Now That Judge Jackson Has Settled One SCOTUS Recusal Issue, Another, Much Tougher One, Looms, Part 2: The Decision

Under normal circumstances—but what is normal any more?—my conclusion regarding whether Clarence Thomas should or should not recuse himself in any cases involving the January 6 riot (which the Washington Post again calls “an insurrection” today)because of his conservative activist wife’s vocal support of vigorous responses by the Trump White House in response to what she felt was a fraudulent 2020 election would follow the same reasoning that my analysis of Justice Scalia’s recusal controversy trod almost exactly 18 years ago. The question then was whether Scalia’s participation in a duck hunt with Vice-president Cheney and his pals created a sufficient conflict of interest to trigger the “appearance of impropriety” standard that is supposed to govern judicial decisions whether to recuse, since Cheney was technically—but only technically—a party to lawsuit that had ended up in the Supreme Court.

Scalia adamantly insisted that there was no conflict and no impropriety, and authored an impressive memorandum to support his position. He indeed judged that case. I wrote in part,

Those who have criticized Scalia for his stance on this controversy have an obligation to read the Justice’s memorandum. They are sure to learn some things, such as why it is unwise to trust media accounts regarding anything more complicated than your typical Sponge Bob Square Pants episode; what constitutes a legally persuasive argument and why even Scalia’s ideological foes admire his sharp intellect and lively writing….

[I make] no pretense of being able to match Justice Scalia’s intellect or knowledge of the law. And he makes one especially chilling point: is appearance of impropriety sufficient to force recusal when that appearance is a false illusion created by inaccurate reporting, sloppy analysis, and misinformed reading of the law? It looked like an easy call based on what appeared in the papers; Scalia’s memorandum is a clarification that shows that his position is not just a product of stubbornness, but of careful scholarship. He wins the debate, hands down.

He should still recuse himself….

Scalia is right: there is the potential here for more than one bad precedent, and justices should not permit themselves to be run out of deliberating on politically sensitive cases by partisan misinformation campaigns. But the damage is done. To most of the public, the raw circumstances of the Scalia-Cheney outing will call Scalia’s impartiality into question, and because it is a high profile case, this will damage the public’s faith in the Supreme Court. It isn’t worth it. Americans, even Americans that don’t comprehend the legal requirements of recusal, need to believe in the integrity of the Supreme Court.

Next, the Court should recognize the new political realities of its role, and devise a review system that would make the whole court the arbiter of whether one of the brethren has a conflict, or an unacceptable appearance of one. Such a system would have made Scalia’s current dilemma less of a lightning rod for criticism.

For now, though, Justice Scalia needs to face facts: he may be right on the law, but he’s a dead man walking.

I like that post a great deal; I think I was right. (I also look wistfully back at the time when I could spend up to a week a week polishing a single post.) The parallels between Justice Thomas’s Left-and-news media contrived conflict is similar to Scalia’s. But if you think that means that I now must side with those who are pushing for Thomas’s recusal, you are wrong.

The differences are these in Scalia’s case, there were not going to be other cases on the horizon in which his friendship with Dick Cheney would raise conflict issues as defined by the infamous duck hunt episode. In the case of Ginni Thomas, those trying to neutralize Thomas’s influence on the Court have been trying to claim that her separate career as a right-wing activist is an ongoing conflict almost since the moment he was confirmed. It has always been a bad faith argument, and politically rather than judicially motivated. If Thomas capitulates and recuses this time, he will have created his own precedent to force him to avoid the same “appearance of propriety” again and again. As this “appearance,” like the appearance in Scalia’s case, is primarily a result of the biased media and Thomas-hating partisans, such a result would be repugnant. It would mean that dishonest public discourse has succeeded in its goal. The two political cartoons above give you a sense of how long this has been a theme of the progressive/Democrat/mainstream media alliance.

The other dangerous precedent Thomas’s recusal would likely set is a new trend of making spouses in the political, legal and judicial professions officially responsible for what their partners do, write, and say. I discussed this issue in Part I. I think the left-side of the political divide would very quickly come to regret their assault on Thomas based on his wife’s conduct.

Thomas should not recuse.

