Now That Judge Jackson Has Settled One SCOTUS Recusal Issue, Another, Much Tougher One, Looms, Part I: The Issues

 

As tracked here at Ethics Alarms, presumptive Supreme Court Justice Ketanji Brown Jackson faced a serious conflict of interest problem in her position as a member of Harvard’s Board of Overseers because her first case on the Court was likely to involve Harvard’s constitutionally questionable affirmative action admission policies. She properly ended speculation by announcing at her confirmation hearing that she would recuse herself from the case. It was clearly the ethical move, but, as an almost certain member of the land’s highest court, she was not required to make it by law or binding regulation.

Now, not for the first time, progressives, activists, Democrats and Clarence Thomas haters are calling for the arch-conservative Justice to recuse himself, this time from all cases involving the January 6 Capitol riot (or as the mainstream media and Democrats will falsely tell you daily, the “deadly insurrection.”) Should he? The ethical considerations are more complicated and uncertain than in Jackson’s situation.

The reason for the alleged conflict is the activities and texts of Thomas’s wife, Ginni, a long time extreme conservative activist. Her vocal opinions as a pundit and advocate have long been used by the Left to argue that Thomas needs to recuse himself from just about every case with a strong Left-Rights divide: it’s been an ongoing strategy to neutralize Thomas using his wife that began almost from the second he was voted onto the Court. Thomas had persistently ignored the issue. This time, however, Ginni’s involvement in an issue likely to come before the Court is more direct than before.

In Part I, I will just lay out the issues, and save the analysis for Part 2.

Issue I: When Does a Spousal Relationship Require Recusal?

Obviously when a family member is or may be a direct and substantive beneficiary of a SCOTUS decision, the justice must recuse as a matter of integrity. For many reasons, some of them valid, however, the question of whether a spouse’s activities and opinions creates a conflict of interest for a judge or lawyer remains in limbo. In an interview this month with The Washington Free Beacon, Ginni. Thomas said that she and her husband kept their professional lives separate. “Clarence doesn’t discuss his work with me,” she said, “and I don’t involve him in my work.” I don’t think anyone believes that, but it is a necessary (some say) fiction to keep the advances of the women’s right movement in place. If professional women are not to be regarded as under the undo influence of their husbands, then husbands must not be seen as under the influence of their wives. To assume otherwise would mean that every female job applicant would be subject to questioning about her spouse’s activities, passions and beliefs, as well as to being asked about the nature of their relationship.

The political Left, where feminist roam, has been particularly adamant about this approach, even when it is obviously untrue. A landmark example was in 2011, when the (almost entirely left-leaning) legal ethics establishment pronounced that the fact that Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed by him before he ruled against Proposition 8, California’s voter-approved gay marriage ban. They argued that his de facto gay male spouse’s opinions, interests and influence on the judge created no reasonable doubts about his impartiality. I didn’t believe that, and I don’t think they did either. Judge Walker didn’t even disclose his domestic relationship before ruling, arguing that it was irrelevant.

I wrote, here, that it obviously wasn’t irrelevant, and that it was hypocritical that these same ethicists excoriated Justice Scalia when he insisted that his friendship with Vice-President Cheney created no conflict of interest when Scalia ruled on a case where the VP was named party. (My two posts on that controversy are here, and here.) My position, consistent as an ethicist should be, was and is that both Scalia and Walker should have recused, and for the same reason: many would reasonably doubt their objectivity no matter how vigorously they maintained it.

Issue 2: When does a Supreme Court Justice have an ethical obligation to recuse?

The New York Times, as usual, botches its explanation of this ethics question. It states,

All federal judges, including Supreme Court justices, are subject to a federal law on recusal.

The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

But that is incomplete and misleading, and thus “misinformation.” By the standards used by Twitter and Facebook against conservative voices, the Times’ accounts should be suspended.

The Supreme Court is NOT subject to that law, for several reasons. The main one is that it has never been enforced, because legal experts agree that it would be immediately struck down as an unconstitutional violation of the separation of Powers. Another is a void for vagueness question: “reasonable” to whom, another judge, an objective member of the public, or a biased activist? Prof Turley has specifically stated that the Supreme Court isn’t bound by the law, though he feels it should be:

The Supreme Court is not just an island protected from modern technology but an island protected from judicial ethics. Both are by design of the justices themselves. In a self-serving interpretation, justices have long insisted that, since no lower jurist can possibly judge their conduct, they cannot be subject to judicial ethics like all other judges. It is an interpretation at odds with the highest courts of other countries. It is also at odds with common sense.

