Hypocrisy Run Amok: The Left Calls for Justice Thomas to Resign or Recuse or Be Impeached.
Disclosure: it is very difficult, if not impossible, for me to be objective or impartial when it comes to the subject of Justice Clarence Thomas in view of the fact that I consider his 30-year tenure on the High Court to be one of the most brilliant and productive terms of service on the Court in its history. Added to that is the fact that My Lady and I have had the inestimable good fortune to have met the Justice on two separate occasions sponsored by the American Inns of Court Foundation and the best way to describe that experience is that once you have met him, and heard that boisterous, good-natured laugh of his, you too will almost certainly be affected the way we were.
That said, one must note that when AOC, Ilhan Omar and Amy Klobuchar all immediately agree to make similar statements about the Justice and calling for his resignation, impeachment or recusal from hearing cases related to elections, one can feel fairly comfortable in the knowledge that there are no grounds whatsoever, legally, morally, ethically or otherwise, for any of those pronouncements from the Loony Wing of the far-left party.
Two excellent pieces appeared on this latest exercise in the politics of personal destruction in the Wall Street Journal, one by the editors and the other by one of our favorite authors and columnists, Jason Riley.
Riley’s op-ed sets the stage for how extreme the hypocrisy can get when the left is driven to distraction by one who is a real threat to their entire agenda, and no one fits that description more perfectly than Justice Thomas. He begins his discussion:
“We are long past the day when a wife’s opinions are assumed to be the same as her husband’s.”
So argued Stephen Gillers, a law professor at New York University, in 2013. If the professor’s name sounds familiar, it’s because he’s been cited by seemingly every major media outlet since news broke last week that Virginia Thomas, wife of Justice Clarence Thomas, sent text messages to Donald Trump’s White House chief of staff Mark Meadows urging him to fight the 2020 election results.
The Los Angeles Times described Mr. Gillers as a “judicial ethics scholar,” and the New York Times dubbed him “one of the nation’s foremost legal-ethics experts.” But it turns out that the professor’s ethics, like those of a lot of liberal Democrats these days, are situational. In 2013 he was defending a decision by late-Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals not to recuse himself from a case involving the American Civil Liberties Union, even though Reinhart’s wife, Ramona Ripston, had served as executive director of the ACLU for Southern California.
“Ms. Ripston’s opinions, views and public pronouncements of support for the district court opinion . . . do not trigger any reasonable basis to question Judge Reinhardt’s ability to honor his oath of office,” asserted a friend-of-the-court brief on behalf of Mr. Gillers and four others. “A contrary outcome would deem a judge’s spouse unable to hold any position of advocacy, creating what amounts to a marriage penalty.”
Reinhardt had a well-earned reputation as one of the most liberal judges on one of the nation’s most liberal appellate courts. Which might explain why Mr. Gillers and his partisan allies have changed their tune. “ ‘Don’t ask, don’t tell’ is not an acceptable strategy for the Thomases’ marriage,” he’s now telling reporters. “Both have crossed a line and deserve no benefit of the doubt.”
To anyone not wearing ideological blinders, Justice Thomas and his wife are just as deserving of the benefit of the doubt as Reinhardt and his wife were. And there are other examples. Judge Cornelia Pillard of the U.S. Circuit Court of Appeals for the District of Columbia is married to David Cole, national legal director of the ACLU. The husband of Alice Batchelder, a judge on the Sixth Circuit, served as speaker of the Ohio House of Representatives. Marjorie Rendell was an appellate judge when her husband, Ed, served as governor of Pennsylvania and chairman of the Democratic National Committee. When these judges had to recuse themselves from a case due to a conflict of interest, they were trusted to do so.
The editorial reminds us once again, as if we needed reminding, that it may be slightly more prudent to hear the opinions of the Chief Justice of the United States on this issue than those of “The Squad” and the Senator from Minnesota:
Moreover, any decision about recusal is entirely Justice Thomas’s to make. Our own view is that the Justice has what our friends at the New York Sun call the “duty to sit” on these cases, and that recusal would be an abdication of that duty.
The general principle for recusal, listed in the U.S. Code, is that a judge should remove himself from any case in which “the judge’s impartiality might reasonably be questioned.” The Justices follow this principle, but they have an obligation that doesn’t apply to other judges. “Lower court judges can freely substitute for one another,” wrote Chief Justice Roberts in addressing the recusal issue in his 2011 annual report on the federal judiciary.
“But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership,” the Chief continued. “A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”
Specifically, the Chief cited the 1924 Canons of Judicial Ethics that address judicial independence. “It provides,” he wrote, “that a judge ‘should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.’ Such concerns have no role to play in deciding a question of recusal.”
Under this standard, a Justice should recuse if he has some financial or significant personal interest in one of the parties to a case. Or if the Justice, a spouse or family member is a party to the litigation. Supreme Court nominee Ketanji Brown Jackson recently said she would recuse from the case challenging Harvard’s admissions standards because she is a member of Harvard’s board of overseers. This is an appropriate reason for recusal.
But Ginni Thomas’s personal views on the election do not make her a party to any case likely to come before the Court. In her text messages in 2020 and 2021 to then White House chief of staff Mark Meadows, she was expressing her personal political views that the 2020 election had been stolen.
Because I feel it is the “fair and balanced” thing to do, I would note that Prof. Gillers responded to Riley’s column in a letter to the editor this morning; it can be found here. I find his reasoning to be rather flimsy and weak but I have already made my lack of objectivity clear so it is there for one to form one’s own opinions on the matter. I will go further and state that I find his statement “that this time the Thomases went too far” to be not only in error, but disgusting.
Perhaps there could be no one better to close out this discussion than the late, deeply revered and respected and sorely missed Justice Antonin Scalia, who had these pithy (as was usual for Justice Scalia) words to say about the issue of recusal:
The late Justice Antonin Scalia took up the issue of media and political criticism in a notable and relevant memorandum on recusal in a 2004 case involving his hunting trip with Vice President Dick Cheney and others. “Recusing in the face of such charges would give elements of the press a veto over participation of any Justices who had social contacts with, or were even known to be friends of, a named official. That is intolerable.”
It is, of course, also intolerable that the execrable “Jan. 6 Committee” deliberately leaked these texts in a move widely considered to be aimed at precisely what is happening - to embarrass Justice and Mrs. Thomas and in the process the Court itself.
It is clear, as the editorial cited above states, that “… any decision about recusal is entirely Justice Thomas’s to make” and I have all the faith in the world that he will make the right decision. It is my fervent hope that he ignores the baying and screeching lunatics of the far-left and continues his invaluable service to the Court - and us - uninterrupted.