni Thomas, described a Snapchat message featuring “a photo of a man who appears to be Arab and a caption written by Clanton that reads, ‘Just thinking about ways to do another 9/11.’”
After leaving Turning Point, Clanton was hired by Ginni Thomas and lived with the Thomases in Virginia for almost a year before attending the Antonin Scalia Law School at George Mason University.
Thomas then recommended Clanton to Chief Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit. Pryor is one of the most conservative members of the federal judiciary; he made Donald Trump’s short list for the high court but was deemed too conservative to make it through Senate confirmation, and he has been a reliable “feeder judge” for the high court, particularly for Thomas.
After the news reports that Pryor had hired Clanton to be his law clerk, Democrats on the House Judiciary Committee filed an ethics complaint with the 11th Circuit. The matter was transferred to the 2nd Circuit, where Chief Judge Debra Ann Livingston dismissed the matter, saying Pryor and U.S. District Judge Corey Maze, who hired Clanton before the Pryor clerkship, “committed no misconduct in performing due diligence and then determining to hire the candidate based on the information before them.”
Letters submitted to the 2nd Circuit by Clarence Thomas and Pryor, and obtained by the Atlanta Journal-Constitution’s Bill Rankin, elaborated on Clanton’s relationship with the Thomases and her hiring by Pryor. “I know Crystal Clanton and I know bigotry,” Thomas wrote. “Bigotry is antithetical to her nature.”
Thomas said his wife “informed me of the horrible way in which she had been treated at Turning Point and asked that she be allowed to live with us.” He related how he encouraged Clanton, “understandably distraught and depressed,” to go to law school; recommended her when she applied to law school; and then suggested her to Pryor as a clerk, informing him of “the grossly out of character and unfounded allegations against her.”
Thomas concluded, “It is certainly my intention to consider her for a clerkship should she perform as I expect and excel in her clerkships.”
The 2nd Circuit’s dismissal raised a new defense: It quoted an unnamed Turning Point executive, presumably Kirk, who claimed that Clanton was herself the victim of a rogue employee dismissed for creating fake text messages to smear co-workers.
The Pryor letter said Clanton hadn’t disputed the allegations of racism because she was bound by a nondisclosure agreement. He quoted from a letter Kirk sent him asserting that media reports “are simply untrue.” In fact, Kirk claimed, an unnamed employee “was fired after the organization learned that this person had created fake text messages … to make it appear that those co-workers had engaged in misconduct when they had not.”
This is just not credible. It doesn’t square with what Clanton and her lawyer told Mayer at the time. It doesn’t square with what Kirk told Mayer, about taking “decisive action” after the texts were revealed. It doesn’t square with what Kolvet told me about Clanton being “terminated.”
To its credit, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, which oversees the federal judiciary, understood this. In July 2022, it ordered the 2nd Circuit to name a special committee to look further into the Clanton matter, finding that “an appropriate evaluation of the judges’ conduct cannot be accomplished without findings of fact as to: (1) whether the candidate made the statements attributed to her (or the substance of them); and (2) what the candidate told [Pryor and Maze] about them.”
Clanton, the panel noted, “has never publicly denied the allegations,” and “there are numerous individuals with first-hand knowledge of the candidate’s alleged conduct.” At a minimum, the committee said, “the special committee should attempt to interview the candidate and the witnesses identified in the media reports we have cited.”
You might think that if Pryor and Maze were so confident about Clanton’s character, they would have welcomed a more searching inquiry. Instead, they argued that the Judicial Conference committee didn’t have the power to tell the 2nd Circuit what to do, because the federal law governing judicial ethics states that a chief judge’s dismissal order is “final and conclusive and shall not be judicially reviewable on appeal or otherwise.” That seems like a rule designed to deter frivolous complainants from persisting — not a mechanism to prevent the Judicial Conference from taking action.
In the wake of the Pryor and Maze assertion, the 2nd Circuit asked the Judicial Conference executive committee for guidance about what to do. We don’t know what that guidance was — welcome to the black hole of judicial ethics proceedings — but we know the outcome: The 2nd Circuit stuck to its head-in-the-sand posture. In October 2023, it declined to do anything more.
Case closed. Clanton hired. This episode is a stain — and not just on Clanton and Thomas. It taints the entire federal judiciary, which has proven itself institutionally incapable of and unwilling to enforce basic ethics rules.
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