The Justices insists that they can only be their own judges and that they have voluntarily agreed to “refer” to the Code of Judicial Conduct for guidance. Often it appears that the justices honor the code primarily in the breach. Justices routinely appear in public speeches where they have discussed pending issues and cases. Justices have attended political fundraisers and have ruled in cases where they or their spouses have financial interests.

Congress should require the adoption of a formal code of ethics, including a process by which citizens can file complaints against justices. For those justices who insist on remaining their own judges of conduct, they have the same option as camera-phobic jurists: they can retire. In Federalist 10, James Madison observed that “No man is allowed to be a judge in his own cause.” However, there are nine such people who demand precisely that unilateral power when it comes their own ethics.

But literally, “you can’t get there from here.” The Court does decide what it’s ethics requirements are, and that’s that. The “shall” in the law is a joke, and if the law ever came before the Court, it would make that very clear.

Issue 3: “What’s going on here?

The discussion in this case is poisoned by the long-standing progressive animus against Thomas. His critics have put themselves in the position of “The Boy Who Cried Wolf” by trying to use Ginni as a wedge to neutralize Thomas when there was little justification for the conflict of interest argument. This time, their case has validity, but they have no credibility.

Issue 4: “What did Ginni do?

Mark Meadows, former President Trump’s last White House chief of staff, turned over thousands of documents late last year to the House committee examining the January 6 riot. Included in them were text messages from Mrs. Thomas. In them, she urged Meadows to take steps to challenge the validity of apparent results the 2020 presidential election, which she called a “heist.” She also suggested the lawyer who should be put in charge of that effort.

I’ll try to sort all this out in Part 2.

12 thoughts on “Now That Judge Jackson Has Settled One SCOTUS Recusal Issue, Another, Much Tougher One, Looms, Part I: The Issues

  1. If everyone is wise, they’ll just let this one go. If the left presses this, they will be setting themselves up to get very badly burned later on.

    • The problem is, they won’t. Clarence Thomas has long been a focus of left-wing hatred because he is black and doesn’t live on their ideological plantation.

      The Left long ago decided that one’s skin tone made a certain political/legal worldview mandatory. This is why Thomas, Tim Scott, Herman Cain, Ben Carson, and others are often erased.

      Also, quite frankly, since Vaughn Walker didn’t recuse on the gay marriage case, then why should Thomas recuse on this one? As Kurt Schlichter put it so many times, there can be only one set of rules, and the Left seems to have settled on “by any means necessary.” I, for one, was raised to be smarter than to unilaterally disarm.

      • Walker STOOD TO BENEFIT from his own ruling in the gay marriage case. I don’t see how Clarence Thomas stands to benefit here. Yes, you’re right, Clarence Thomas is roundly hated by the left, because he dared to break with them.

        The days of black people being bound in metal chains and beaten by brutal overseers are long over, but sometimes, just like the symbols on a piece of cloth or on a chain around your neck aren’t as important as what those symbols mean in your heart, for good or for ill, sometimes chains of iron don’t mean as much as chains of thought, that tie you to one set of beliefs, one set of ideas, one set of principles, and won’t let you break away. Overseers kept slaves in line with whips of leather and hemp. The left’s spokesmen try to keep the various ethnic groups, not just the blacks, in line with whips of words accusation and exclusion.

        Erasure? In 1996 Arnold Schwarzenegger made a film called “Eraser,” in which he was a US Marshal who was in charge of making critical witnesses disappear. His tag line was “you’ve just been erased,” and at the end of the movie he ironically repeats it as the bad guys are about to get hit by a train they can’t avoid. The left is like that with everyone they can’t use or can’t use anymore. “You’ve just been erased.” They wanted to erase the Catholics as soon as they could get more votes from pushing abortion. They wanted to erase the Italians as soon as they could get more votes from the young and woke. They want to erase their own past now that it’s become inconvenient. And, as you point out, they want to erase any of those they claim as their own who dare ask a question or wander off the reservation.

        Pop historical quiz, folks: Where have we seen this happen before?

        A. Revolutionary France, where Robespierre guillotined Danton and his adherents for not being sufficiently revolutionary, then got the chop himself for the same reason.

        B. The Ottoman Empire, where the Young Turks decided only one kind of people were wanted and all the rest would be killed or deported.

        C. The early Soviet Union, where Stalin wiped out Trotsky and his adherents, then purged anyone and everyone who displeased him.

        D. Nazi Germany, where unless you were a Nazi or an Aryan, it was a matter of when, not whether, you were going to be put on that train to somewhere we don’t need to talk about.

