Commentary: Democrats’ Calls for Justice Thomas’ Recusal Are a Nakedly Political Ploy

Justice Clarence Thomas
by John G. Malcolm


In their latest attack on the integrity of the U.S. Supreme Court, House Democrats are urging Justice Clarence Thomas to recuse himself from a case involving former President Donald Trump’s eligibility to appear on Colorado’s Republican primary ballot.

Their reasoning is simple, but dangerously misguided: Because Thomas’ wife, Ginni, has expressed opinions about Trump and the 2020 election, he should be barred from adjudicating any case involving Trump and elections.

Such reasoning is unfair, unsound, unwarranted and strikingly hypocritical.

In 2011, Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals refused to recuse himself from a constitutional challenge to California’s Proposition 8 on same-sex marriage even though his wife had spoken publicly about the case and her organization, the ACLU of Southern California, had filed a friend-of-the-court brief arguing for the law to be struck down.

Saying that his wife’s views “are hers, not mine, and I do not in any way condition my opinion on the positions she takes regarding any issues,” the now-deceased Reinhardt declined to recuse himself and ruled against the ban.

There was, of course, no left-wing outrage over Reinhardt’s decision. In fact, liberal ethics professor Stephen Gillers supported Reinhardt’s decision, arguing “a spouse’s views and actions, however passionately held and discharged, are not imputed to her spouse, and Judge Reinhardt is not presumed to be the reservoir and carrier of his wife’s beliefs.”

Similarly, all one could hear from the Left was the quiet sound of crickets at night when Judge Nina Pillard of the U.S. Court of Appeals for the D.C. Circuit refused to recuse herself in cases including a challenge to the conditions of confinement of detainees at Guantanamo Bay, in which the ACLU took a position, even though her husband was that organization’s national legal director.

Ginni Thomas’ relationship to the Trump case is, of course, far more attenuated than those instances. She has no involvement or direct interest in the case and has just as much of a right to comment on public matters as anyone else. Ginni Thomas did not lose her First Amendment rights when her husband—who was recently (and accurately) described by constitutional law professor Steven Calabresi as “incorruptible in every sense of that word”—became a judge.

In addition to using Ginni Thomas as a cat’s-paw in a desperate attempt to try to change the balance of the Supreme Court, the Left has shamelessly smeared her character.

Even a cursory view of the facts disproves House Democrats’ unfounded, thoroughly outlandish claim that Ginni Thomas “was instrumental in planning [the Jan. 6 rally] and bringing the insurrectionists to the Capitol.” Ginni Thomas fully cooperated with the Jan.  6 Committee, complying with document requests and participating in a thorough four-hour interview.

Her name does not appear even once in the 845-page committee report.

The Democrats’ “by any means necessary” attempt to tarnish Ginni Thomas with the events of Jan. 6 is a transparent ploy to inject politics into the Supreme Court, undermine its independence, and affect policy outcomes to achieve their political objectives.

All of this comes atop their months-long effort to impose arbitrary and unreasonable ethical standards that would undermine the court’s independence. All the justices—both liberal and conservative—have made clear that they have long adhered to a Code of Conduct, which they reiterated in a recently released statement.

Many of the guidelines to which the justices adhere go beyond those followed (or not, as the case may be) by members of Congress, exposing to anyone who cares to look that what the Democratic members who have been decrying false claims of judicial improprieties really want is “rules for thee, but not for me.”

The latest attacks on Clarence Thomas are merely a continuation of the Left’s dangerous political campaign to exert pressure on the justices and to destroy the legitimacy of the Supreme Court because they are displeased with some of the court’s opinions.

But however hard they try, and however much they squawk, they will once again fail. Clarence Thomas is not going anywhere.

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John G. Malcolm is the vice president of the Institute for Constitutional Government and director of the Edwin Meese III Center for Legal and Judicial Studies, overseeing The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law.





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