Justice Clarence Thomas Shouldn't Vote on Cases Involving Ginny Thomas

 Dear Chief Justice Roberts:

What are you going to do about Clarence Thomas?

Justice is blind. The statue, anyway. Most judges try to blind themselves to extraneous factors like a litigant’s political influence or ideology, as I’m sure you do. Our judicial system depends on folks feeling some level of trust in it.

One basic step (what lawyers call “a necessary but not sufficient condition”) is that judges recuse themselves from hearing cases involving friends and family, or companies they own stock in – or where there’s even the appearance of impropriety. (For example, after two dogs attacked a beloved local artist, the first two municipal judges assigned to the case recused themselves because they knew her.) Many judges curtail their social lives, particularly as regards lawyers who appear in their courtrooms.

Justice Breyer has routinely recused himself from cases involving his brother, a federal judge. Ketanji Brown Jackson says she’ll recuse herself from a case involving Harvard and affirmative action, although they don’t involve her, her family, or her business. (She’s on Harvard’s board.)

Donald Trump and his pals have tried like the devil to overturn a federal election. To veto the choice of the people (and even the electoral college) because they’re bad losers. Something we never saw Tilden or Hoover or Nixon do. It borders on treason, frankly; and Ginny Thomas was right in the middle of it, texting Trump’s cronies, egging them on.

Take the recent case on whether or not documents from January 6 have to be turned over. You and seven other justices, three appointed by Trump, thought it open-and-shut, with no reasonable legal excuse for withholding the documents. Only Justice Thomas didn’t see it that way. Only Thomas, whose wife’s communications might be among those documents, thought they should be kept hidden.

If Thomas’s wife was dealing drugs, and he insisted on presiding over a drug trial related to her, or if she was running a child-prostitution ring out of a pizza joint, and got charged with a crime, no one would countenance it.

This is actually worse! Ginny Thomas has been trying to undermine our democracy by negating our Presidential Election. Still, “Justice” Thomas won’t sit it out.

Ginny Thomas is entitled to the same presumption of innocence we all are. Maybe she didn’t commit or conspire to commit treason or election-law violations. But how will the country ever know, if her husband gets to decide whether the evidence can even be looked at?

This is your watch, Chief. I know that you value the honor and credibility of the U.S. Supreme Court. You’re aware that history will likely recall this period as the Roberts Court. Just as the “Warren Court” outlawed segregated schools by overruling Plessy v Ferguson, recognized the procedural rights of folks accused of crimes but presumed innocent, and decided Roe v. Wade; and the “Burger Court” drew back from some civil rights, limiting or tossing various rights of poor folks.

Will you have folks sneer when they refer to the Roberts Court, on which such Thomas travesties continued, with other justices too timid to speak up?

You’re in a tough spot. Thomas should be impeached; but, in Trump’s words, Thomas could walk down Pennsylvania Avenue murdering people and not be convicted. (Some will accept any misconduct because Thomas votes as they would wish.)

But hadn’t you better try? Something? Some last-ditch effort to save the Court? And your legacy?

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 [The above column appeared this morning, Sunday, 17 April, 2022, in the Las Cruces Sun-News, as well as on the newspaper’s website ("Supreme Court Justice Thomas Should Recuse Himself or Be Excused") and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[Of course, Thomas, unlike other judges or justices, is not subject to specific ethical laws or rules on this issue; but his conduct is sufficiently out of line with basic judicial ethics that, on the law and his conduct alone, he could reasonably be impeached and convicted. If we were talking not about a politically sensitive issue here but about a garden-variety crime – say, a 4^th Amendment case in which a clearly lawful police search of Mrs. Thomas’s car had turned up 20 pounds of heroin, or the IRS was pursuing back taxes and wanted to to an audit – there’d have been a universal outcry over Clarence Thomas’s conduct. He’d clearly deserve impeachment.

However, impeachment will never happen, because the Republicans and perhaps the Democrats will care more about keeping or gaining “control” of the Court. House Republicans would refuse now to vote for impeachment, or Senate Republicans for conviction, because too many of their voters like how Thomas votes on choice/abortion and other favorite issues, and conviction might allow President Biden to replace him with a young and progressive or moderate justice. Were we under a Trump or DeSantis or Scott regime, Democrats might advocate impeachment, but might mute that advocacy a bit because Thomas might be replaced by someone quite as far out of the mainstream but considerably younger.

So we’re stuck with the guy; but he should be gone. ]