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June 28th, 2022

Insight

What if Ginni Thomas were a leftist?

Jeff Jacoby

By Jeff Jacoby

Published April 5, 2022

What if Ginni Thomas were a leftist?
A swelling chorus of Democratic and progressive voices is demanding that Supreme Court Justice Clarence Thomas recuse himself from any cases dealing with the aftermath of the 2020 presidential election or be impeached for failing to do so. The basis of their demand is the political activity of Thomas's wife, Ginni, who has been active for years in conservative political circles and was passionate in her support for Donald Trump.

Like many Trumpian true believers, Ginni Thomas was quick to embrace outlandish conspiracy theories about the election having been stolen from Republicans. In more than 20 text messages between November 2020 and January 2021, she reached out to Trump's chief of staff, Mark Meadows, with exhortations to block Joe Biden from being certified as the president-elect.

Those texts , which were leaked to Washington Post reporters Bob Woodward and Robert Costa, make it clear that on the subject of presidential politics, Justice Thomas's wife is unhinged. She appeared to believe, for example, that the "Biden crime family & ballot fraud co-conspirators" would be arrested and tried before "military tribunals for sedition." She was distraught to see that Democrats were "attempting the greatest Heist of our History." In despair, she wrote that "[w]e are living through what feels like the end of America" and witnessing "the end of Liberty."

As Peter Wehner observes in The Atlantic , Thomas's texts "are a window into a very distorted, very disturbed world . . . a fearful, angry, imaginary world that a significant part of our country, including America's 45th president, inhabits." But others go much further, insisting that Thomas's views should disqualify her husband from hearing arguments in any lawsuit having to do with the election and its repercussions, including those related to the House Committee investigating the events of Jan. 6.

"Of course Clarence Thomas should recuse himself," the Los Angeles Times declared in an editorial last week, urging him to do so "for the sake of fairness and public trust." The left-wing activist group MoveOn — which was formed in the 1990s to oppose the impeachment of President Bill Clinton — launched a petition accusing Justice Thomas of "conflicts of interest in the service of a right-wing agenda" and declaring that he "must resign from the Supreme Court immediately or else be impeached."

A group of congressional Democrats, led by Senator Elizabeth Warren of Massachusetts and Representative Pramila Jayapal of Washington, wrote a letter to the Supreme Court arguing that "given the recent disclosures . . . Justice Thomas's participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements."

Actually, it isn't difficult at all.

To begin with, there is no indication that Justice Thomas had any idea that his wife had exchanged text messages with Meadows in the wake of the election. "We have our own separate careers, and our own ideas and opinions too," Ginni told the Washington Free Beacon . "Clarence doesn't discuss his work with me, and I don't involve him in my work." Absent any evidence to the contrary — no one has provided any — it is fair to assume Ginni's overwrought texts have played no role in Justice Thomas's legal reasoning.

Conceivably a case could be made for holding judges to a standard of rectitude so pure and disinterested that even a mere suggestion of potential partiality should lead to recusal. At a minimum, that would mean that Supreme Court justices should decline to participate in any case involving the president who nominated them. It would mean that justices should recuse themselves from any litigation touching on a public official about whom they have expressed a strong opinion.

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The late Justice Ruth Ginsburg publicly denounced Trump as "a faker" during the 2016 campaign and shuddered that she could not "imagine what the country would be with Donald Trump as our president."

Yet there was no clamor from outraged liberals demanding that Ginsburg sideline herself from any subsequent disputes affecting Trump.

The furor over the Thomases is being ginned up for partisan reasons, and the "he-should-recuse-or-be-impeached" crowd is demanding a degree of purity that judicial ethics rules have never mandated. As former federal prosecutor Andrew C. McCarthy writes, Supreme Court justices are generally not subject to disqualification even over their own activities, not even when they imply clear support for one of the sides in case the court agrees to hear:

Justice Elena Kagan did not recuse herself from the Obamacare case, providing the critical vote to uphold it despite having served as President Obama's solicitor general when the administration was formulating the legal strategy to defend the Affordable Care Act.

Justice Stephen Breyer has been aptly described as the primary architect of the federal sentencing guidelines. He steered them through Congress in 1984 as the Senate Judiciary Committee's chief counsel before serving, as a federal appeals court judge, on the Sentencing Commission that created the guidelines. Yet, after being appointed to the high court by President Clinton, Breyer declined to recuse himself when the Supreme Court weighed the constitutionality of the guidelines. Indeed, he wrote a 5–4 majority opinion in 2005 that sustained the guidelines scheme.

Federal judges are required to disqualify themselves from proceedings, according to the first sentence of the relevant statute , whenever their "impartiality might reasonably be questioned." The statute then itemizes the specific circumstances that can trigger such a determination. Among them: having acted as a lawyer for one of the litigants, having a financial stake in the outcome of the case, or having a personal prejudice concerning a party in a proceeding.

Ginni Thomas's political activism and rhetoric may be inflamed, but they don't come close to activating those triggers. She is not a party to any case before the high court, she does not represent any such party, and she has not authored an amicus brief in any election-related litigation. Her over-the-top texts to Meadows are a reflection of her own hardline political views. Their link to her husband's jurisprudence is nonexistent.

Clarence and Virginia (Ginni) Thomas have been married for 35 years.

Thirty years ago, seven Supreme Court justices issued a "Statement of Recusal Policy" that addressed claims similar to those being raised by Thomas's detractors now. It specified that a justice should not recuse because of the previous activities of a family member who is not involved with a case before the court and has no financial stake in its outcome. "Even one unnecessary recusal impairs the functioning of the court," the justices wrote. "In this court, where the absence of one justice cannot be made up by another, needless recusal deprives litigants of the nine justices to which they are entitled."

There have been any number of times that federal appellate judges have ruled in cases in which their spouses' points of view were well known. In 2013, as Jason Riley noted in The Wall Street Journal , Chief Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals decided "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. . . . 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."

If Ginni Thomas were a fervent and outspoken progressive and a passionate Biden supporter, would Democrats and liberals be demanding that her husband disqualify himself from sitting in judgment on cases tied to the 2020 election? If Justice Thomas were married, like Kellyanne Conway, to a spouse who reviles Trump and makes no attempt to hide it, would MoveOn be petitioning for his resignation or impeachment? It seems to me the answer is obvious.

The current hair-on-fire shrieking about Justice Thomas and his wife is mere demagoguery. This is hardly the first attempt by the left to weaponize groundless ethics charges to tarnish the reputation of the nation's first, and so far only, conservative Black Supreme Court justice.

For nearly 100 years, the Canons of Judicial Ethics have obligated every judge in America to "not be swayed by partisan demands, public clamor, or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism."

Thomas is not going to recuse himself from cases arising from the last presidential election, nor is he going to resign, nor is he going to be impeached. He knows that his position requires him to tune out the political screeching that accompanies so many of the court's high-profile cases, regardless of whether that caterwauling comes from a left-wing "Squad" member or his right-wing spouse. His long tenure on the nation's highest court has been characterized by a fierce independence and a willingness to dissent — alone, if necessary.

The current uproar will pass, and Thomas will do his job.

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