Tuesday, April 12, 2022

Acquiescence


Two weeks ago, the Huffington Post noted that Supreme Court Justice Clarence

Thomas is currently under fire for failing to recuse himself from cases related to the Jan. 6, 2021, insurrection after text messages from his wife, Virginia (Ginni) Thomas, to then-White House chief of staff Mark Meadows revealed her active participation in the effort to overturn the results of the 2020 election.

Initially, Meadows voluntarily disclosed the messages to the House committee investigating the Jan. 6 attack on the Capitol. Later, on Dec. 7, 2021, he stopped cooperating with the committee and claimed executive privilege to prevent further disclosures.....

The Supreme Court ruled 8-1 against assertions of executive privilege by ex-President Donald Trump and his ex-aides, including Meadows. Thomas cast the lone vote of dissent in the case. Now, it’s clear that the disclosures in question could have provided more evidence of his wife’s involvement in the plot to overthrow the results of the 2020 election.

This obvious conflict of interest apparently violates Section 455 (b)(5) of Title 28 of the U.S. Code, which is probably moot, because the Supreme Court is a law unto itself. Yet however corrupt Thomas may be, refusal to recuse himself was not inevitable given that

Since 1993, Thomas has recused himself at least 19 times from 18 different cases for either being named in the petition, having previously heard the case as an appeals court judge, or because his former employer was named as a party.

In 1995, Thomas recused himself at multiple stages during the Virginia v. U.S. case challenging Virginia Military Institute’s male-only admission policy. Thomas’ son attended the institute at the time.

Thomas also recused himself from six cases involving the bank Wachovia from 2004-2007 because his son worked at Wachovia Securities.

“The Wachovia cases, those are the real interesting ones,” said Gabe Roth, executive director of Fix The Court, “because he is recusing due to an interest of a family member. That’s textbook Supreme Court recusal.”

Of course, as Anita Hill and Angela Wright learned, Clarence Thomas is a skilled liar who will do whatever he chooses to do. That's why it was surprising when on the third day of questioning of Kentanji Brown Jackson

In response to a question from Sen. Ted Cruz, R-Texas, Jackson said she would recuse herself from an upcoming challenge to Harvard University’s race-conscious admissions policy. Jackson, who attended Harvard as both an undergraduate and a law student, is a member of Harvard’s board of overseers. Her term on the board expires this spring.

“That is my plan, senator,” Jackson said when asked by Cruz if she would recuse from the case.



Every nominee for the Supreme Court has learned the lesson of Judge Robert Bork, who didn't know enough to hide his extreme right-wing views from his inquisitors on the Senate Judiciary Committee.  Consequently, Judge Jackson wisely dodged many questions, deftly avoiding alienating any Senator who was not already determined to vote against her. 

Admittedly, she did say recusal is "my plan" rather than "I will recuse myself." Nevertheless, that was a relatively definitive reply, one more so than anyone- including Cruz- could have expected, and more than could have been demanded. 

This may have been a wise response to ensure her confirmation. But it was at best only of marginal assistance. The proper reply would have been "I plan to follow the lead of my esteemed colleagues." That would have thrown Republicans on the defense. Six Justices including Thomas are Republican and conservative and Jackson's critics on the committee would have been extremely hard-pressed to attack her while she was defending her future colleagues. Additionally, they are "esteemed."

This answer would have allowed the Judge maximum flexibility on the Court.. It also would have added a little fuel to the arguments of Democrats who have suggested that Justice Thomas recuse himself from matters involving his wife.  However, that would have at least slightly helped the members of Ketanji Brown Jackson's party and possibly exposed Republicans to charges of hypocrisy. Democrats simply don't do that sort of thing.

Full disclosure: I don't agree with Harvard University's admissions policy.  Still, I know a cave when I see one, and this brings to mind a comment made by Wright about the Hill-Thomas hearings of 1989. In a sentiment since commonly expressed by the left in only slightly different terms, she noted "to me, having worked on both sides of the aisle — Republican and Democratic — what I know for sure, Republicans are like bare-fisted street brawlers, Democrats do pillow fights.”

 


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