Today’s L.A. Times print edition carries an article with the headline, “Challenging a judicial norm,” and the subhead, “A justice’s wife may test impartiality standards by starting a ‘tea party’ group.” (The online version has a different headline and a slightly different subhead.) The article is about Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, who has just founded Liberty Central Inc., a conservative activist group.
Of course, Justice Thomas is not the only judge to have had a spouse in a prominent political role. Ninth Circuit Judge Stephen Reinhardt’s wife, Ramona Ripston, has just stepped down from being head of the Southern California ACLU. Third Circuit Judge Jane Roth’s husband was a U.S. Senator; Third Circuit Judge Marjorie Rendell’s husband is a governor. So I’m not sure that there’s really a judicial norm that judge’s spouses should stay out of politics, whether partisan politics, advocacy group politics, or public interest litigation (itself a form of politics, at least when done effectively).
And while the matter hasn’t to my knowledge arisen as to the U.S. Supreme Court, that might have chiefly been a matter of small numbers and the recency of women’s substantial participation in politics, rather than of any consciously accepted norm. All but three Supreme Court Justices have been men. Until recently, women haven’t been involved either in partisan or ideological politics at nearly the level we see now. And it makes sense that of the few male Justices who have served during an era when men their age have wives who might be interested in politics, only one has had a wife who was indeed interesting in that sort of thing. At the circuit judge level, the numbers are just much greater, as are the numbers of female judges whose husbands are interested in politics.
What we have here is the inevitable result of the growing equality of women, the resulting growing tendency of lawyers to marry lawyers (and lawyers are disproportionately likely to go into politics), and the general tendency of people to marry others like them. It makes sense that many judges these days are women whose husbands are of the profession, social class, and cast of mind that makes them want to go into politics. It makes sense that many male judges have wives who are likewise likely to be interested in politics. And of course since spouses are supposed to help each other (and much such help is entirely legitimate), the success of one may yield more opportunities for the other.
Nor does this strike me as particularly pernicious or dangerous: Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups. That too is inevitable, and the fact that a spouse (or a child) has a high-profile political position doesn’t add much, I think, to those existing predispositions. In particular, I don’t think that the desire to remove any such mild additional influence of the judges justifies limiting the lives of the judge’s spouses and children. Virginia Thomas, like Ramona Ripston, should be free to go where her beliefs and talents take her, without having her spouse’s job cripple those ambitions.
It’s true, of course, that in some situations a judge might have to recuse himself because of a spouse’s or child’s involvement in a case. Judge Reinhardt, for instance, had always recused himself, if I’m not mistaken, in cases involving the Southern California ACLU. But those should generally be relatively rare situations, and limited to the family member’s actual involvement in a case and not just the family member’s political or ideological sympathy or alliance with a party.
And whatever people might think about the bottom line, I’d just be happy if discussions of this issue as to the Thomases would likewise discuss the Ripston/Reinhardts, the Roths, and the Rendells.
UPDATE: I originally said that Judge Reinhardt recuses himself from ACLU cases; his policy actually appears to be that he recuses himself from cases involving the ACLU of Southern California, so I corrected the post accordingly.
Kieth says:
If Mrs. Thomas’s membership had been in Amnesty International the article would (probably) have lauded her choice and her independence.
March 14, 2010, 5:24 pmEvilDave says:
Well Judge Reinhart is white and Justice Thomas is black. So, according to Leftist dogma, the only reason for this ill-treatment of Justice Thomas must be racism.
March 14, 2010, 5:34 pm.
.
.
What?
You say Thomas is a Republican? And he’s black? Really?
Well, then he is officially an “Uncle Tom”, a “Race traitor”, and a “House N****”, and probably an out of control sex-crazy animal … the type that would leave a pubic hair on a can of Coke.
.
So, he and his loved ones are fair game then.
Jonathan H. Adler says:
It’s probably also worth noting that Judge Marjorie Rendell’s husband, Ed Rendell, was head of the Democratic National Committee while she was a judge.
March 14, 2010, 5:34 pmBleh says:
EvilDave:
Jolly good show… Raising the level of the debate and all that…
—
Other than that. Who cares what his wife does politically? Is it really any surprise that Thomas leans towards the conservative end of the spectrum? Sounds like a bit of a dumb article, about par for the course by media standards.
March 14, 2010, 5:48 pmBarbara Skolaut says:
Silly Eugene. Like that’s gonna happen….
March 14, 2010, 5:55 pmSteven Lubet says:
Other than the headline, did you think any other part of the article was unfair? Or do you think it is unfair even to write about Virginia Thomas’s political activities?
It is unprecedented for a SCOTUS justice’s spouse to be so deeply involved in partisan politics. That doesn’t make it wrong, but it does make it newsworthy.
It is certainly true that there have been other judge-political figure marriages (not always involving a male judge). Illinois District Judge Harry Leinenweber was married to Republican Congresswoman Lynn Martin. Sixth Circuit Chief Judge Alice Batchelder is married to Republican political figure William Batchelder, who is currently in the Ohio House of Representatives.
The Supreme Court, of course, is different in several ways. First, cases are not assigned to panels (or randomly to individuals, as with district judges). Thus, every Justice sits in every case. Second, the cases are all more important and highly visible. Third, recusal results in a short-handed court, rather than in assignment to another judge.
Everything involving the Supreme Court is more newsworthy. For example, everyone knows that Justice Stevens has only hired one clerk for next year; no one (outside law schools) cares about the clerk hiring of circuit court judges.
The LATimes article simply reflects the heightened attention that everyone pays to the Supreme Court. Suggestions of liberal bias are misplaced.
March 14, 2010, 5:57 pmDan says:
I think the angle of the story is more that her group is being made possible by the Citizens United ruling. There is (arguably) an added level of impropriety in a judge’s spouse directly benefiting financially from a judge’s ruling. Also, it is a lot easier to work around potential conflicts when your court normally works in panels of 3 from a court of 11 to 15 (plus senior judges and judges sitting by designation) rather than in a single panel. So long as he recuses himself from cases involving his wife’s group and its corporate donors, there should be no problem. But it is still newsworthy that (apparently for the first time) a Supreme Court justice’s spouse is getting so involved in a political movement.
March 14, 2010, 5:59 pmArthur Kirkland says:
You don’t get to pick your parents, their beliefs, your siblings, their conduct, or your spouse’s post-marriage activities or ideological development. I therefore do not fault Justice Thomas for having a spouse who is a wingnut who may wish to make a buck or two from other extremists.
March 14, 2010, 5:59 pmrbj says:
Reminds me of that famous ABA Journal funny item when a person contacted an Arkansas law firm, as he wanted to do some business with the state. So he asked the attorney if she had any conflicts of interest and she replied “Well, I am married to the governor.”
IIRC, Cheri Blair continued to practice law, even going to court, while her husband was Prime Minister. I think some of her cases did have a political dimension as well.
I’ve got no problem with the Thomas & Reinhardt activities.
March 14, 2010, 6:09 pmJohn Herbison says:
I would be shocked! shocked!, in true Claude Rains fashion, to find that something so unseemly as politics affects Clarence Thomas’s judicial decision making. After all, it’s not as if he and four fellow-Republican wardheelers anointed the doofus son of the man who appointed him as President of the United States, or anything like that.
(BTW, the lawfirm that then employed the son of another of those wardheelers represented the anointed one.)
March 14, 2010, 6:09 pmbyomtov says:
But those should generally be relatively rare situations, and limited to the family member’s actual involvement in a case
Isn’t that a bit narrow for Supreme Court cases? There are lots of people who are activists on issues that come before the court who may not actually be parties to the specific case. Suppose the spouse were head of the NRA, for example, and a gun rights case to which the NRA was not specifically a party came before the court. Should the Justice recuse?
