By Jessie Seigel / Washington, D.C.
Supreme Court justices generally try to keep a low profile, particularly in the media, emerging only at dignified official events or in scholarly journals. For years, Clarence Thomas, the longest-serving justice on the court, stubbornly even refused to ask questions in the courtroom. But for the past month, the justice and his wife Virginia “Ginni” Thomas have made tabloid-style headlines at every U.S. news outlet because of revelations regarding her right-wing activism and its relevance to her husband’s judicial independence.
Veteran political commentator George Will weighed in on the controversy in his Washington Post column last week. Will dismissed any need for Justice Thomas to recuse himself from cases involving the January 6, 2021 insurrection because of his wife’s involvement with the events of that day. Will deems this a mere “kerfuffle” over appearances.
No surprise here. My impression is that George Will, like many in the Republican establishment, favors an oligarchy eternally run by the Republican party—but does not want low-brow Donald Trump or his yahoo followers and adherents to be the ones controlling it.
The hypocrisy is hard to take. But Will’s facile, sophistic analysis that deliberately ignores facts and law, let alone the call of ethics, is intolerable. And a man with his resume should know better.
Will, a well-established conservative journalist, has been a fixture on the Washington scene for decades. During his long career, he has served as the Washington editor for the conservative biweekly, National Review, written for and been a contributing editor for Newsweek, and appeared as a pundit on various political talk shows. He also was awarded a Pulitzer Prize in 1977 for his Washington Post columns.
Though a very conservative Republican, he acknowledged in a 2019 interview by Reason that he has moved in a more Libertarian direction, Will has shown nothing but disdain for Trump.
In 2016, Will left the Republican Party, re-registered as an unaffiliated voter, and became an advocate for the “Never Trump” movement. In June 2019, he contended that the Republican Party had become a cult. And in June 2020, he wrote that Trump was a “low-rent Lear raging on his Twitter heath” who “has proven that the phrase malignant buffoon is not an oxymoron.” He added that the Republican party had given its nomination to “a vulgarian.”
Will not only announced he would vote for Joe Biden for president, but told NPR’s Rachel Martin, that Trump’s congressional enablers must be voted out of office as well. But one must wonder why Will’s distaste for Trump enablers does not extend to Ginni Thomas or her enabler husband.
Ginni Thomas’s actions
Between Joe Biden’s victory in the presidential election on November 7, 2020, and the January 6, 2021 congressional certification of Electoral College votes, Ginni Thomas sent former president Trump’s White House Chief of Staff Mark Meadows at least 21 texts. These texts urged Meadows to act to overturn the 2020 presidential election. Meadows responded in at least eight texts (a total of 29 text communications revealed so far).
As early as November 6, Thomas texted Meadows, “Do not concede…It takes time for the army who is gathering for his back.”
Among the most outrageously undemocratic of Ms. Thomas’s texts is one reading: “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc.) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.” To this, she added, “I hope this is true.”
Ginni Thomas attended Trump’s January 6, 2021, Stop the Steal rally, but claims she left early because she was cold. According to The New Yorker, Ms. Thomas was respected by the different right-wing factions and “served as a kind of peacemaker and brought together different factions organizing [the January 6 rally] event.” If so, her involvement hardly seems to be that of an attendee who left early.
The Need for Clarence Thomas to Recuse Himself
Generally, the judicial code of conduct requires federal judges to recuse themselves—that is, disqualify themselves from judging a case if there is a potential of a conflict of interest or lack of impartiality.
Supreme Court Justices are not bound by this code of conduct but, under 28 U.S.C. section 455, they appear to be prohibited from hearing cases in which their spouses have an “interest that could be substantially affected by the outcome of the proceeding.” The statute also states they are to disqualify themselves in any proceeding in which their “impartiality might reasonably be questioned.”
Despite the fact the statute states it applies to justices as well as judges and magistrate judges, there seems to be some assumption that it does not apply to the Supreme Court. Perhaps this is because there is no higher court that could enforce the requirement against that court’s members. Regardless of whether it can be enforced against Supreme Court justices, ethically, they ought to abide by it.
It doesn’t matter whether Ginni Thomas’s involvement in the events of January 6 were legal or illegal. She has a personal interest in protecting herself in the January 6 cases and, therefore, her husband should not participate in adjudicating them.
You don’t need to be a lawyer to understand the ethical situation here. And given George Will’s long history as a political journalist and pundit, he cannot credibly claim ignorance. Yet he deigns to carry water for Clarence Thomas with the most transparently ridiculous arguments possible. Let’s knock them down, one by one.
George Will’s “Kerfuffle”
Will begins by dismissing Ginni as “politically mad as a hatter,” and groaning “beneath the weight of Trumpian hysterics.” He argues that to say she was “strategizing” with the White House is like saying “the guy in the stadium’s upper deck…shouting suggested plays is strategizing with Alabama’s football team.”
