Column: Now no doubt: Clarence Thomas should be recusing himself
The “stench” has become overpowering.
Until now, and for more than a decade, articles about Virginia “Ginni” Thomas — Mrs. Clarence Thomas — have mainly been about her and her far-right partisan activities. Her husband, the Supreme Court justice, has been implicated only by the questions her politicking has raised generally about his impartiality in politically tinged cases before the court.
But now the court’s longest-serving justice is front and center, properly the main focus in a furor over new details about his wife’s zealous, conspiracy-fueled efforts to overturn the results of the 2020 election and keep Donald Trump in the presidency.
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
At this point, it is implausible that Clarence Thomas has been unaware of his wife’s plotting. His failure to recuse himself in two cases related to the 2020 election and its aftermath strongly appears to violate a federal law requiring the justices to abstain from certain cases.
No longer should there be any question: Thomas must remove himself from any cases that involve lingering challenges to the 2020 election, the participants in the Jan. 6 insurrection at the Capitol or any matter relating to the House committee investigating the attack that day on democracy.
The image of the court is already tainted, and public trust is essential to its authority as the final word on constitutional questions. The justices have no police, no power to enforce their rulings, only the public’s respect for their authority. And Americans now view the court less positively than at any time in many years.
One of the nation’s top authorities on judicial ethics calls the conduct of Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, ‘reprehensible.’
When Justice Sonia Sotomayor publicly warned four months ago of a partisan stench at the court, she was specifically referring to the conservative majority’s tacit support for Republican-led states’ laws that plainly violate decades of the court’s abortion rights precedents. Also looming are divisive decisions on gun rights, affirmative action, environmental laws and more that could harden Americans’ opinions that the court is no less political than the executive and legislative branches.
Now comes the especially foul matter of the Thomases.
The Washington Post and CBS News on Thursday evening reported on 21 post-election text messages that Ginni Thomas wrote to Mark Meadows, Trump’s White House chief of staff. They show that she was more deeply involved than previously known in what essentially was the plotting of a coup against President-elect Biden.
“Do not concede,” she texted Meadows on Nov. 6, 2020, three days after presidential voting ended. “It takes time for the army who is gathering for [Trump’s] back.” On Nov. 10, after news networks called Biden the winner, she implored Meadows, “Help This Great President stand firm, Mark!!!...You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
She passed along bizarre conspiracy theories, including one that the “Biden crime family” was being sent before military tribunals at the Guantánamo Bay naval base for “ballot fraud,” and another, popular among QAnon adherents, about a pro-Trump sting operation involving watermarked ballots. Meadows replied, “We will fight until there is no fight left…Thanks for all you do.”
Four days after the insurrection, she slammed Vice President Mike Pence for not barring Congress’ certification on Jan. 6 of the states’ electoral college votes in Biden’s favor: “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams.”
Then on Feb. 22, 2021, Clarence Thomas dissented when the court rejected a Pennsylvania case from Trump Republicans seeking to throw out some mail-in ballots. This year, on Jan. 19, he was the sole dissenter in the court’s 8-1 decision to require the National Archives to release Trump papers related to the insurrection to the House committee investigating the attack. No fair-minded citizen could read Ginni Thomas’ texts and not doubt his impartiality in those cases.
Saying he didn’t know what she was doing is no defense. Aside from not being credible, he had “a duty” to ask his wife about her involvement in Trump’s efforts to stay in office before he participated in election-related cases, Stephen Gillers, a law professor and judicial ethics scholar at New York University, told me.
“Both have crossed a line and deserve no benefit of the doubt,” Gillers said. He noted that the federal law says judges and justices must recuse in cases where a spouse has “an interest that could be substantially affected by the outcome” — as Ginni Thomas did, having enlisted in Trump’s “Stop the Steal” campaign — and where their “impartiality might reasonably be questioned.”
That certainly applies to Clarence Thomas. The cloud he’s cast over the court is as ominous as any in memory. It’s time to shift attention from Ginni Thomas to the justice, and demand an accounting from him. We can no longer just hold our noses and go on.
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