March 14, 2010, 6:38 pmJohn Herbison says:
Speaking of the NRA, has any one else heard that that organization is going to honor Charlton Heston by sponsoring a remake of his epic motion picture? I heard that it will be retitled “The Nine Commandments”.
March 14, 2010, 6:41 pmorca says:
Just as long as he doesn’t benefit from any of the money his wife makes fleecing rubes, of course.
I’m sure Thomas and his wife will release their tax returns to the public from now on…
March 14, 2010, 6:44 pmleo marvin says:
As EV suggests, it would be silly to pretend judges don’t have political biases like everyone else. The question is whether a studied appearance of impartiality bolsters public confidence in a judge’s impartiality in practice. At the margins I suspect it may. So I’d prefer judges do less public speaking and writing that could even remotely be perceived as political advocacy. But I think you have to draw the line at limiting what a spouse does with his or her life. Is anyone surprised Reinhardt’s wife headed the SoCal ACLU or that Thomas’ wife is a tea partier? No. But it’s spurious to ascribe any more bias to the judges as a result of it. Otherwise, James Carville and Mary Matalin may be the most unbiased people in America.
March 14, 2010, 6:45 pmptt says:
Are very many “ordinary citizens from Omaha, Neb.” beginning their third decade of residence in Virginia?
Faux populism is so unattractive.
I look forward to Justice Thomas’ frequent recusals…
March 14, 2010, 6:58 pmjcm says:
It is a common rule in civil law countries : when the spouse or family in the 4th degree ( blood tie) or 2nd ( legal tie) the judge must recuse himself ( herself) and the other one is banned from that court , unless it is the only court in the town ( in the same law subject). Of course while judge are banned from politics , their spouses are not. But for sure the press will go after them
March 14, 2010, 6:58 pmSteven Lubet says:
I am shocked. Don’t conservative judges insist that they have no predispositions other than to follow the law (which they are able to locate with the help of their clerks)?
March 14, 2010, 6:58 pmPerseus says:
Someone of your ideological ilk should be more reluctant to throw around terms like “wingnut” and “extremist.”
March 14, 2010, 7:07 pmCognitive Dissonance says:
“Mock Trial . . . with Judge Reinhold!”
“Well…it looks like we’ve got a mistrial. But on the other hand, we’ve got a Hung Jury! Hit it, guys!”
http://arresteddevelopment.wikia.com/wiki/Fakin'_It
(I know, it’s Judge Reinhardt, not Reinhold. But there’s no need to quibble over technicalities.)
March 14, 2010, 7:21 pmtvk says:
I agree with you about the goose-gander point; and I really can’t see a rule limiting spouses’ political activities because the other spouse is a judge. At the same time, we as a society still treasure the illusion (and it really is just an illusion) that judges are neutral in political matters–for example by limiting their ability to speak out on politics–and having a spouse that is active on one side undermines that. It is as if a baseball umpire has a spouse that is a Yankees player. Sure, he can’t umpire Yankees games; but can he umpire Red Sox games? The Red Sox will surely hope not.
March 14, 2010, 7:28 pmPersonFromPorlock says:
Unless Citizens United was made up out of the whole cloth, it seems more accurate to say her group is made possible by the Constitution.
March 14, 2010, 7:29 pmElliot says:
If spouses are to be limited in their activities, we should then pay them for that lost opportunity.
March 14, 2010, 7:38 pmDesiderius says:
“What we have here is the inevitable result of the growing equality of women”
That, or the usual anti-Tea Party hysteria. Maybe both.
March 14, 2010, 8:06 pmorca says:
From her panhandling website:
Ginni is excited about launching LibertyCentral.org and finds the new citizen activists inspirational! She brings passion, enthusiasm and principled participation to the public square. With 30 years of experience within the Washington beltway working alongside esteemed politicians like Dick Armey and for institutions like Hillsdale College, the Heritage Foundation and the U.S. Chamber of Commerce, Ginni is committed to serving as a clearinghouse for new and more effective online activism. Ginni, the ‘proud’ Nebraskan, is a fan of Rush Limbaugh, Mark Levin and Laura Ingraham and other talk radio hosts. She is intrigued by Glenn Beck and listening carefully. She also enjoys motor homing and watching “24″.
March 14, 2010, 8:14 pmMark Field says:
I’m not sure the comparison with Ramona Ripston is as parallel as several of the others mentioned. While no one doubts that what the ACLU does has political ramifications, her job was, strictly speaking, a legal one not a political one. I doubt it would be all that newsworthy if Virginia Thomas had gone to work for the Pacific Legal Foundation.
March 14, 2010, 8:18 pmJohn Herbison says:
I wonder about the interplay between Justice Thomas’s marriage and his claimed originalism.
Does it follow from the theory of originalism that Bolling v. Sharpe was wrongly decided to the extent that the Fifth Amendment Due Process Clause includes an equal protection guaranty applicable to the District of Colombia?
If that is Justice Thomas’s view, does he regard his marriage to a white woman as being valid in their home state of Virginia–Loving v. Virginia was a Fourteenth Amendment case–but invalid in D.C.?
March 14, 2010, 8:20 pmrandom commenter says:
“I therefore do not fault Justice Thomas for having a spouse who is a wingnut who may wish to make a buck or two from other extremists.”
Arthur Kirkland continues the tradition as VC’s resident human party favor.
March 14, 2010, 8:23 pmSara says:
Huh? What’s with this false equivalency? None of those, but Thomas, gets to vote on every case before the Supreme Court of the United States.
March 14, 2010, 8:34 pmnewrouter says:
so does scotus judge ruth “buzzi” ginsberg recuse herself from cases involving participation of the aclu?
March 14, 2010, 8:35 pmjuris imprudent says:
orca, just out of curiosity, are you only a proud resident of the latest place you lay your head, or do you still consider yourself to have some ties to the place of your birth and/or rearing?
March 14, 2010, 8:36 pmnewrouter says:
and your point is what?
March 14, 2010, 8:37 pmSara says:
They are not equivalent. That should be clear, since that is what I wrote.
March 14, 2010, 8:43 pmorca says:
Thomas’ crusading spouse solicited and recieved an endorsement from Donald Rumsfeld…Donald Rumsfeld:
Like so many others, I am impressed by the energy and enthusiasm Ginni Thomas brings to the cause of freedom and individual rights. Ginni can help channel the frustration felt by millions across America at the current course of our country.
I think you’ll have to resort to something other than the usual juvenile insults to cover that stink…
March 14, 2010, 8:50 pmMichelle Dulak Thomson says:
orca,
If your problem with Ms. Thomas is that she was endorsed by Donald Rumsfeld, why snark at her calling herself a Nebraskan despite a couple decades living with her husband in Virginia?
Juris imprudent is quite right to call you out on this. It’s more reasonable, as well as more decent, to attack people only for things you would attack anywhere you saw them, rather than taking anything anyone (not only you yourself) might object to and swinging it around like a club.
March 14, 2010, 9:05 pmAnonsters says:
I suspect his problem with Mrs. Thomas is that she’s married to Mr. Thomas.
[And although I cheerfully admit I'm an evil liberal, I personally don't really give a damn what Mrs. Thomas does. Do we think that, but for her populist (faux or otherwise) activism, Clarence Thomas would decide cases differently? I don't. The man's a loon. He was a loon before we knew about his wife's political activity, and he remains a loon after we knew.]
March 14, 2010, 9:12 pmStephen Lathrop says:
Could be a problem with that; the article I read said there is no requirement for her donors to be identified.
Thomas is going to be on the court while his wife takes public policy positions and accepts money from donors in support of those positions. Some of those donors will bring cases before the court, and some of them will take the precaution of donating to Thomas’ wife’s organization before the cases come to public attention, or perhaps before they are filed (we need only to look at the Clintons’ finances to see the inevitability.) .
