The Smearing of Clarence Thomas

D emocrats should not get away with their shameless political gambit to force Justice Clarence Thomas’s recusal from Supreme Court cases based on the political activism of his wife, Ginni Thomas.

Supreme Court justices are not even subject to disqualification over their own activities that bear directly on cases. This never upsets Democrats when the justices have been appointed by Democratic presidents. Consequently, 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. (See Ed Whelan’s analysis, here.)

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, though declaring it advisory rather than mandatory.

The statute that governs judicial disqualification, Section 455 (of Title 28, U.S. Code), extensively addresses recusal on the basis of a spouse’s potential connection to matters in litigation. Essentially, the triggers involve financial or legal stakes in the matter, or some connection to the matter as an attorney. Ginni Thomas’s conservative political activism — up to and including the text messages to Mark Meadows about the 2020 election — does not activate those triggers. If it did, many judges appointed by Democrats would have been disqualified from cases over which they’ve presided despite the political and legal activism of their spouses.

As Ginni (who is a friend of mine) has publicly explained, the Thomases maintain a wall of separation regarding their respective professional lives to avoid conflicts: Justice Thomas does not discuss the Court’s pending cases with Ginni, and Ginni does not involve the justice in her political activities — not that either of them would try to become involved in the other’s work.

Some commentators have eye-rolled in doubt, suggesting it is inconceivable that, for example, Justice Thomas could not have known about his wife’s advocacy on behalf of President Trump’s challenge to the 2020 election. This is both wrong on the merits and misleading in that mere awareness is not disqualifying.

In the legal system, it is common for people to go out of their way not to inform themselves about things that may be well known to many people. To take an obvious example, in high-profile cases, judges instruct the jurors to shun media reports about the case and to refrain from discussing the case with family members and friends. The governing presumption is that jurors follow those instructions. It is not that hard to avoid becoming biased if one is making a conscientious effort to avoid sources of potential bias.

Sometimes, of course, the court’s instructions are not followed, often unintentionally; news dispatches are so ubiquitous that a juror unavoidably learns about them. In such instances, disqualification is not even the preferred course, much less an automatic one. The issue is whether the juror can continue to be fair and impartial, regardless of what may have been heard in media accounts. We don’t require the people we trust to make these important decisions to live under a rock or be bereft of opinions. We demand that, regardless of what they may have seen or heard in the media, they assure us that they will decide the case based on the law and the evidence properly before them in the record. Only when it is established that they are unable reliably to do that is disqualification called for.

When I was a prosecutor, I was occasionally assigned to be part of “clean teams” that were walled off in situations involving the need to withhold legally privileged information from investigators who were on the prosecution team — or I was on the prosecution teams from which the clean team would screen out such “tainted” evidence. No matter how much people might assume that these arrangements are charades, they are not; in my experience, the lawyers involved took them very seriously and complied with their ethical responsibilities.

Moreover, any of us lawyers who are married to other lawyers and/or corporate executives well know that there are no-go areas — attorney-client-privileged information, classified information, corporate secrets, and so on. Spouses who take their responsibilities seriously and who care about protecting their spouses respect these lines. Married couples, for their own good, habitually keep professional activities and confidences off-limits, especially when they can complicate a spouse’s professional life, even if those matters become the subject of intense publicity.

What’s more, spouses often disagree about politics, and, even when they agree about political philosophy, they may disagree intensely about political strategy and tactics. Having a politically active husband or wife is simply not disqualifying for a jurist, for reasons rooted not only in law and our commitment to free speech but in practical experience.

Democrats are well aware of this. If a Democrat-appointed Supreme Court justice were in the eye of a spousal storm, they would be the first to remind us of it. The smearing of Justice Thomas is transparently partisan politics, nothing more.