The Left’s Bad Faith Recusal Argument Targets Justice Thomas for His Principles and Success

When is an argument about ethics really about something else? When it has to do with Clarence Thomas.

You would think that the upcoming Supreme Court arguments in Trump v. Anderson, the case that will decide whether the former president will be allowed to appear on the Colorado primary ballot, was hot-button enough. But the Left is trying to turn it into another front in their perpetual war on Justice Thomas.

Faced with a Supreme Court that for the first time in living memory is composed of a majority of originalists, and hampered by the failure of court-packing plans to gain steam, the Left is now trying to gin up interest in pseudo-ethics issues on the Court. It’s a cynical strategy to dull the influence of a Court they can’t control and a long-shot attempt to strategically remove justices from key cases. It has never truly been about ethics, of course, but is rather a transparent play for power that targets conservative justices in general and Justice Thomas in particular.

Democrats have long been fixated on besmirching Thomas. We saw it in the most disgusting campaign of vilification in the history of Supreme Court nominations up to that time and they’ve never let up. In fact, attacks on the justice have accelerated lately, not because of any change in his behavior, but for the simple reason that, as the leader of a new originalist majority, he is more dangerous to the Left than ever.

Now Democrats have turned their focus to attacking his wife Ginni for—if we skip the hype and get to the basics—having political opinions and a job. They are exploiting the incendiary subject of the 2020 presidential election and Ginni’s opinions about it to force her husband to recuse himself in various Trump-related cases. The problem is such recusal isn’t proper either under longstanding Supreme Court policy or the Court’s newly-adopted Code of Conduct. Having an opinionated spouse simply doesn’t—and shouldn’t—trigger recusal.

It’s telling that recusal demands by House Democrats December and last month are being led by Rep. Hank Johnson of Georgia, whose theories about Thomas’ recusal obligations make as much sense as his other infamously nutty statements. He has, for example, suggested that a military buildup would risk making Guam “so overly populated that it will tip over and capsize;” likened Jewish Israeli settlers in disputed territories to “termites;” and compared parents who recently protested during school board meetings across the country to January 6 rioters.

Rep. Jamie Raskin of Maryland took a different and more ominous tack when he recently asserted that Justice Thomas “absolutely should recuse himself” because of his wife’s activities or views and then threatened: “The question is, what will we do if he doesn’t?” It sounds like Raskin was taking a page from Senator Chuck Schumer’s playbook when he stood on the steps on the Supreme Court and threatened Justices Neil Gorsuch and Brett Kavanaugh as the Court was hearing arguments in a 2020 abortion case.

It’s hard to know where to begin to point out the double standard in play here.

As recent Supreme Court justices go, no one has presented more issues than Justice Ruth Bader Ginsburg. Her husband Marty, though he was a prominent tax lawyer, was never subjected to the newly-invented standards Democrats are trying to apply to Thomas. Justice Ginsburg participated in cases touching on areas her husband and his firm dealt with (though obviously not in cases in which he was directly involved). What’s more, as I have previously addressed in greater detail, she participated in 21 cases during the 1990s in which her husband Marty had actually invested in companies involved in the litigation—a blatant violation of the federal recusal statute. Is it any coincidence that these newly-concocted recusal standards weren’t floated while Ginsburg was on the Court?

As politically engaged judicial spouses go, Justice Thomas is not even in the same category as Judge Nina Pillard of the D.C. Circuit or the late Judge Stephen Reinhardt of the Ninth Circuit. Both sat on cases in which the ACLU participated, despite having spouses who worked for the activist group. Or Judge Marjorie Rendell of the Third Circuit, who before taking senior status was married to Ed Rendell, the mayor of Philadelphia, chairman of the Democratic National Committee, and governor of Pennsylvania. Spouses do not get more political than when they chair a national party or get elected to high office.

Successful people often surround themselves with successful people. As I have said before, I do not believe a single vote or official action of any of the justices was changed as a result of their relationships with wealthy people or influential organizations—or that Justice Ginsburg’s cases of direct conflict involving her husband’s stock holdings were anything but inadvertent. But the fact of the matter is that if the current ethics hawks were truly in it for the ethics, they’d be holding these other judges to their newly stringent standards as well. They clearly have a different motivation.

Justice Thomas has been a fearless defender of originalism on the Court for more than three decades—a jurist who has endured long enough to see several of his positions vindicated since the days when he was outnumbered and at times alone. It is no mystery why a justice who objectively does not present the conflict questions raised by other judges would be singled out by those who dislike the current Supreme Court. The Left long ago set out to attack the one black man on the Court, going back to the “high-tech lynching” motivated by hostility to those who “deign to think for themselves,” as the justice noted during his nomination hearings. His persistence in conducting himself contrary to the Left’s agenda has kept the attacks coming. His success has been reason for them to double down.