I presume some of that money, in the form of salary for her, will find its way into the Thomas household economy. How is that NOT a conflict of interest for Thomas? If ANY of the money going to the wife’s organization remains undisclosed, how can that fail to undermine the appearance of judicial independence for Justice Thomas.
I’ll go farther, how do I know now that Justice Thomas’ position on Citizens United was not influenced by a desire to put his wife in a position to profit from corporate political contributions which would then benefit him financially? None of the preemptive defenses offered by EV strikes me as persuasive. The fact that there is a developing oligarchy of privilege in this country does not mean to me that institutional and customary barriers to corruption ought to be swept away to accommodate it.
I’m sorry if having a spouse on the Supreme Court means your occupational choices can’t include being in a position to accept undisclosed contributions from donors with a keen interest in influencing public policy. But I think that’s the way it has to be. With Thomas on the Court and his wife in the policy-for-hire business, there will be no untangling the potential conflicts. Justice Thomas should resign, or Mrs. Thomas should find another line of work.
With regard to the other examples. The only one I know enough about to have an opinion is the Rendell example. In that case neither member of the pair is in fact for hire privately. These distinctions should not be based on partisan considerations. If Ed Rendell was not in public office, subject to disclosure laws, but was instead doing lobbying in complete obscurity, my view would be similar to that with regard to Thomas—with the exception that it is a much bigger deal on the Supreme Court. Rendell’s wife serves on a court from which opinions can be appealed, including appeals for bias or impropriety. Thomas does not.
I don’t give a damn about the politics; judges, from the right or from the left, shouldn’t be going home to a domestic economy financed by a spouse in the policy-for-hire business. Seems simple enough.
March 14, 2010, 9:32 pmJay says:
First, I’m not aware that Justice Thomas believes that decisions he disagrees with are therefore not the law. Second, is there some DC law banning interracial marriage that would invalidate his marriage in the District of Columbia absent the Constitution? If not, this seems pretty irrelevant, other than as an excuse to mention that Thomas is married to a white woman.
March 14, 2010, 9:37 pmAlanDownunder says:
The problem is not their relationship – it’s that politics predicts Thomas’ opinions more reliably than principle. The political extremism of his spouse is merely illustrative of the problem.
March 14, 2010, 9:38 pmMichelle Dulak Thomson says:
Anonsters,
I suspect [orca's] problem with Mrs. Thomas is that she’s married to Mr. Thomas.
Well, of course. I don’t doubt that Mrs. Thomas could be off doing rescue work in Haiti or Chile and orca & co. could find a downside.
My point was that debate all round would be much improved if people confined themselves to objecting to actions or beliefs they sincerely find objectionable. “Any stick will do to beat a dog with” is an ugly image, and an ugly practice.
March 14, 2010, 9:40 pmMichelle Dulak Thomson says:
AlanDownunder,
The problem is not their relationship — it’s that politics predicts Thomas’ opinions more reliably than principle.
Does it? I mean that as a serious question. My impression (IANACL) is that Thomas is more obviously wedded to clear principles than is anyone else on the Court, and more willing to take them to places that he would not want to go as a legislator or a voter.
March 14, 2010, 9:50 pmArthur Kirkland says:
Why the fuss? Ginni Thomas self-describes (just read her biography from her website, boasting about work or admiration for Hillsdale, Heritage, Beck, Levin, Limbaugh, etc., or her list of endorsements) as a wingnut and extremist; I doubt she would invite any defenses of her distance from the “hard-left” positions of President Obama. Indeed, skewing as far right as possible appears to be the foundation of her plan to profit from like-minded extremists.
If anyone accused her of being a moderate, her company might sue.
March 14, 2010, 9:51 pmAnonsters says:
Indeed. I hereby object to Mr. Thomas being a Supreme Court justice.
I have to give the man props where they’re due. I too think he’s probably the most consistent justice on the Court. It just happens that I almost always disagree with him and think his principles are insane. :)
March 14, 2010, 9:53 pmorca says:
I don’t recall snarking about her calling herself a Nebraskan.
If anything bugs me about her, it’s that she’s a symbol of just how low the Republican party has sunk.
It’s really nothing more than a telemarketing scam these days…
March 14, 2010, 9:54 pmED Maven says:
It was not until I read this thread that I came to appreciate just how snide, petty and nasty liberals can be. Here I thought the conservatives’ accusations in this regard were exaggerated, but there is no arguing with what I have seen here. Much of this stuff is just juvenile.
If this is the level of public discourse that a group composed largely of law professors can come up with, we are in deeper doo-doo than I thought.
March 14, 2010, 10:01 pmJohn Herbison says:
Fair enough. The more appropriate question would be whether Justice Thomas believes that the government of the District of Columbia should not be constitutionally required to recognize the validity of his marriage. For that matter, does he believe that (hypothetically) if the District of Columbia government required separate (but equal) water fountains for black and white visitors to the Supreme Court building, no due process/equal protection problem would occur?
BTW, a mere click on the link to the Los Angeles Times online article would show that Mr. Thomas is black and Mrs. Thomas is white. Was the paper’s inclusion of that photo merely “an excuse to mention that Thomas is married to a white woman”?
March 14, 2010, 10:01 pmAnonsters says:
I move to table the interracial marriage crap.
This is the 21st century, people.
March 14, 2010, 10:09 pmBob from Ohio says:
I remain bothered about having high levels government posts too concentrated by family. As I’ve said before, there is plenty of talent around.
The Rendell and Roth situations also bother me for other reasons. Plenty of cases arise that might impact their husband’s political positions but do not require formal recusal. Plus, I can easily imagine a case that directly involves the governor where her fellow judges may not want to embarrass the husband of the respected judge in the adjoining chamber.
(I realize Roth is dead and of course no longer a senator but there was 10 years overlap in tenure. Rendell was mayor of the largest city in the circuit when she was appointed. Neither Bush 41 or Clinton should have made the appointments.)
Ripston and Thomas do not bother me at all. They are private citizens, so long as the husbands follow formal recusal rules, they can do what they want It is a free country.
March 14, 2010, 10:15 pmJohn Herbison says:
It is just my opinion, but I surmise that many liberals’ distaste for Clarence Thomas springs from his having spent his early career toadying to Republicans and conservatives, bashing the affirmative action programs that he had benefited from, until October of 1991 when it looked like his nomination was in trouble. At that point, he played the hell out of the race card.
That, and the first President Bush’s whopper of a claim that his nomination of then-Judge Thomas was based on merit. If Bush I had said that Thomas was the most qualified black conservative Republican that he could nominate, the fact that he was not qualified to carry Thurgood Marshall’s briefcase might not have been quite so galling.
March 14, 2010, 10:15 pmCalderon says:
Suppose a justice had a spouse who was the head of an ACLU branch. Should the justice be required to recuse him or herself from every case involving free speech, establishment of religion, abortion, gay rights, immigration rights, voting rights, women’s rights, treatment of inmates, and every other issue on which the ACLU has a position? And since the recusal rules aren’t different for justice and judges, should Reinhardt have been required to avoid all issues on which the ACLU has a position?
March 14, 2010, 10:24 pmjuris imprudent says:
JH: That, and the first President Bush’s whopper of a claim that his nomination of then-Judge Thomas was based on merit.
Isn’t the the raison d’etre of ALL affirmative action – to give opportunities to minorities that are qualified but would’ve been turned aside by the supposed fault of being a minority?
C’mon, it was a supremely well-played bit of liberal/progressive cant thrown back into the faces of the fuming, self-righteous left. That Thomas fit everything but the “correct politics” was the crowning insult.
And orca, I questioned you precisely because you snarked about her claim to ties to Nebraska. If all I wanted to do was engage in a snark-fest with you, it wouldn’t have been a polite question noted with “curiosity”. Trust me, when I want to sling shit at you, you will know it.