I should have known if I waited long enough—this post is three days later than I intended—Prof. Turley would opine in essentially the same direction that I was already leaning. In his post on the topic today, he began by reminding us of the recusal controversy: earlier this year, the House’s Jan. 6 committee won an 8-1 victory before the Supreme Court rejecting Trump’s privilege objections to the release of White House materials. The sole dissenting vote was cast by Thomas. Among those materials were Ginni Thomas’s text messages to then Chief of Staff Mark Meadows urging him to use his influence to “stop the steal.” Turley writes,

When Ginni Thomas sent these messages, many Republicans believed the 2020 presidential election was stolen. (Indeed, only 21 percent of Republicans still believe Joe Biden was legitimately elected as president.) She and others were pushing for legal and political action to expose what they saw as voting fraud. I did not share that view and stated in 2020 that there was no evidence in these cases showing systemic fraud.

Democrats in prior — and later — years also have challenged election results and opposed the certification of presidential elections in Congress, and leading Democrats continue to call Trump an illegitimate president. What they did not do, of course, is riot in the halls of Congress — but neither did Ginni Thomas.

His point: as with so much of the circumstances surrounding January 6, Ginni Thomas’s activities have been exaggerated and distorted by partisan propaganda. He then points out that Thomas’s dissenting vote was not as suspicious as the partisans were claiming:

First, Ginni Thomas was publicly supporting Trump in his election and post-election claims; the messages echo her publicly-stated views. Second, Congress was already receiving testimony and statements from figures like Meadows. Even if it did not secure these emails from the White House, it could independently seek Ginni Thomas’s messages, since she is not protected by executive privilege. Thus, a Court injunction would not have necessarily barred such disclosure.

Third, and most notably, the messages were already disclosed. That fact is buried in the New Yorker article, which noted that when the Court was considering the issue, “Meadows had already turned over to the congressional committee some 2,300 texts — and … they included the 29-message exchange between him and Ginni Thomas.”

Nonetheless, Turley concludes that his circumstances in that case might have justified an “appearance of impropriety” recusal, but…

It would not be enough to justify only the second impeachment of a justice in history, or to compel Thomas’s recusal from any further election- or Trump-related cases. The New Yorker cited “shocked” experts saying that Thomas must now recuse himself from a wide range of cases because “his wife … colluded extensively with a top White House adviser about overturning Joe Biden’s victory.” The “collusion” and “scheming” cited in the article was to advocate — just as many others did publicly — for legal and legislative challenges.

Then Turley takes a welcome and much deserved shot at legal ethicist Stephen Gillers, perhaps the best known practitioner in my field, and a stone-cold progressive ally:

One of those experts was NYU professor Stephen Gillers, who declared: “I was prepared to, and did tolerate a great deal of Ginni’s political activism. Ginni has now crossed a line. Clarence Thomas cannot sit on any matter involving the election, the invasion of the Capitol, or the work of the January 6 Committee.”

Conversely, Gillers recently said there was no need for Judge Ketanji Brown Jackson to recuse herself from a Supreme Court case involving Harvard’s use of race for admissions, if she is confirmed as a justice. Thus, Jackson could sit on a case involving Harvard after serving (and continuing to serve in 2022) as a Harvard board member. Yet, according to Gillers, Thomas should recuse himself from any election-related case because his wife advocated for challenges to the election.

In short, you can’t trust Gillers to be objective, which is a disqualifying feature for an ethics expert. Turley is really rolling now…

Much of the ethical analysis seems driven by the characterization of these messages as “collusion” in “overthrowing an election” rather than political advocacy. For example, University of California/Irvine professor Richard Hasen concluded that, “given Ginni Thomas’s deep involvement in trying to subvert the outcome of the 2020 election based upon outlandish claims of voter fraud, and her work on this with not only activists but the former president’s chief of staff,” a sweeping recusal is necessary since “his spouse’s reputation, and even potential liability, is at stake.”

What liability? Ginni Thomas insists she was not trying to “subvert the outcome of the 2020 election” but, instead, to challenge what she viewed as a rigged election. She was wrong, in my view, but that is not a crime — it is protected speech. There is no evidence she advocated or participated in violence on that day, which is the purported focus of the committee. Her “interest” was the same as that of many Republicans who considered the election stolen.

Absent new damning evidence, these messages show constitutionally protected advocacy.

The professor concludes: “Even if Justice Thomas had decided to recuse himself from the earlier decision, there is no reason for him to recuse from any election-related or committee-related cases based solely on these messages from his wife.”

And very good reasons not to.



One thought on “Now That Judge Jackson Has Settled One SCOTUS Recusal Issue, Another, Much Tougher One, Looms, Part 2: The Decision

  1. I reached a similar conclusion.

    As I piinred out in other comments on other posts, public or.private statememts of a judge’s spouse would not require recusal except possibly in an appeal where a question presented is about the statement.

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