John Yoo writes for National Review Online about the latest misguided efforts to discredit Supreme Court Justice Clarence Thomas.
There is an old lawyer’s joke: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
It looks like ProPublica, a self-styled “independent, nonprofit newsroom that produces investigative journalism with moral force,” has now descended to the anonymous humor of the bar. Its writers have waged a yearlong campaign against Justice Clarence Thomas, to the point of accusing him of accepting financial gifts from conservative donors who hoped to influence him. These charges have failed. Not only has the Wall Street Journal editorial page debunked their facts, Justice Thomas has complied with the judicial-ethics rules, and, most important, has always followed the central principle of judicial honor: to have no personal interest in any case that appears before the Court.
So now that ProPublica has lost on the facts and the law, it has leveled its most shocking allegation of all — that Justice Thomas believed in 2000 that federal judges were underpaid! The horror. To spin this story of a threat to the Constitution itself, ProPublica interviewed former Florida representative Cliff Stearns, who allegedly sat with Thomas on a plane. Thomas allegedly said that Supreme Court justices were underpaid and that if Congress didn’t act, “one or more justices will leave soon.” From this stray comment, ProPublica claims that Justice Thomas himself was threatening to leave the bench if Congress did not increase his pay. (Don’t let Chuck Schumer find out or the judiciary will never see another penny.)
Of course, ProPublica nowhere finds any statement, public or private, where Thomas has ever said anything of the kind.