March 14, 2010, 10:35 pmgeokstr says:
Ed, you must be new here. Welcome.
Wait until you see any thread that can remotely be tied to Sarah Palin and you’ll see frothing, foaming spittle-flecked pathological terminal visceral hatred pour from these exact same “liberals”.
I’ve been reading blogs for years. This is actually relatively sane stuff from the left here compared to places like DKos, DU, HuffPo, Media Matters, and others.
March 14, 2010, 10:37 pmAnonsters says:
As opposed to the dispassionate, carefully reasoned, logically rigorous contributions from geokstr, of course.
…
March 14, 2010, 10:44 pmgeokstr says:
There’s an old proverb that goes something like this – you can step on all the hands and faces you want to on your way up the ladder, but just hope you never have to go down past them again.
In case you haven’t noticed lately, the R’s are making quite a comeback and the D’s are now tanking, fast. It looks like it could be a thrashing of Biblical proportions in November. The left finally woke up the silent majority and, as they say, payback is a b*tch.
March 14, 2010, 10:44 pmCalderon says:
I don’t really see the difference between legal and political here with regard to bias. The political and legal branches of an organization like the ACLU argue for the same result, just using different means. If there’s impropriety from a justice’s spouse arguing for particular policy results through political means, that same impropriety would carry over to legal means.
Indeed, I would think the impropriety from legal positions could be more severe, since S Ct decisions likely would have a more direct impact on the success of legal arguments made to courts rather than political arguments where one is trying to pass legislation, etc. For example, if a spouse is a litigator for a group that seeks to protection abortion rights, a pro-abortion rights decision by the S Ct is likely more beneficial to that spouse in pursuing legal remedies than if the spouse was arguing for protecting abortion through political means such as legislation. Indeed, such a S Ct decision might actually undermine the spouse’s ability to have legislation passed, since the legislators may think if the S Ct is protecting abortion rights there is less reason for them to pass legislation.
March 14, 2010, 10:45 pmorca says:
Could you link to my snark? I can’t find it.
March 14, 2010, 10:46 pmorca says:
Um, have you actually looked at the latest polls?
March 14, 2010, 10:49 pmgeokstr says:
You’ll get no apologies from me. I used to be naive about the left like Ed, thinking that they were just well-meaning but wrong.
No longer.
And you are one of the most mean spirited ones here, for which you’ve been called out before.
March 14, 2010, 10:51 pmAnonsters says:
Really? Where?
March 14, 2010, 10:57 pmptt says:
I am the one who “snarked” about her claim of being a Nebraskan. Orca didn’t address it all.
I was born in Denver and lived there though many of my formative years 0-2 and 9-17 (my father was in the military and was assigned elsewhere in between those dates) and for a brief period when I was 20. I am now 51 and haven’t lived in Denver for 31 years. I would be embarrassed to say, “I am an ordinary citizen from Denver, Colo.” because it is an attempt at deception.
March 14, 2010, 11:05 pmHieronymous says:
In the article, Mrs. Thomas’ response to the author’s query was to ask her whether she’d also contacted Ed Rendell. It was a chance to make this into a broader, perhaps more informative, piece of journalism than the rather specious result that was published. I immediately thought of Judge Reinhardt while reading it as well, and was somewhat surprised he wasn’t mentioned, given his news-making dissent last week in the Pledge of Allegiance case.
March 14, 2010, 11:27 pmorca says:
Leaving out Righty Rasmussen, the generic congressional ballot now stands at:
Democrats 47.1%
Republicans 41.7%
And the gap is widening.
Even with Rasmussen thrown in, the Dems have closed the gap.
http://www.pollster.com/polls/us/10-us-house-genballot.php
March 14, 2010, 11:27 pmAdam B. says:
Judge Rendell recuses whenever a party or attorney has contributed > $2500 to her husband’s campaigns, and will recuse upon request if anyone’s given less.
The question is what Justice Thomas’ recusal standards are, which many are questioning now that he has apparently refused to recuse himself from a case in which Monsanto is a party despite having served as their in-house counsel; meanwhile, Justice Breyer has recused himself because his brother was the district court judge.
March 14, 2010, 11:45 pmSteve P. says:
I hear this all the time, and it doesn’t ring true to me. There’s some criticism of Palin, sure, but it never seems to rise to the level of “frothing, foaming spittle-flecked pathological terminal visceral hatred”. Perhaps I have a different view of what “frothing, foaming spittle-flecked pathological terminal visceral hatred” is?
There was another commenter a while ago who made the same argument, and when I asked for examples, it was apparently too difficult to find any. Would you like to help Mr. M-K out?
March 14, 2010, 11:48 pmAnonsters says:
I’m still waiting for examples of being called out for being among the most “mean-spirited” of liberal commenters here. News to me.
March 14, 2010, 11:55 pmMark Field says:
I don’t know that this is true at all. For example, I hardly think that ACLU members politically supported the Nazis marching through Skokie. What they did do was support their legal right to do so.
I think it’s the opposite. Rightly or wrongly, I think most people assume that spouses share their political beliefs. In such a case, a spouse who engages in political activity calls into question the impartiality of the judge. That undermines the whole system.
In contrast, legal conflicts are easily handled by recusal.
In general, btw, I share Bob’s point above, in that I’m opposed to spouses who both have high level government posts. Private persons are free to do whatever they want, regardless of what I think personally of the merits of their choice.
March 14, 2010, 11:56 pmJAB says:
reminds me of the nina totenburg bit on NPR during roberts’ confirmation. she talked about how the fact that his wife was on the board of a pro-life organization showed what an extremist right-winger he was. (also, the fact that he’d adopted kids. i kid you not.)
March 15, 2010, 12:01 amjuris imprudent says:
orca
my apologies, I crossed my wires. ptt was the originator of the snark and I attributed it to you incorrectly when you quoted her bio-page.
March 15, 2010, 12:06 amProsecutorial Indiscretion says:
The L.A. Times appears to have launched an ill-advised crusade against Justice Thomas; witness this ridiculous hit piece misconstruing Justice Thomas’s Eighth Amendment jurisprudence in an effort to link him to the Yoo memos (and, unfortunately, this ridiculous hit piece based on it, from a site that does not usually stray this far into vapid partisanship when it purports to engage in legal analysis).
March 15, 2010, 12:20 amleo marvin says:
How? If he happened to marry someone apolitical, or even liberal, do you think his jurisprudence would change? I don’t, which suggests whatever his marriage to someone with extreme right wing views seems to illustrate is probably coincidental.
March 15, 2010, 12:22 amDavid M. Nieporent says:
The point is not that they support Nazis, but that they support free speech, and free speech is a political position as well as a legal one.
March 15, 2010, 12:38 amArthur Kirkland says:
Unless and until Ed says this is a libertarian or academic (in the sense of higher-planed) blog, I do not assume he is new here.
March 15, 2010, 1:23 amMichael says:
Justice Ginsburg used to volunteer for the ACLU, and her husband has pretty long-standing ties with Ross Perot. Justice Scalia’s family had a lot of history with store-front businesses in Trenton, NJ.
The point is only to pose this one simple query with regard to Mrs. Thomas: So?
March 15, 2010, 3:04 amKazinksi says:
An endorsement from Donald Rumsfeld carries a lot of weight to me at least. Not only was he Bush’s Secretary of Defense, he was also Gerald Ford’s, and one of Dick Cheney’s mentors.
Next to Cheney himself, Dick Armey, and possibly Phil Gramm I can’t think of another living conservative from the Ghengis Khan wing of the party I respect more.
March 15, 2010, 3:12 amPerseus says:
Exactly my point. Only those of a certain ideological ilk would regard it as self-evident that the listed organizations and individuals fall into the category of extremist wingnuts.