But, mad as a hatter or not, Ginni Thomas was not just “some guy in the stadium’s upper deck.” She has been a high-level Republican operative for many years. According the The New York Times, she started out working for right-wing organizations like the Heritage Foundation and the U.S. Chamber of Commerce and moved on to the even more extreme right-wing efforts of the Tea Party. In 2013 she founded the organization Groundswell, after consultation with Steve Bannon, who later became Trump’s main strategist.
In 2019, Ms. Thomas was appointed to the nine-member board of the conservative Council for National Policy (CNP). According to the New York Times Magazine, the CNP was active in efforts to overturn the 2020 presidential election, including circulation of a document in November 2020, urging members to pressure Republican lawmakers in swing states to challenge the results and appoint alternate slates of electors.
In addition to disingenuously analogizing Ginni to a nonentity without influence, George Will whimsically quoted Dicken’s Mr. Bumble, who lamented that if the law assumes that a wife is under her husband’s direction, the law is an ass.
Will went on to make the inapposite argument that Clarence Thomas should not be made responsible for controlling his wife’s beliefs and actions. In that, Will is correct. But the justice can and should be responsible for his own actions. And since Thomas has an interest in protecting his wife, his impartiality could “reasonably be questioned” under 28 U.S.C. section 455. Without question, that militates that he recuse himself from judging any cases that may affect her.
Justice Thomas has already refused to recuse himself in the case in which Trump tried to get the high court to block the National Archives’ release of his documents to the House January 6 committee. Thomas was the sole vote in favor of Trump’s position. Will’s defense of Thomas is that he “is comfortable in lonely dissent.” And Will asks, rhetorically, whether there is “any reason to assume that Virginia’s obsessions rather than his jurisprudential convictions determined his dissent.”
My response: there may not be reason to “assume,” but there absolutely is reason to question whether it was protection of Ginni or his “jurisprudential convictions” that determined Thomas’s dissent.
Despite the Thomases’ insistence that they keep their professional lives separate, it beggars belief that, with all Ginni’s interactions with the White House and the Stop the Steal rally organizers, her husband did not know there was a possibility that her texts or other mentions of her could turn up among Trump’s documents. But even if he didn’t, he had a duty to inquire.
Stephen Gillers, a law professor at N.Y.U. and a prominent judicial ethicist, told the New Yorker that Justice Thomas can’t just claim he was not aware of his wife’s interest in the outcome: “It was Thomas’s responsibility to ask Ginni what she was doing to help overturn Biden’s victory. ‘Don’t ask, don’t tell’ is not an acceptable strategy for the Thomases’ marriage.”
Gilers said, “Thomas should have realized that the public would assume that he and Ginni did discuss Trump’s ‘stop-the-steal’ efforts and Ginni’s participation in those efforts. Thomas does not avoid recusal by stuffing his ears, assuming he even did so.” Gillers added that judges often say that “intentional avoidance of knowledge is knowledge.”
Despite these gaping holes in Will’s arguments, the columnist ploughs ahead, maintaining that the only problem raised is “appearances” and proceeds to argue that appearances should not be relevant to recusal.
Will dismisses the long-standing legal ethic that judges should eschew even the appearance of impropriety, trying to turn the tables by writing, “Fussing about such things is often what people do to justify unjustifiable actions.” Contrariwise, he also labels those who would prevent the “appearance of corruption” morally fastidious people whose grumpiness is no reason to proscribe the behavior. Will argues that the confirmation of someone for the Supreme Court “presumes” their impartiality. And thus, there is no need to for them to recuse themselves.
This effort at sophistry is more than intellectually dishonest. It is idiotic. One wonders whether Will ever heard the old adage, “Power corrupts and absolute power corrupts absolutely?” Or perhaps he should be made familiar with the saying, “When you assume, you make an ass of you and me.”
Supreme Court Justices, appointed for life, have a degree of power that no one else in the United States has. They are human just like the rest of us and can be just as prone to the temptations of power or calls upon family loyalty as anyone else. Ethical requirements exist so that society does not have to rely on a judge’s ability to self-regulate. Such requirements and norms are adopted to ensure, to the degree possible, that we maintain a government of laws, not men.
But George Will insists that Clarence Thomas’s dissents on the January 6 cases so far are a result of his “starchy independence,” and that those who consider his judicial behavior a problem are the ones who “have a problem.”
I agree with Will on one point. We have a problem alright. Our problem is that we are saddled with the presence on the Supreme Court of a justice who has shown himself anything but fastidious when it comes to judicial ethics. And the facile sophistry of George Will in no way adds to an intelligent analysis or resolution of the situation.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.