        E. All of the above.

        • I just checked, as I do every few years. The Democrat official web page, in their history section, still claims credit for women’s suffrage and the Civil rights act.

          “For more than 200 years, our party has led the fight for civil rights, health care, Social Security, workers’ rights, and women’s rights.”

          It’s been a bald-faced lie since I first noticed it in 2008.

  2. No one alleges that Mrs. Thomas is a defendant or a witness in any if the Capitol riots trials.

    For comparison, a federal judge in an appeals case arising from the Kenosha riot in 2020 would have no duty to refuse merely because his wife tweeted #BlackLivesMatter or #HandsUpDontShoot or even called the riot a fiery but mostly peaceful protest.

    He would absolutely have to recuse if his wife was a party to the appeal.

    He may have to recuse if his wife was a witness, depending on the appeal.

    • So Ginni Thomas wasn’t an actual rioter. Sheesh, what a standard, Michael.

      Nobody here is even discussing the issues Jack brought up. All I see is resentment against the “Democrat Party.” (Stating it that way is a tell, of course.) I have substantive issues with both of our parties and a whole boatload of politicians from federal to local, but that’s besides the point.

      Ginni Thomas’ text messages are – obviously – extremely troubling. Yes, she is the spouse of a member of the, excuse the scare-caps, UNITED STATES SUPREME COURT. And don’t give me that it’s unfair to women to say that wives of such extremely high-ranking officials may be constrained at all in their political activities. Very soon almost half the Supreme Court will BE women. (Yes, I know the definition – I just thought I’d throw that in.) The ethical issues here are ludicrously obvious, no matter how the technicalities are sorted out in Jack’s next post.

      • After RBG’s open attacks on Trump in 2016, then hailed, I believe in Slate, as heroically cashing in her legacy early to prevent a Trump presidency, I’m not interested in criticism of spouses of sitting justices who dare to have opinions, albeit wacky ones. Not even a little bit.

        • Ruth Bader Ginsburg’s husband, Martin, was famous for his cooking skills. Clarence Thomas’s wife, Ginni, is famous for other things. The issue here is recusal. We already know that Ketanji Brown Jackson, assuming she’s confirmed and seated, will not rule on the Harvard case, stripping “liberals” of a probable vote in a matter where it seems Harvard is dead to rights on its discrimination against Asians. Anything regarding January 6 (where I want a fair, objective ruling, not a hysterical, MSNBC-infused reign of revenge) clearly bumps straight up against Ginni Thomas’ striking, brazen advocacy in the other direction. Saying you’re not interested in what she did as the spouse of a sitting Justice doesn’t cut it. And thanks for your recollection of something that appeared in Slate. I try to keep up, but I haven’t read that source in years.

          • I am simply applying our longstanding legal, moral, and ethical traditions regarding judicial recusal to this issue.

            The short form is this- unless an petition for a writ of certioraribefore the Supreme Court presents a question regarding Mrs. Thomas’s texts, the texts can not possibly be a basis for Justice Thomas to recuse.

            I apply this in an even-handed manner. Suppose the wife of an appellate court judge in Wisconsin publicly stated that the rioters in Kenosha were heroes who fought for racial justice. That statement would not require her husband to recuse himself from an appeal arising from the Kenosha riots, with the possible exception of the wife’s statement being raised as a question presented on appeal.

  3. This smacks of the argument against women’s right to vote. Because married men would then get two votes. Surprise! My husband and I don’t always vote the same way. Mrs. Thomas probably has opinions that sometimes differ from her husband’s. Unless she is directly involved with the case, her opinions are just that. Her opinions.

    The presumption that Justice Thomas cannot look at the facts and decide on the law is insulting. Yes, justices have based their opinions on their agenda rather than the law in the past (cough, Justice Robert’s, cough). Unless it can be proven that Justice Thomas cannot be impartial, no recusal is necessary.

    • It wasn’t that long ago that the left was lamenting that married women and women in relationships had been unduly influenced by the men in their lives and that’s why Hillary lost. Sure, when supposedly the women are always the ones really in charge and can cut off the sex or banish the men in their lives to the couch until they see it their way.

      • You’re right. After lauding the power of women, we were suddenly too weak minded to not vote for HRC. It couldn’t possibly be that I rejected HRC, her agenda, and corruption. In fact my husband and I voted differently in 2016. He voted for Trump. I voted for Johnson because I couldn’t bring myself to vote for Trump. In 2020 I gladly voted for Trump because while his personality has always grated on me, his policies were what I wanted.

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