The judge defending Clarence Thomas has his own ethical conundrum

Federal Appeals Court Judge Amul Thapar is enjoying quite a moment of popularity in conservative circles, following his recently published paean to Supreme Court Justice Clarence Thomas. 

Thapar’s book — “The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him,” — makes the adulatory case that Thomas’s originalism, which purports to interpret the Constitution according to its public meaning at the time of ratification, “more often favors the ordinary people who come before the court.” 

Although Thapar does not address the ethics issues currently confronting Thomas, it turns out that his book raises ethics questions of its own. 

Appointed to the federal district court by President George W. Bush in 2008, and elevated to the Sixth Circuit Court of Appeals by President Donald Trump in 2017, Thapar is a frequent speaker at Federalist Society events and was shortlisted for nomination to the Supreme Court seat ultimately taken by Justice Neil Gorsuch. His prominence has helped attract considerable attention to his book in conservative circles and mainstream media. 

Many judges and justices have written books, of course. This is encouraged as an “extrajudicial activity” under the Code of Conduct for United States Judges, adopted by the lower federal courts in 1973. Thapar’s ethical problem, however, is that he appears to have made extensive use of his publicly funded judicial clerks for his writing, which is specifically prohibited by the code. 

In his acknowledgments, Thapar thanked by name his five “current law clerks” who “volunteered their time and provided me with essential help in researching, editing, and, perhaps most important, thinking about the cases.”  

Such assignments to judicial employees could violate Canon 4G of the Code, which provides that, “a judge should not to any substantial degree use judicial chambers, resources, or staff to engage in extrajudicial activities.” The five clerks’ involvement can certainly be seen as “substantial,” given that, as Thapar put it, “When emergencies arose or I just needed some advice, all five would volunteer to help, day or night.” Thapar has described his favored writing times as “7:00 to 11:00 at night, and 3:00 to 7:00 in the morning,” consistently outside any clerk’s regular working hours. 

The U.S. Judicial Conference’s Formal Advisory Opinion 79, issued in 2009, is yet more explicit. Although the “minor or limited” use of law clerks “for one or two days for ‘blue-booking,’ cite-checking, editing, or discrete research assignments” is permissible, Thapar’s admitted “day or night” use of five clerks “throughout the process” seemingly exceeded the maximum allowed by the advisory opinion.  

Lest there be any doubt, the advisory opinion explains that the “use of law clerks for extensive research for, or drafting of, a substantial scholarly article ordinarily will not satisfy the requirements” of the code. 

But Thapar’s misuse of his staff was worse than that. “The People’s Justice” is not a scholarly article. It is a widely marketed book, published by a commercial press, from which Thapar stands to receive significant income. The deployment of clerks on such projects is absolutely barred per the Judicial Conference advisory opinion, which states unequivocally, “the use of judicial personnel to assist the judge in performing activities for which extra compensation is to be received raises too great a risk of abuse to permit.” 

The amount of Thapar’s compensation is unknown because his mandatory financial disclosure reports for 2021 and 2022 have not yet been posted on the U.S. Courts website. A source in the publishing industry told me that advances from Thapar’s publisher, Regnery Gateway, are typically in the $10,000-$50,000 range. Thapar acknowledged in a Federalist Society interview that “The People’s Justice” was ranked Amazon’s “number one new release” on the day of publication. The latest figures I could locate suggest that the book has already sold around 5,000 copies. 

It is irrelevant that Thapar called his clerks volunteers. As recognized in the Judicial Conference advisory opinion, the power imbalance between the judge and his clerks — who are dependent on their boss for future references — makes true volunteering impossible: 

“The danger exists that a judge may pressure current or potential staff members to work on the judge’s projects, and this danger is compounded by the difficulty of distinguishing between a staff member’s official and unofficial time.” 

Imagine the unspoken pressure on the fifth clerk after the first four had “volunteered” to work overtime for the judge. 

Although Thapar doesn’t say whether he paid his clerks for their extra work, “a judge may not avoid these restrictions on the use of judicial personnel for compensated activities, even if the judge offers to share this compensation with his or her staff.” Moreover, the current unavailability of Thapar’s financial disclosures makes it impossible to tell whether he included any of the clerks’ uncompensated time in his reported gifts.  

Thapar did not reply to my requests for comment on his use of the five clerks’ time, but he has revealed his views on financial disclosure in response to questions about Justice Thomas’s non-disclosure of many luxury vacations as the guest of real estate mogul Harlan Crow. “What we don’t want to do is over-disclose,” he told the New York Times.    

That was a strange answer from a judge whose job includes applying the many federal tax and securities regulation statutes, among other laws, requiring detailed disclosures. In my former practice as a consultant to judges and law firms, I always advised my clients to err on the side of disclosure. But it turns out that Thapar had something very specific in mind. 

In an interview with The Daily Caller, Thapar further explained, “The reason we don’t over-disclose is because then it becomes a game of gotcha. If I disclose, for example, that you bought me coffee, then everyone asks, ‘Why didn’t you disclose that Joe brought you coffee, and Diane bought you coffee?’” 

I guess he has a point. If you disclose one all-expense paid mega-yacht cruise, or a trip on a billionaire’s private jet, pretty soon you might have to disclose all of them

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of Judicial Conduct and Ethics (5th edition), and has written many other books. 

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