March 15, 2010, 3:16 amorca says:
If Virginia Thomas favs Rush Limbaugh, Mark Levin, Laura Ingraham and Glenn Beck aren’t the poster children for extremist wingnutism then who is?
March 15, 2010, 3:53 amAlanDownunder says:
Yeah, I know what you mean. His means are scarcely less predictable than his ends. There is firm adherence to principle. But the principle is political.
There may be surprise at, say, his favoring of states rights over federal criminalization of drug use, but that sort of thing is usually the result of a collision between tenets that are both dear to US “conservatism”.
I’m way less troubled by his wife’s wacko politics that by the domination of OLC torture memo authorship by his ex-clerks: John Yoo 1994-95, Patrick Philbin 1993-94, Jennifer Koester 2004-05, Steven Bradbury, 1992-93. A lot of firm political principle overriding a lot of firm legal principle right there too. Must be contagious.
March 15, 2010, 5:00 amDissenting Reason says:
No. If they are black, they are incompetent, idiotic, and illiterate.
March 15, 2010, 5:40 amDavid M. Nieporent says:
As long as we’re getting technical, Koester was a future clerk, not an ex-clerk.
March 15, 2010, 7:22 amepluribus says:
But I thought originalism required that we think in 18th century mode.
March 15, 2010, 7:44 amMichelle Dulak Thomson says:
orca & ptt,
Let me second juris imprudent’s apology for misattributing ptt’s “snark” to orca. Sorry to you both for not being more careful.
March 15, 2010, 7:46 amRove Fan says:
Is there no course of action the liberal will take in its attempt to discredit an “Uncle Tom”? Obama and his quack administration have equal authority to the entire lot of the Supreme Court yet this rag of a “news”-paper can’t be bothered to examine either him, his associates or HIS WIFE who clearly has more influence on our future than Justice Thomas’ wife.
America is awakening and the liberal news media continues to slide into obscurity as hits like this are no longer taken as truth and instead are understood for their intent. America is awakening to the truth behind liberalism as it is practiced today. November 2, 2010 will be remembered as the rebirth of our country.
March 15, 2010, 7:48 amepluribus says:
Ever hear about the danger of counting your chickens before . . . .? The Republicans are crowing pretty loud just now. A little premature maybe?
March 15, 2010, 8:00 amMichelle Dulak Thomson says:
AlanDownunder,
There may be surprise at, say, his favoring of states rights over federal criminalization of drug use, but that sort of thing is usually the result of a collision between tenets that are both dear to US “conservatism”.
I don’t think the two “tenets” are in the same category. Federalism (which you can call “states['] rights” if you want to give it a particular associational flavor) is the way our Constitution arrays our government. The “drug war” is a legislative initiative that (in Thomas’ view as I understand it) has to take place within the confines of that design. It’s not that there were two deeply desirable things that happened to be in conflict, so that one or the other must win; it’s that in Thomas’ jurisprudence, one automatically trumped the other.
Now, Scalia’s opposite position in Raich might be (was repeatedly here, in fact) taken as political expediency trumping principle.
You evidently think that two Justices — both called “originalist,” both called “conservative” — voting opposite ways on a closely divided case just proves that they’re both politically driven. Because, see, “conservatives” like federalism, and “conservatives” dislike drug use, so Scalia and Thomas were really both just politicking from the bench. On the same side. While voting in opposite directions.
Enh. Arguments that can “explain” anything are pesky things. What sort of bottle do you keep your universal solvent in?
March 15, 2010, 8:02 amRove Fan says:
I’m not a chicken farmer. What danger do I risk assuming the House and Senate are widely recaptured by conservatives in November?
If it were premature, under Obamacare I assume the panel would determine its long-term viability and potential for societal contribution before providing care.
March 15, 2010, 8:13 amSarcastro says:
Now that’s how ya play the race card!
March 15, 2010, 8:17 amRick T. says:
Like Senator Evan Bayh?
March 15, 2010, 9:05 amSteveW says:
According to the websites of the Delaware and Virginia Secretaries of State, Mrs. Thomas is the president of Liberty Central, Inc., which was formed on November 6, 2009, as a Delaware corporation and registered in Virginia one week before Citizens United was decided.
According to the LAT article linked by Mr. Volokh, “She said it would accept donations from various sources — including corporations — as allowed under campaign finance rules recently loosened by the Supreme Court.”
Shouldn’t Thomas have recused himself from Citizens United if his wife was positioning herself to take advantage of changes in the law by the Court?
March 15, 2010, 9:42 amCalderon says:
In response to Mark Field’s last post (the quoting didn’t work from some reason, probably user error):
On the first issue, as David Nierpont already has said, the political and legal positions of the ACLU likely were the same: i.e., we hate what the KKK stands for, but there’s a larger 1st Am issue here and we can’t have government picking and choosing among political positions. That is, both in their political message and their legal one the ACLU was asserting a right for the KKK to march, even if the ACLU found their beliefs deplorable.
On the second issue, about spouses sharing the same political beliefs, I see at least three problems. First, I don’t know of any survey information about the public’s view of this issue one way or the other. There are various high profile examples of spouses having different political views, so I don’t believe there’s a justification for assuming that the public believes all spouses share the same views.
Second, if spouses did share the same views, this would undermine the argument for recusal. I would assume that Virginia Thomas shares the same views on legal issues as Clarence Thomas, the one prominently and directly involved in legal decisions. Thus, V. Thomas (whatever her activities) would not affect C. Thomas’s views on legal issues since V. Thomas already had those views.
Third and probably most important, as EV notes each justice already has political views that have been shaped over their lifetimes.
Presumably, most people believe either that (1) justices can set aside their political views when deciding legal questions; or (2) justices cannot set aside their political views and make decisions, to some greater or lesser extent, on political bases.
If (1) is correct, then why would a spouse’s political views be any more important to a justice’s view of the law than say, a lifetime of litigation in support of a certain view of rights (Ginsburg) or extensive academic writings on various issues (Breyer and Scalia)? If a justice can rise above their own political views in deciding legal questions, they should be able to rise above their spouse’s political views as well.
If (2) is correct, the judges are already governed by political biases and — since judges could not possibly recuse themselves every time they’re confronted with a case where their bias comes into play — why would a spouse’s political views be more important than the various other political biases affecting a justice? This would especially be the case where the spouse’s political views are congruent with the justice’s own political views, as is apparently the case with V. Thomas and C. Thomas. There’s no reason to believe that V. Thomas would be causing C. Thomas to make some decision he wouldn’t make on his own, since they apparently have the same political views.
March 15, 2010, 9:45 amJoe says:
the political and legal positions of the ACLU
I don’t know if the ACLU in known for things like: “The group plans to issue score cards for Congress members and be involved in the November election, although Thomas would not specify how.”
“Political” is being used pretty broadly here, isn’t it? This applies to the main post. I also don’t find this in the least convincing: “matter of small numbers and the recency of women’s substantial participation in politics, rather than of any consciously accepted norm”
Really? Virginia Thomas is joining some nonprofit lobbying group. Women had “substantial participation” in such groups, including those that pressured political figures, for some time. If we are going to be generous in comparing legal advocacy to political advocacy, why not even include women with leading roles in the abolition or suffragist movement? Also, surely, women have for some time had participation in local politics too.
And, “of course” a Justice is not just any “judge.” Likewise, as a few noted, this is as much as a matter of newsworthiness, and it is more newsworthy. The legitimacy of it does not seem to be the main or at least only focus of the articles. This includes the newsworthiness of the group being open to corporate funding.
And, whatever, yes, discussions of justices should include similar acts by Ginsburg’s husband joining a coffee party group (if that is “liberal”) or some similar group. Since Reinhardt’s wife is not quite on the same level, articles might not discuss her. Why is this really a problem?
March 15, 2010, 10:12 amMark Field says:
I agree that there are political ramifications
to the ACLU position. The distinction I’d make is that the issue is only indirectly political, but first and foremost a legal one.
