Fault Lines
22 May 2017

“At Long Last, Have You Left No Sense Of Decency?”

October 31, 23016 (Fault Lines) — The allegations against Justice Clarence Thomas, that he twice “cupped” the butt of lawyer Moira Smith some 17 years ago at a Washington D.C. dinner party, have been thoroughly skewered by our mean-ass editor. Although he is no fan of Thomas, SHG hates intellectual dishonesty more. Forgive me while I add my two cents worth.

We now know a little more about Ms. Smith. For example, we know that:

(1) Ms. Smith has long been a involved in the Alaska Democratic party, serving as a national committeewoman for Alaska’s Young Democrats;

(2) until this year, Smith’s former husband held a senior position with President Obama’s national security apparatus as a climate science expert;

(3) her present husband was former chair of the Alaska Democratic party and his sister was and is a Democratic National committeewoman, and

(4) Smith’s present husband’s run for Congress went down in flames, like those that devoured the Hindenburg, after his campaign was found out to have engaged in dirty tricks.

See Carrie Severino, Who is Moira Smith?, National Review (October 27, 2016); Carrie Severino, Who is Moira Smith, Part 2, National Review (October 27, 2016); Suzanne Downing, Moira Smith launches Supreme attack, Must Read Alaska (October 27, 2016).

Attacks like this on Thomas bring crazy ideas out of the worm-eaten woodwork. Anita Hill, who sought to deny Thomas confirmation to the Supreme Court, and is now a gender studies professor at Brandeis, is calling for “a fair investigation.” See here. The National Law Journal, which originally broke the story after only light vetting (in my view), solemnly consulted an “ethics expert” from the University of Pittsburgh School of Law, and ruminated publicly over what can be done to punish Thomas. See Zoe Tillman and Marcia Coyle, Clarence Thomas Groping Allegations Land in Oversight Vacuum, Law.com (October 28, 2016) (suggesting that impeachment may be the only way to get Thomas).

So why am I writing about this? Not because of politics.  I don’t care who wins the presidential election. The nation will survive.

I don’t write about this because of my affinity for Justice Thomas’ approach to the Constitution. I don’t share his approach. However, it is my firm opinion that Justice Thomas is the victim of vicious character assassination. See, e.g., Carrie Severino, Justice Thomas Is A Good Man, National Review (October 27, 2016) (“Liberals claim to be big fans of open-mindedness, due process and racial equality. But they do that only until it comes to the longest serving African American justice on the Supreme Court, for whom they are willing to discard all of those lofty pretensions. Those of us who have known the Justice or worked with him in any capacity, by contrast, including those who disagree with him, recognize him to be a good and honest man.”); Paul Mirengoff, About the Groping Allegations Against Justice Thomas [with Comment by John], PowerLine (October 27, 2016) (“This story has all the earmarks of a lie. No doubt the Democratic Party and its dark money supporters pay well for such fairy tales, but the rest of us should express our contempt for Democrat partisans like Moira Smith who fabricate lies 17 years after the fact. This kind of nonsense has gone on for far too long. We should put a stop to it.”)

In a different age, we saw this method of character assassination — asking the target to prove a negative — before. Most of you are too young to remember Republican Senator Joe McCarthy* and the Army-McCarthy hearings.** Joseph Nye Welch was the chief counsel for the United States Army while it was under investigation for alleged Communist activities by McCarthy’s frightening Senate Permanent Subcommittee on Investigations.

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Welch is on the left and McCarthy (fittingly) is on the right. This was the first time that a hearing of senate committee had been broadcast on television throughout the nation.

After Joe McCarthy publicly slimed a young legal associate of Mr. Nye, by implying the young man might be a communist, the highly esteemed lawyer for the Army, put a figurative arrow through Joe McCarthy. He simply asked: “At long last, have you left no sense of decency?”

When it comes to putting that same question to Moria Smith, and her supporters like Ms. Hill, the question answers itself. Passion and ideology always trump decency when you have the motivation and opportunity to smear a Supreme Court Justice for whom you feel visceral hatred and who is a living exemplar of the iconic sitting duck.***

Richard G. Kopf
Senior United States District Judge (Nebraska)

*Ironically, McCarthy had been a judge prior to becoming a U.S. Senator.

**I have a vague recollection of watching a black and white television flicker, and my father, a dyed-in-the-wool Republican, suggesting that Sen. McCarthy was a bad man.

