Challenging a judicial norm

WASHINGTON -- As Virginia Thomas tells it in her soft-spoken, Midwestern cadence, the story of her involvement in the “tea party” movement is the tale of an average citizen in action.

“I am an ordinary citizen from Omaha, Neb., who just may have the chance to preserve liberty along with you and other people like you,” she said at a recent panel discussion with tea party leaders in Washington. Thomas went on to count herself among those energized into action by President Obama’s “hard-left agenda.”

But Thomas is no ordinary activist.

She is the wife of Supreme Court Justice Clarence Thomas, and she has launched a tea-party-linked group that could test the traditional notions of political impartiality for the court.

In January, Virginia Thomas created Liberty Central Inc., a nonprofit lobbying group whose website will organize activism around a set of conservative “core principles,” she said.

The group plans to issue score cards for Congress members and be involved in the November election, although Thomas would not specify how. She said it would accept donations from various sources -- including corporations -- as allowed under campaign finance rules recently loosened by the Supreme Court.

“I adore all the new citizen patriots who are rising up across this country,” Thomas, who goes by Ginni, said on the panel at the Conservative Political Action Conference. “I have felt called to the front lines with you, with my fellow citizens, to preserve what made America great.”

The move by Virginia Thomas, 52, into the front lines of politics stands in marked contrast to the rarefied culture of the nation’s highest court, which normally prizes the appearance of nonpartisanship and a distance from the fisticuffs of the politics of the day.

Justice Thomas, 61, recently expressed sensitivity to such concerns, telling law students in Florida that he doesn’t attend the State of the Union because it is “so partisan.” Thomas, who was nominated by President George H.W. Bush, has been a reliable conservative vote since he joined the court in 1991.

Experts say Virginia Thomas’ work doesn’t violate ethical rules for judges. But Liberty Central could give rise to conflicts of interest for her husband, they said, as it tests the norms for judicial spouses. The couple have been married since 1987.

“I think the American public expects the justices to be out of politics,” said University of Texas law school professor Lucas A. “Scot” Powe, a court historian.

He said the expectations for spouses are far less clear. “I really don’t know because we’ve never seen it,” Powe said.

Under judicial rules, judges must curb political activity, but a spouse is free to engage.

“We expect the justice to make decisions uninfluenced by the political or legal preferences of his or her spouse,” said New York University law professor Stephen Gillers, an expert on legal ethics.

Virginia Thomas declined to comment in detail about her plans for LibertyCentral.org, which she said would fully launch in May. In a brief phone interview, she did not directly answer questions about whether she and her husband had discussed the effects her role might have on perceptions of his impartiality.

“I don’t involve myself in litigation. Are you asking that because there’s a different standard for conservatives? Did you ask Ed Rendell that question?” she said, referring to the Democratic governor of Pennsylvania, who is married to a federal appellate court judge.

Virginia Thomas has long been a passionate voice for conservative views. She has worked for former Republican Rep. Dick Armey of Texas and for the Heritage Foundation, a conservative think tank with strong ties to the GOP.

In 2000, while at the Heritage Foundation, she was recruiting staff for a possible George W. Bush administration as her husband was hearing the case that would decide the election. When journalists reported her work, Thomas said she saw no conflict of interest and that she rarely discussed court matters with her husband.

“We have our separate professional lives,” she said at the time.

In fall 2008, when Thomas joined Hillsdale College as an administrator, she called the school’s Washington campus “the safest place for me to be when it comes to conflicts.” Her new endeavor could signal a return from that shelter.

Although Liberty Central is a nonpartisan group, its website shows an affinity for conservative principles. Her biography notes that Thomas is a fan of Rush Limbaugh and Mark Levin, author of “Men in Black: How the Supreme Court is Destroying America.”

“She is intrigued by Glenn Beck and listening carefully,” the bio says.

As in her appearance at the panel discussion, the website does not mention Clarence Thomas.

The judicial code of conduct does require judges to separate themselves from their spouses’ political activity. As a result, Marjorie Rendell, a judge on the 3rd U.S. Circuit Court of Appeals, has stayed away from political events, campaign rallies and debates in Pennsylvania. Her husband discussed such issues in his first campaign for governor.

Since then, Judge Rendell has sought the opinion of the judiciary’s Committee on Codes of Conduct when a case presents a possible conflict of interest involving her husband’s political office, she said.

Law professor Gillers said that Justice Thomas, too, should be on alert for possible conflicts, particularly those involving donors to his wife’s nonprofit.

“There is opportunity for mischief if a company with a case before the court, or which it wants the court to accept, makes a substantial contribution to Liberty Central in the interim,” he said.

Justice Thomas would be required to be aware of such contributions, Gillers said, adding that he believes Thomas should then disclose those facts and allow parties in the case to argue for recusal.

But it would be up to Justice Thomas to decide whether to recuse himself. He could not be reached for comment.

As a 501(c)(4) nonprofit, Liberty Central can raise unlimited amounts of corporate money and largely avoid disclosing its donors.

Because of a recent Supreme Court decision, Citizens United vs. Federal Election Commission, the group may also spend corporate money freely to advocate for or against candidates for office.

Justice Thomas was part of the 5-4 majority in that case.