Recuse or Resign

The wife of a Supreme Court Justice is rarely a public figure. Yet, Virginia Thomas, wife of Justice Clarence Thomas, recently become well known for her extreme political views. Marriage to Clarence Thomas has given Virginia Thomas access to powerful people and she has availed herself of that privilege. While Virginia Thomas is entitled to whatever anti-democratic principles she wishes to believe, my concern lies with the appearance that she has influence on Justice Clarence Thomas.

The news of Virginia (known as Ginni) Thomas’ many text messages made headlines. In her texts, Ginni Thomas advocated immoral if not illegal efforts to undo an election.

She urged White House Chief of Staff Mark Meadows to take steps to overturn the election of Joe Biden. Lawsuits regarding the Presidential election and the January 6 attack on the U. S. Capitol will likely reach the United States Supreme Court. How might Justice Thomas rule on a matter that is of great concern to his wife, who urged Trump to overturn the election and attended the rally to “stop the steal” on January 6. Many in the media and on Capitol Hill have called for Justice Thomas’ recusal on all such cases.

Justice Thomas already participated in one election-related case. In January 2022 the Court received an emergency application from Donald Trump asking the court to block release of White House records concerning the attack on the Capitol. The court rejected the request, in a sharp rebuke to the former president, with one dissent – that of Clarence Thomas.

The Code of Conduct for United States Judges plainly states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, . . . [when] the judge’s spouse . . .has . . . any other interest that could be affected substantially by the outcome of the proceeding.”

There is no bright line test on when a spouse’s political views are cause for a judge’s recusal. But maintaining the integrity of the legal system is an art, not a science. The Code of Conduct opens with the statement that “a judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.” To promote the impartiality of the judiciary, Judges must avoid even the appearance of impropriety. Neither family nor politics should influence a judge’s decisions. When these guidelines are not observed, public confidence in the judiciary is eroded. Wrongful action is not a prerequisite for recusal. Rather, any conduct that appears to compromise the impartiality of a judge undermines public confidence in the judiciary.

Unfortunately, this Code of Conduct is not binding upon Supreme Court Justices. In fact, there is neither statute nor rule that requires Justice Thomas to recuse himself. Even the Judicial Misconduct Statute does not apply to Supreme Court Justices. Supreme Court Justices are not held to the same standards as other Judges or lawyers.

The esteemed Brookings Institute has opined that Thomas’ failure to recuse may be wrong, but it is not judicial misconduct. In that assessment they are correct. But their determination is morally obtuse as they do not call upon Thomas to follow the path of integrity in stepping aside as necessary to bolster public confidence in our judicial system.

I believe that our government must go further than polite appeals for recusal. Any system of justice works because of our attachment to the belief that justice prevails. The judicial system is a concept hewn out of good intentions and malleable rules. Public confidence in a fair judiciary is already at peril. Of particular importance is that the politicization of the appointment process for Supreme Court justices has been detrimental to democracy.

Without regard for politics, those who cherish democracy should be appalled that Justice Thomas has already been derelict in his oath. His refusal to recuse himself in one case regarding the Trump Presidency is indication enough that he will not uphold the principles set out in the Code of Judicial Conduct. Our legislators on Capitol Hill should demand that all Justices uphold the integrity of the Court or resign their appointments.

Evan J. Krame