Apr
3
Why Are Democrats Attacking Justice Thomas?
“The Left’s partisan crusade to force Justice Thomas off of cases is not based on real recusal standards but on politics.” — Carrie Severino, president of Judicial Crisis Network
At the very least, Democrats want Justice Clarence Thomas to recuse himself from cases regarding the events at the Capitol on Jan. 6, 2021. (Though, if they get their wish, do you think they will stop there?)
The reason they are demanding this has to do with his wife, Virginia “Ginni” Thomas, a conservative activist who traded multiple texts with then-White House Chief of Staff Mark Meadows, urging the Trump administration to stand strong in challenging the 2020 election results. Since the “stolen election” seems to be the primary motivating factor for many who “stormed” the Capitol that day, the assumption is that Justice Thomas can’t help but be influenced by his wife’s involvement in the resistance.
Not that Democrats liked Thomas before this — not by a long shot. But, what appears to be the tipping point occurred earlier this year, when he was the lone dissenting vote in a SCOTUS ruling which “allow[ed] the House select committee investigating the January 6 attack to obtain access to contested White House records.” Thus, the “bad optics” of an apparent conflict of interest and subsequent calls for recusal going forward.
Roughly two dozen House and Senate Democrats sent a letter to the Supreme Court — specifically, Thomas and Chief Justice Roberts — urging Thomas to “recuse himself from any future cases involving the Jan. 6, 2021, attack on the Capitol or efforts to overturn the 2020 election, along with a ‘written explanation for his failure to recuse himself’ in previous cases on those subjects.” (The Washington Post) The letter also demanded Roberts institute “significant ethics reform at the Supreme Court.” Signers of the letter included, for example, Sen. Dianne Feinstein (CA), Sen. Amy Klobuchar (MN), Sen. Elizabeth Warren (MA), Sen. Cory Booker (NJ), Progressive Caucus Chair Rep. Pramila Jayapal (WA), and “squad” member Rep. Cori Bush (MO).
Of course, legally speaking, Thomas does not have to recuse himself. As Laurel Duggan of The Daily Signal reports,
“A Supreme Court statement of its recusal policy, signed by seven justices [including Thomas] in 1993, said justices should not recuse themselves from cases where relatives do not have a substantial financial or personal interest in the outcome or are not serving as an attorney in the case.”
These were essentially guidelines that the signees agreed to, but the document was not official and, as far as I can tell, there are no self-imposed penalties for not following said guidelines.
Conservative attorneys have objected to this treatment of the Thomases. For example, Harmeet Dhillon, chair of the Republican National Lawyers Association, has said,
“Ginni Thomas is a private citizen who is entitled to her own opinions independent of her husband. To impart to a spouse his wife’s private conversations as a recusal factor is both unprecedented and grossly sexist. Ms. Thomas is neither a litigant, nor a lawyer, nor even a material witness, to any case presently before the court, nor is she likely to be, despite how hard the left is straining to make this sexist trope into an issue.”
Mark Paoletta, who served as general counsel in the Executive Office of Management and Budget in the Trump administration, observed that:
“If this new standard were applied to other judges or justices, there would be scores of ethical violations.”
Furthermore, as NPR’s Nina Totenberg has pointed out,
“The modern day code of judicial conduct assumes that married couples have separate careers and opinions. Legal ethics experts have long taken the view that while Ginni Thomas is an outspoken conservative activist, her husband is able to act as an independent judge on matters that come before the court, even matters that may touch on subjects of interest to Ginni Thomas.”
On the other hand, Totenberg also quotes a few experts in legal and judicial ethics who agree that in this case a line has been crossed. Charles Geyh of Indiana University put it succinctly:
“‘There’s a difference between having a spouse who has an active interest’ in seeing the law changed and ‘someone who is actually part of the story’ of the case. ‘I don’t know how someone could be impartial when their spouse is part of the record that may be before the judge.'”
So, Justice Thomas appears to have no legal obligation to recuse himself, and there is no way to force him to do so. Plus, as Totenberg notes, “nobody can substitute for a recused Supreme Court justice; a tie vote leaves the case unresolved, and unnecessary recusals may undermine the interests of justice.” This could actually work in the Democrats’ favor.
The matter then comes down to ethics and confidence in Thomas’ ability to compartmentalize. Citing Thomas’ longstanding professional integrity, House GOP Minority Leader Kevin McCarthy thinks Thomas should make this decision on his own, presumably meaning without being pressured by Congress or his fellow justices. Several Democrats, including House Speaker Nancy Pelosi, agree that it is up to an individual justice whether or not to recuse himself under such circumstances.
If Thomas continues to not opt for recusal on the matters in question, what then?
Rep. Alexandria Ocasio-Cortez (NY) has made it clear via a series of tweets that Thomas should resign or face impeachment. Reps. Nydia Velázquez (NY), Veronica Escobar (TX), and Hank Johnson (GA) also called for resignation, and Rep. Ilhan Omar (MN) is also pushing for impeachment. (Of course, impeachment does not necessarily end in removal from office, but I’m sure AOC and her comrades would love to make that happen.) In addition, a MoveOn petition has gathered over 140,000 signatures from the public, demanding the same thing — immediate resignation, else Congressional investigation and impeachment.
Senate Minority Leader Mitch McConnell is having none of it. He has dismissed calls for Thomas to resign or recuse himself, calling such demands “performative outrage”, an “inappropriate pressure campaign”, and “a political hit”. Speaking from the Senate floor, McConnell declared,
“The left’s quest to delegitimize the Supreme Court found its latest outlet. Washington Democrats are now trying to bully this exemplary judge of 30-plus years out of entire legal subjects, or off the court entirely.”
The Democrats (or, at least, the more extreme among them) manufactured the whole Anita Hill scandal to sabotage his appointment to the Supreme Court back in 1991. He has proven that he is the most consistently conservative and originalist, and now the most experienced, member of the Court, and the Left hates that. Especially since he is a Black man. So, it really shouldn’t be that surprising that they would capitalize on this latest opening to ruin his reputation, neutralize his effectiveness, and possibly end his career as an Associate Justice of the Supreme Court. If they can do so relatively quickly, particularly if it means replacing him with a “progressive” (or even a moderate/centrist), all the better for their agenda.