I probably should modify my previous comment to say that people will assume that spouses undertake significant projects with the support and approval of their spouse.
I agree that you’d make that assumption; so would I. In my view, though, the public at large doesn’t make that assumption or even know what Thomas’s politics are. By taking such an expressly political role, Virginia Thomas is (IMO) likely to undermine public confidence in the neutrality of her husband.
Let me repeat that I think she has every right to do this. Whether it’s wise for her to do it is a different matter.
There’s the third option, which I noted above: that most people are not knowledgeable about the political views held by SCOTUS Justices. Taking an expressly political role emphasizes those views. This would cause those who fall into your category #2 to think less of Thomas.
March 15, 2010, 10:20 amsteve s says:
You guys live in a different world than most of us. Of course you will be influenced by your wife’s beliefs. How can that even be doubted? There is no more influential court in the U.S. That cannot realistically be disputed. This is a valid topic for discussion that really does have long term implications. If nothing else it means that those who share political ideology with his wife gain access. This must be important given that lobbyists are paid millions for access.
We could just make this moot by acknowledging that on the Supreme Court it is ideology first and the law second. There are very few left in the country who think the court is actually impartial. If impartiality were actually important, then appearances and access would be important.
Steve
March 15, 2010, 10:32 amStephen Lathrop says:
Seems like almost every comment, whether objecting to Virginia Thomas’ political involvement or supporting it, is premised on the notion that the potential for harm flows from the possibility that Justice Thomas will be in a position to benefit her positions. The assumption seems to be that Justice Thomas might want to please his wife. If that were the problem it would be small potatoes, and those supporting her in doing what she pleases would have a pretty good case.
The more significant problem is that she is putting herself in a position to please him, by taking money from people who can claim they are supporting her policy initiatives, but who are in fact trying to buy influence with Justice Thomas. We see that kind of setup in politics all the time, where a relative of someone in power gets into the influence game. It’s always ugly, and often astoundingly successful. Tom Daschle and Joe Lieberman, for instance, both have wives selling policy influence, and doing very well at it. We can’t know how much influence their clients actually get, but we can see a great many dollars headed in the direction of the politicians.
The Thomas problem will be an order of magnitude worse than anything seen previously because it involves the Supreme Court. Lifetime appointment. Opaque procedure. Much greater real power than any member of Congress.
One unrelated comment: this particular thread shows to a greater degree than most an unfortunate tendency which infects many of them. Too many posters seem to come at every question as crusaders for the left or the right, or for the Ds or the Rs. That kind of thing is turning the nation into a collection of political idiots.
It ought to be obvious by now that we have giant crises on hand that have been caused by ideology, and that will only be solved by principled pragmatism. Not sure my previous posts have been free of a leftish bias, but I have tried to keep them principled, on topic, and pragmatic. I see others here who seem to do the same from the right, and I respect them and read them for the insight they might disclose. I wish more were that way.
March 15, 2010, 10:41 amSarcastro says:
[Accord with Stephen Lathrop. That Thomas, a partisan (though a principled one) has married a partisan of like mind is not shocking. The idea that she will influence him to be more partisan now that she's in an organization seems silly to me.
Thomas may have to recuse himself more, but that'll be a case-by case thing.
Not to happy with her ideology (Levin? Really?!), but that's not too probative of the Justice's views, and besides that ship sailed long ago.]
March 15, 2010, 10:51 amorca says:
Even if that’s a given, the answer to the question: Is it okay for the wife of a Supreme Court justice to open up a bank account that corporations can (and will) dump money into?
…would still be no.
March 15, 2010, 10:56 amnone says:
Thomas should recuse himself from every case, not because of anything having to do w/ his wife, but because he is an EPIC TARD who doesn’t understand the law
March 15, 2010, 11:22 amnone says:
LOL
March 15, 2010, 11:28 amhuh? says:
why all the talk about race or the fact she’s a women? you guys are weirdly preoccupied with some liberal-boogymen-taunts about the subjects.
and i could care less she’s involved in political groups — many judges and politicians’ spouses are. the only real news was that her new group can now get tons and tons of money because of a recent ruling of her husband’s. it’s that’s why, you know, people are talking about the possible conflict of interest, not that other stuff?
March 15, 2010, 11:36 amBored Lawyer says:
I practice IP law, mainly trademark and copyright. There used to be a federal judge here in New York who would consult his wife about the cases before him. “Honey, do you think these two trademarks are confusingly similer?” or “Do you think this piece of artwork was copied from this one?” He was quite open about it, and usually ruled as per his wife’s reactions.
March 15, 2010, 11:36 amBored Lawyer says:
In fact, IIRC, there is famous Second Circuit copyright case about a song by Cole Porter, “Begin the Beguine,” that was decided 2-1. It seems the judges played the two songs (original and alleged copy) for their secretaries. Two secretaries felt the accused song was a copy; the other didn’t.
March 15, 2010, 11:39 amepluribus says:
Stephen Lathrop:
March 15, 2010, 12:02 pmOne unrelated comment: this particular thread shows to a greater degree than most an unfortunate tendency which infects many of them. Too many posters seem to come at every question as crusaders for the left or the right, or for the Ds or the Rs. That kind of thing is turning the nation into a collection of political idiots.
Calderon says:
Mark Field said:
I agree that there are political ramifications
to the ACLU position. The distinction I’d make is that the issue is only indirectly political, but first and foremost a legal one.
Again, though I’m not sure that make any difference for determining the beliefs of a spouse or her influence. If Person A does political work for the ACLU, and Person B does legal work for the ACLU, I’d assume both have the same political views, viz., agreeing with the ACLU’s positions. Likewise for an operative of the Libertarian Party (political) and an attorney for the Institute for Justice (legal). In either case the spouse would be showing a preference / bias for particular political beliefs, and people would believe the spouse’s beliefs have whatever effect or lack of effect on the justice’s views.
I agree that you’d make that assumption; so would I. In my view, though, the public at large doesn’t make that assumption or even know what Thomas’s politics are. By taking such an expressly political role, Virginia Thomas is (IMO) likely to undermine public confidence in the neutrality of her husband.
There’s the third option, which I noted above: that most people are not knowledgeable about the political views held by SCOTUS Justices. Taking an expressly political role emphasizes those views. This would cause those who fall into your category #2 to think less of Thomas.
While I’m always hesitant to make assumptions about the public knowledge of the law for fear of overstatement, I’d still be willing to be most people given a list of S Ct justices would be able to identify Thomas as conservative. Moreover, this goes back to the point that justices can be influenced (or perceived to be influenced) by countless things other than their spouses. If an article talked about Ginsberg’s legal work for women’s rights, Scalia’s academic work on originalism and textualism, Breyer’s varied academic work, Roberts’ legal work primarily representing corporations, etc., why wouldn’t that undermine belief in public confidence to the same degree?
Separately, for the people claiming that this allows corporations, etc. to buy influence with Justice Thomas, two quick points. First, while I don’t claim to be a campaign finance experts, corporations could already make contributions to 501(c)(4) orgs before Citizens United. Indeed, I’d predict that Citizens United would be more likely to hurt than help 501(c)(4) orgs like V. Thomas’s since corporations no longer need to go through intermediaries to get their views across about candidates. Frankly, I thought some parts of the article were misleading about what Citizens United did (though if you read the article in a technical manner they were not incorrect).
Second, regardless of what a justice’s spouse does, there can be attempts to influence the spouse. Before starting her group, V. Thomas was an administrator at Hillsdale College. A S Ct litigant could have given the College a large donation to attempt to influence C. Thomas. Or if a S Ct’s spouse works at a corporation, a litigant could funnel contracts or other benefits to that corporation or division where the spouse works. Or if a S Ct’s spouse is an attorney, the litigation could send cases or transactions to the spouse’s firm. Or if the spouse worked at a non-profit to help feed the poor / heal the sick / make sure our children is learning, a litigant could have made donations to those ot influence the justice. And so on, ad infinitum. There’s no particular reason to believe her new position presents a more attractive target for corporate contributions than other occupations or positions.
