Opinion | Clarence Thomas should get out his checkbook and reimburse Harlan Crow

For weeks now, I’ve refrained from making the comparison to Fortas, who resigned after reports about his continuing financial relationship with a former client, financier Louis Wolfson, who had been convicted of violating federal securities laws.

Others disagree, but invoking Fortas seemed to me potentially unfair. No longer. The Crow tuition payments cross the line from extraordinary hospitality to direct financial benefit, money that ought never to have been accepted but should have been disclosed if it was.

ProPublica’s report involves Mark Martin, Thomas’s grandnephew. The justice and his wife had taken in the boy to live with them when he was 6 and were “raising him as a son,” just as Thomas’s grandparents had raised him, Thomas told C-SPAN’s Brian Lamb in 2007. “He’s more of a challenge than I was,” Thomas added.

Around that time, boarding school entered the mix — first Randolph-Macon Academy in Virginia, which Crow had attended, then Hidden Lake Academy in Georgia, a therapeutic boarding school, where costs were roughly $73,000 a year.

Crow opened his checkbook to defray the price. In a statement released Thursday morning, Thomas’s friend Mark Paoletta said Crow had paid for Martin’s first year of tuition at Randolph-Macon (the cost this year for boarding students is about $47,000), as well as the year at Hidden Lake.

This is simply wrong. The tuition payments went directly to the schools, but they effectively constituted a cash gift to Thomas, one he never should have accepted from anyone, but certainly not from Crow. Thomas gets to choose his friends, but he doesn’t get to take their money.

Crow, a Dallas real estate magnate has portrayed himself as a donor to “moderate Republican” candidates and causes, and stressed to the Dallas Morning News that he, unlike Thomas, is “pro-choice.” But Crow has an extensive history of supporting conservative groups, including those with interests before the court — not financial but ideological. He serves on the board of the American Enterprise Institute, donated generously to the Federalist Society and helped found the anti-tax Club for Growth.

He also contributed $500,000 in 2009 to launch Liberty Central, a now-dissolved conservative advocacy group founded by Thomas’s wife, Virginia “Ginni” Thomas, and whose board included the Federalist Society’s Leonard Leo. In 2010, according to Liberty Central’s tax filings, it paid Ginni Thomas $120,000 in salary.

In a statement to ProPublica, Crow cast his help for Thomas’s grandnephew as part of his record of “giving back to those less fortunate, especially at-risk youth,” adding, “It’s disappointing that those with partisan political interests would try to turn helping at-risk youth with tuition assistance into something nefarious or political.” Someone being raised by a Supreme Court justice hardly qualifies as among the less fortunate.

Should Thomas have accepted this largesse? Thomas himself was queasy — though he overcame his qualms — about taking a much smaller benefit in 2002, when a Florida friend offered $5,000 to help pay Martin’s private school tuition, according to a 2007 biography by Kevin Merida and Michael Fletcher. “At first, Thomas was worried about the propriety of the donation,” Merida and Fletcher write. “He agreed to accept it if the contribution was deposited directly into a special trust for Mark.”

Notably, in his financial disclosure report, Thomas listed the money as an “education gift to Mark Martin.” Crow’s tuition payments, by contrast, were never reported. Paoletta said in his statement that they “did not constitute a reportable gift” because the definition of “dependent child” under the Ethics in Government Act “is limited to a ‘son, daughter, stepson or stepdaughter.’” Not mentioned by Paoletta: According to ProPublica, “Thomas gained legal custody of Martin and became his legal guardian around January 1998.”

Besides Fortas, Thomas’s behavior calls to mind an almost forgotten and highly unfortunate episode involving the since-deceased Justice William J. Brennan Jr. In 1991, the year after his retirement, Brennan reported that a longtime friend, Washington real estate developer Charles E. Smith, gave the justice and his wife $20,000 in cash and forgave another $120,000 in loans — with $80,000 of the generosity coming while Brennan was on the bench.

The gifts “reflected only the affection and generosity of a dear friend,” Brennan told me at the time. “Mr. Smith has stated that he made these gifts in recognition of my public service.”

Brennan’s public service was indeed remarkable, but the only appropriate payment for public service comes in the form of government salary. Taking Smith’s money was a mistake, one that no doubt would have received greater attention, and opprobrium, had the justice not already retired.

Which brings us to Fortas. His elevation to chief justice tanked after reports that he had been paid $15,000 to teach a law school seminar. Part of the money — a significant sum since his annual salary at the time was $39,500 — came from private donors with interests before the court.

Then, after Fortas’s nomination to be chief justice was withdrawn, came reports about his arrangement with Wolfson, who agreed to pay Fortas $20,000 annually — and after his death, his wife, a tax lawyer — for advice to Wolfson’s family foundation. In the end, Fortas took a single payment from Wolfson, which he later returned, before the Wolfson deal became public.

So how does Thomas stack up? Wolfson was a far more questionable character than Crow. As Bob Woodward later reported, Fortas, as a sitting justice, improperly advised Wolfson on his travails with the Securities and Exchange Commission, and Wolfson sought to enlist Fortas to intervene with President Lyndon B. Johnson, a close Fortas friend, to obtain a pardon. All this makes the Fortas episode considerably worse.

At the same time, the benefits we now know Thomas to have received from Crow dwarf the Wolfson money — a $20,000 check that Fortas never cashed. Indeed, the ProPublica report details two additional Thomas trips on Crow’s yacht, one to the Caribbean, the other to Russia and the Baltics. That Thomas was doing a good deed by taking in his grandnephew, that the tuition payments were for a good cause, does not excuse the failure to report or, more fundamentally, the terrible judgment involved in accepting this benefit.

So what should happen next? This is a frustrating question to ponder given the inevitable gulf between what should happen and what will. First, though, we need more facts:

As I’ve argued from the start, Thomas should revise his disclosure forms to fully and appropriately reflect his relationship with Crow.

The financial disclosure committee of the Judicial Conference of the United States should assure itself that the forms comply with legal requirements and determine whether Thomas’s recidivist failures to disclose income, gifts and transactions require a referral to the Justice Department.

Congress can play a useful fact-finding role, asking Crow for the full roster of plane flights, yacht trips and other benefits lavished on Thomas.

And Thomas should take out his checkbook and reimburse Crow for the tuition payments. No reasonable person believes that Crow would have anted up for Martin’s education were it not for his relationship to Thomas.

No reasonable person can be comfortable with this kind of lopsidedly beneficial relationship between a justice and an activist. The federal judges I know won’t let me buy them lunch.