***Courts are the place to resolve sexual assault claims. Even for federal judges. Example: Former U.S. District Judge, Sam Kent’s federal prosecution is a good illustration. Kent pleaded guilty in February 2009 to obstruction of justice for lying to a judicial committee investigating an allegation he sexually harassed an employee. He also acknowledged that he had had non-consensual sexual contact with two female employees between 2003 and 2007. He was sentenced on May 11, 2009, to serve 33 months in federal prison on the charge of obstructing justice in the investigation of the sexual abuse accusations.

Ms. Smith allegations will never be tested. Neither she (nor prosecutors who might sympathize with her) can bring suit 17 years after the incident. In a sick way, that’s too bad. I would predict that a competent trial lawyer (like the many CDLs who read Fault Lines) would take her story apart until there was nothing left for her but avoiding the possibility of a perjury prosecution. Instead, Justice Thomas will be tainted in perpetuity by these ancient, untested and absurdly improbable accusations by someone steeped in partisanship.

11 Comments on this post.

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  • MOK
    31 October 2016 at 11:00 am - Reply

    Another BINGO, Judge. But, I’m an over-65 “angry” white male of European descent, so perhaps I am part of the problem? At least that is what someone will say. So be it. I know BS when I see/read/hear it and I’m thinking this “lady” is full of it up to her eyebrows.

  • Richard G. Kopf
    31 October 2016 at 11:42 am - Reply

    MOK,

    You are everything you say you are except “angry.” All the best.

    RGK

    • MOK
      31 October 2016 at 1:56 pm - Reply

      HA! Well, I am probably “full of” something, too. 🙂

  • Jim Tyre
    31 October 2016 at 11:54 am - Reply

    Judge Kopf,

    We now know a little more about Ms. Smith. For example, we know that:

    You follow with four bullet points from an article. Basically, she’s a democrat, her husband is a democrat, and her husband (not her) engaged in some dirty tricks.

    So what? Honestly, it sounds more like an attempt to slime her (and not a very good one) than the informed and intelligent writing that I’ve come to appreciate from you over the years.*

    I did appreciate your McCarthy reference. The lawyer who was my mentor when I was a baby lawyer had been very involved in those matters. Though only through learning at his feet, my memories are vivid.

    *I’m not inclined to believe Ms. Smith’s allegations, if care.

    • Richard G. Kopf
      31 October 2016 at 3:16 pm - Reply

      Jim,

      I understand and appreciate your point that what I wrote could be read to unfairly “slime” Ms. Smith. On the other hand, it does reveal, fairly I think, facts relevant to her possible motives.

      Indeed, I think those facts should have been part of the original story authored by Marcia Coyle and published by the National Law Journal. That said, Ms. Coyle has a reputation of being a fine legal journalist and nothing I have said is meant to impugn her sterling reputation.

      One of the sad things about our current culture is that partisans from both parties emulate McCarthy. As a non-partisan, if I have unintentionally modeled McCarthy perhaps then in an ironic way I made the point I was hoping to make.

      I sincerely respect your point of view. And, I take your criticism in that light.

      All the best.

      Rich Kopf

  • Brian
    31 October 2016 at 6:07 pm - Reply

    Sorry Judge, I’ve got to side with Jim Tyre on this one. I’ve been working backwards through this blog, and bookmarked your old personal one for future perusal, in large part because you have a fine writing style and make substantive comments on interesting issues.

    Not so much this time.

    As Jim pointed out, those bullet points really aren’t particularly informative. Also, a little digging left me unable to confirm if her husband even knew those dirty tricks were occuring. [Source: juneauempire.com/stories/050808/sta_277019618.shtml] Meaning that his wife is only tangentially related to a scandal. What’s worse is that the same “evidence” could have been leveled at you, Judge, what with that nutjob that occasionally follows you around.

    And while I don’t believe Smith’s story, it wouldn’t be the first time someone had a different reputation from the one their actions ought to have caused. See Bill Cosby, those Catholic priests, etc.

    The point you intended for this article (including the response to Jim above) is an excellent one, and I suspect this is one issue that actually pushes your buttons. I look forward to reading your next article, as you’ve got to make up for a sub-par one now.

    • shg
      31 October 2016 at 6:34 pm - Reply

      If you were cross-examining the accuser at trial, would you question her credibility? Would you ask about aspects of her background and close relations that tended to impeach her? Would this be Brady? It’s hardly conclusive, but it would be inconceivable not to raise each of these points and cross her on them to impeach her credibility.

    • Richard G. Kopf
      31 October 2016 at 7:17 pm - Reply

      Brian,

      All great points. But motive matters in such things.