March 15, 2010, 2:03 pmAnonsters says:
I guess it’s a good thing that I have never endorsed originalism. It’s pure bunk, papering over other factors that actually drive the decisions.
March 15, 2010, 2:13 pmStephen Lathrop says:
I can think of 2 particular reasons:
1. The organization founded by V. Thomas espouses an overtly political purpose, making it an ideal catch-all for money intended to influence policy outcomes. The other examples you cited have their own purposes, making it unlikely that donors would give them money intended to influence the donors’ own policy preferences. It is customary to give such independent organizations money to pursue the organization’s specific needs.
2. In the arrangements you specify, V. Thomas would not be the recipient of the donations. An organization employing her would be. That organization would have its own purposes of which it would be protective. It would be unlikely, discoverable, and clearly corrupt if V. Thomas’ employment at, for instance, Hillsdale College resulted in donations to the college by influence-seeking organizations, followed by coordinated payments from the college to V. Thomas, to enrich the Thomas household. Common sense suggests the arrangement V. Thomas has now announced is ethically more vulnerable than that one.
March 15, 2010, 2:33 pmStephen Lathrop says:
What is a principled partisan? Someone who supports allies no matter how crazy they become? Perhaps consistent partisan would be more apt.
For me the test of principle in politics is a willingness to part with allies for the sake of reason, higher purpose, or a pragmatic devotion to demonstrable public good.
March 15, 2010, 2:46 pmepluribus says:
Stephen Lathrop:
I wanted a few posts ago to agree with this observation by Stephen Lathrop, but pressing the wrong button prevented me from doing so. I am depressed that so many people here think they can analyze public policy issues merely by looking for the Ds or Rs behind somebody’s name. Partisanship has gone awry. We have real problems that cry out for real solutions, not mere cheerleading for one team or the other.
March 15, 2010, 2:49 pmJohn Herbison says:
What evidence is there that Clarence Thomas has any sensitivity to conflicts of interest? He was appointed by the first President Bush to a job that his principal qualification for was being a dark skinned, Republican toady. He joined four other Republican partisans in December of 2000 to anoint George W. Bush–the dimbulb son of the man who had put a lot of biscuits on the Thomas family breakfast table–as president in the most poorly reasoned Supreme Court decision of his own lifetime.
If that is not a terrific conflict of interest, what is?
March 15, 2010, 3:01 pmptt says:
Yes, a claim on his part to be “an ordinary citizen of Omaha, Neb.” would be just as ludicrous as Mrs. Thomas’.
March 15, 2010, 3:03 pmSarcastro says:
[A principled partisan is an idealogue.
An unprincipled one is all about the latest cult of personality.]
March 15, 2010, 3:04 pmHerb Spencer says:
In response to the call for discussion of as many H-W combos as possible, what this story and its posts demonstrate is exactly how insular the power structures are in our country. I don’t think that’s a good thing, from any political perspective, because – I can’t believe I’m about to use the “D Word” – that lessens true diversity in our government and its ability to innovate when required. I’m hardly calling for banning such “teams” – nor, God forbid, any sort of preferences other than intelligence and ability – but only expanding the “career open to talent,” as Napoleon called government service.
March 15, 2010, 3:05 pmMark Field says:
Because IMO the general public expectation — which we see reinforced in the confirmation hearings — is that the Justices will put aside those past actions and “just enforce the law”. Thus, continuing partisan activity calls judicial independence into question in a way that past actions don’t (whether they should or not is a whole different question).
March 15, 2010, 3:33 pmJeff Hall says:
Another data point:
http://www.indystar.com/article/20100313/LOCAL/3130349/Butler-won-t-have-Roberts-as-speaker
March 15, 2010, 4:10 pmbyomtov says:
Calderon,
Suppose a justice had a spouse who was the head of an ACLU branch. Should the justice be required to recuse him or herself from every case involving free speech,…
I was not making any sort of point about the NRA or any other organization. It’s just that the recusal question seems more difficult to me than Eugene suggests. He seems to think there is no need unless the spouse is an actual party to the case, or “involved,” which I guess might mean filing an amicus brief or something.
But I think this is too narrow, especially at the Supreme Court. After all, many litigants there are really symbolic of much broader movements and interests, and the decisions generally have an impact that extends far beyond the actual litigants. So to the extent that a spouse is particularly active on the particular issue addressed, it seems to me that there is a case for recusal. There is no use pretending that the typical Supreme Court case is like suing your contractor over kitchen renovations.
I don’t actually know what the most sensible policy would be. I was simply saying that I think the one EV proposes is too narrow.
March 15, 2010, 4:22 pmR. Allen says:
Our take:
http://www.95years.com/2010/03/15/citizens-united-watch-justice-thomass-wife-forms-conservative-lobbying-group-which-will-take-corporate-funds/
March 15, 2010, 4:32 pmArthur Kirkland says:
That string of facts concerning the legal work and players of the torture chapter — with the important caution that Mr. Bradbury’s overall performance struck me as substantially less blameworthy than Prof. Yoo’s — raises a question: Does Justice Thomas generate such people, or merely attract them?
Either way, it seems more important than most issues involving of a justice’s spouse grubbing for some ideologically driven donations.
March 15, 2010, 5:07 pmEli Rabett says:
Consider the Lieberman’s and the Daschles (before Tom when pro full time). The spouse makes a ton of money as a lobbyist while the other one claims that he ain’t lobbied by his spouse.
If you believe that there are at least two bridges in Brooklyn for sale cheap.
Here, what is especially concerning is that the funnel money to Thomas (she ain’t doing this pro bono) organization was registered BEFORE the decision was announced.
March 15, 2010, 5:41 pmJOEPHILLY says:
Come on, it’s all about the money. Does anyone think that Ginni is doing “equivalent” work for the Heritage foundation at the $208,100 Associate Justice salary? The Spousal money funnel is nothing new.
And BTW we could only wish Midge Rendell had been nominated instead of Mr. Thomas- she was and is a truly qualified lawyer and judge.
March 15, 2010, 5:47 pmJohn Herbison says:
Perhaps when one walks away from his own “lynching”, (whether hi-tech or lo-tech,) one comes to believe that he is no mere mortal, and the rules don’t apply to him.
March 15, 2010, 5:51 pmleo marvin says:
Generally, the Justices do attract and/or prefer ideologically compatible clerks, e.g., another ex Thomas clerk is Laura Ingraham. But there are plenty of notable exceptions. What I wonder is, did the Justices who hired the exceptions do so knowingly? Do any of the Justices actually ever go out of their way to hire a clerk with an opposing ideology?
March 15, 2010, 5:59 pmCalderon says:
Mark Field said:
Because IMO the general public expectation — which we see reinforced in the confirmation hearings — is that the Justices will put aside those past actions and “just enforce the law”. Thus, continuing partisan activity calls judicial independence into question in a way that past actions don’t (whether they should or not is a whole different question).
I generally agree with the first sentence, but not the second. I don’t think the public believes people are born again once they become Supreme Court justices. I’d think most people recognize that the new justices’ views are still shaped by their prior experiences. Thus, justices will need to continue to work on calling balls and strikes despite their prior activities in the same way they’d need to overcome current potential influences like those of their spouse, the views of their friends and colleagues, the views of organizations that are or were a member of, and so forth.
Stephen Lathrop said:
I can think of 2 particular reasons:
1. The organization founded by V. Thomas espouses an overtly political purpose, making it an ideal catch-all for money intended to influence policy outcomes. The other examples you cited have their own purposes, making it unlikely that donors would give them money intended to influence the donors’ own policy preferences. It is customary to give such independent organizations money to pursue the organization’s specific needs.