      For example, the original article that NLJ published referred to Ms. Smith as “now vice president and general counsel to Enstar Natural Gas Co., in Alaska . . . .” Nothing else about her activities in Alaska.

      Why would a general counsel of large reputable gas company fabricate something? If that’s the only thing you knew about her you would ask the question my wife asked me: “What motive does she have to lie?”

      Honestly, I don’t know any CDL who wouldn’t use the stuff I pointed in a cross-examination of Ms. Smith. It might be done gently or it might be done harshly. But it would be done.

      Anyway, that’s my story and I’m sticking to it. By the way, I have already written the post for next week. I hope you like it!

      All the best.

      Rich Kopf

      • Brian
        2 November 2016 at 3:00 pm - Reply

        Judge,

        That’s quite a fair point. However, if there were actual evidence that this had occurred, I hope none of us would expect such a (relatively weak?) cross-examination to produce reasonable doubt. Which implies we are talking about a trial in the absence of evidence – during which the defendant would be presumed guilty until proven innocent, as seems usual for sexual assault allegations at the moment.

        The obvious unfairness of the system aside, I would like to point out that there is only one other time I can think of where there is such a bias towards the victim (rightly or wrongly), and that is in the court of public opinion, when a cop gets caught murdering someone on video. And yet, when they try to pull off a similar defensive strategy by releasing their victim’s rap sheet, we condemn them for it.
        [Source: http://blog.simplejustice.us/2014/11/23/the-outrage-of-the-victims-rap-sheet-must-end/%5D
        As we should. Now, it would be one thing if she had ever made such accusations before, and it was clear they were on the basis of political affiliation, but by your own admission you are aware of no such thing. (Neither am I, for that matter.)

        In fairness, my view of this is tainted somewhat by being from Connecticut, where election law states that a registered independent cannot vote in *any* primary election. I find this is not the case in Alaska.

        However, your poor choice of quotations from the articles you cited didn’t help matters either. Severino’s wasn’t too bad, considering how much hypocrisy there is going around these days, but the Powerline quote from “John”‘s comment was partisan enough on its own to make me scroll back up to check on the author. I would recommend a humble ellipsis, like so:

        “This story has all the earmarks of a lie…the rest of us should express our contempt for Democrat partisans like Moira Smith who fabricate lies 17 years after the fact. This kind of nonsense has gone on for far too long. We should put a stop to it.”

        Not to claim that “dark money” doesn’t exist or anything – it does – but the part of the quote I cut out above smacks of Infowars-esque prejudicial bias (which I know full well you do not share) and only hurts your article.

        Now, I actually do have a single other possible answer for “why would she lie?” A Youtube personage recounted a story about a Wal-Mart cashier who had just lost his mother. It was (I think) supposed to be an uplifting story…except for the fact that none of it was actually true. She continues to hold on, claiming her story is true, and that “I just want everyone to know that I am here to inspire people.” Which really says everything we need to know, I think.
        [Source: http://www.dailymail.co.uk/femail/article-3351022/His-mother-alive-Woman-recounted-emotional-moment-Walmart-cashier-broke-work-mom-killed-branded-liar-store.html%5D
        I wonder if Ms. Smith is doing a similar thing to try and connect to people who actually *have* suffered through *real* sexual assault? If so, it’s obviously misguided, but not everyone (even mathematicians) manage to think logically through everything all the time.

        Fortunately, I don’t think we need worry overmuch about Clarence Thomas’ reputation. No one else seems to have picked up the story.

        -Brian

        • shg
          2 November 2016 at 3:21 pm - Reply

          I’m afraid you missed a critical distinction in your analysis. Credibility on cross is always an issue, particularly when the only evidence that any offense occurred is the witness’ testimony. A rap sheet may or may not have a bearing on credibility, depending on the nature of the crime, but regardless, dead people don’t testify because they’re dead.

  • Richard G. Kopf
    31 October 2016 at 6:27 pm - Reply

    A correction and an apology from Kopf,

    I put scare quotes around the words “ethics expert” when referring to the Clarence Thomas Groping Allegations Land in Oversight Vacuum article published by the National Law Journal. The professor cited as an “ethics expert” by NLJ, without quotation marks, is Arthur Hellman. In truth, Professor Hellman is an ethics expert. I make this correction and extend this apology not because Professor Hellman complained, he did not, but rather to correct my mistake.

    Sorry Professor Hellman. All the best.

    Rich Kopf