I’m not sure I quite follow the second and third sentences. It’s true that other organizations have their own purposes, but the organizations with most “charitable” purposes also make ideal catch-alls. Any corporation may donate to feed-the-poor, care-for-the-sick, etc. group for public relations reasons, and so those orgs are as much of a “catch-all” as anything. If a S Ct spouse is head of or a member of such an organization, then a donor could try to influence the spouse through giving to the specific charitable entities the spouse is a member of or head of. Likewise, if a spouse is at a law firm, many donors (and all large corporations) have legal work that some firm has to provide, so why not give it to the spouse’s firm. In short, I don’t see the “catch-all-ness” or “overtly political policy” of the organisation making a difference in the willingness of ability of donor’s to try to influence a spouse.
2. In the arrangements you specify, V. Thomas would not be the recipient of the donations. An organization employing her would be. That organization would have its own purposes of which it would be protective. It would be unlikely, discoverable, and clearly corrupt if V. Thomas’ employment at, for instance, Hillsdale College resulted in donations to the college by influence-seeking organizations, followed by coordinated payments from the college to V. Thomas, to enrich the Thomas household. Common sense suggests the arrangement V. Thomas has now announced is ethically more vulnerable than that one.
She’s going to be an employee of her 501(c)(4) organization as well, and so far as I know with a public disclosed salary. It would be just as easy for a spouse to embezzle money from a 501(c)(3) charitable org or a non-partisan 501(c)(4) as V. Thomas’s political 501(c)(4). Similarly, if a spouse were an attorney at a firm or a high-ranking officer at a corp they likewise would directly financially benefit from work offered by a S Ct litigant.
In short, I think what Gillers says in the article is correct that both C. Thomas and V. Thomas will need to monitor donations to avoid an appearance of impropriety and ensure his decisions aren’t affected. But I don’t think there’s anything special about the 501(c)(4) that makes that influence more or less likely. Justices who have working spouses will always need to be wary of litigants trying to influence them through their spouses (or other familty or friends for that matter).
Frankly, I really doubt corporations would try to influence S Ct justices by making monetary contributions to the organizations of a justice’s spouse simply because the blowback from being caught is too severe. As noted above by various commenters, S Ct cases tend to be subject to intense scrutiny that would make the likelihood of discovering any donations, giving work, etc. very high. And I especially doubt any litigant would try to influence Thomas because his views can usually be predicted (someone like Kennedy would be a better target, though still unlikely for the reasons in the prior sentence).
Separately, I have a couple of sincere questions based on people claiming that V. Thomas setting up a 501(c)(4) somehow is connected with Citizens United. First, isn’t it true that 501(c)(4) could accept corporate donations before Citizens United? Second, isn’t it true that the holding of Citizens United were that (a) corporations and unions (and presumably other organizations) have the right to run independent ads for or against candidates during elections; and (b) that the law preventing orgs like 501(c)(4) from running ads about candidates with 30/60 days of an election were unconstitutional?
If the answer to both of those questions is “yes,” then I don’t see how Citizens United helps V. Thomas. Before Citizens United, corporations had to use 501(c) orgs, 527 orgs, PACS, etc. to influence elections because they could not do so directly. After CU, corps can now spend money directly and so have less of a need for 501(c)(4) orgs or other intermediaries. This is true even though the restrictions on advertising near elections have been removed, since those restrictions also do not apply to corps. Thus, CU actually is more likely to harm 501(c)(4) orgs by removing corporations need to donate to them if the corp wants to campaign in an election — why provide money to an intermediary to campaign for or against a candidate when the corp can now do the campaigning directly?
March 15, 2010, 6:38 pmAnonsters says:
I agree.
It just happens that I disagree with almost every substantive position taken by the Republican Party.
Of course, I also disagree with many of the Democrats’ position, too.
And I still think Clarence Thomas is a loon.
March 15, 2010, 6:40 pmmarkm says:
Dan says:
I’d question how she’s going to benefit financially from a political advocacy organization – but are you claiming that it is in any way constitutional for the government to ban political advocacy organizations??? That is liberal fascism in spades.
As for your other implication, look up Thomas’s dissent the first time the McCain-Feingold act reached the SC, in 2003. It made Scalia’s most scathing arguments sound diplomatic. Or are you nuts enough to claim that he’s been angling to get this opportunity for his wife for seven years?
March 15, 2010, 7:10 pmDon de Drain says:
I am not a fan of Thomas as a Justice, or of his wife’s politics. But, I have conflicting thoughts about political activity by spouses of Supreme Court justices and by spouses of judges in general. I don’t like the idea of judicial spouses being limited in their political activity just because they are married to a judge/Justice. But I also don’t like the possibility that such activity creates a significantly increased risk of the appearance of impropriety.
Preventing the appearance of impropriety is important to help preserve whatever legitimacy you believe the Supreme Court still has. (Even if you are like me and believe that Bush v. Gore severely damaged the legitimacy of the Court, there are many much more mundane cases heard by the Court where raw politics likely has no effect on the outcome. [Try as they might,] Supreme Court Justices won’t be open partisan political hacks in most cases.)
How do you preserve legitimacy? By avoiding the appearance that your rulings are intended to provide aid and assistance to your spouse (or to those organizations from whom your spouse materially benefits, so that your spouse’s benefits will increase). As your spouse’s political activity increases, it becomes harder and harder to avoid the appearance of impropriety while being on the Court, unless you recuse yourself more and more.
Deciding where to draw the line here is difficult. As you move up the judicial food chain, you have to be more careful, as more is at stake.
Given that such political activity by a Supreme Court Justice’s spouse (apparently) has no precedent, and given that other judicial spouses have been heavily involved in politics, I tend to take a wait and see approach, and, at least for now, err on the side of allowing this type of activity. If Thomas engages in conduct that does not avoid the appearance of impropriety, then it will be time to revisit the issue.
I am quite happy that the issue of political activity of judicial spouses is getting press. This is an issue worthy of press attention, especially at the Supreme Court level, but also at lower levels. By all means, let’s look at this issue across the board, as it affects the perceptions of people from many different political persuasions.
March 15, 2010, 7:30 pmMoneyrunner says:
I’m interested by Arthur Kirkland’s use of the term “wingnut” to describe his ideological opponents. I commented on another thread about the imperative to avoid using the term “lie” if one wanted to remain in civil company. If “lie” is to be avoided by those who do not wish to be associated with knuckle dragging retards, it seems to me that those who use a lawblog to brand their opponents “wingnuts” are recent passengers on the intellectual short bus.
On the other hand, it is after cocktail hour in some time zones and Kirkland has been known to down a few.
March 15, 2010, 8:50 pmMichelle Dulak Thomson says:
Moneyrunner,
If “lie” is to be avoided by those who do not wish to be associated with knuckle dragging retards, it seems to me that those who use a lawblog to brand their opponents “wingnuts” are recent passengers on the intellectual short bus.
It seems to me that “wingnut” and “moonbat” (the opposite-of-the-spectrum equivalent) are pretty good indications that the speaker/writer is not amenable to rational argument. OTOH, use of “knuckle dragging retards” to describe any group is, in my experience, at least as accurate an indicator.
March 15, 2010, 9:08 pmMoneyrunner says:
I would venture to say that those on the Left here no longer believe that Thomas is a credit to his race.
I wonder if he could sell watermelons by the roadside if state troopers shopped motorists?
Come on, friends, you know what you want to say about Thomas, and you’re among friends. No one will talk. Let’s discuss those bitter clingers.
March 15, 2010, 9:13 pmAnonsters says:
You’re right. I no longer believe that Thomas is a credit to lawyers.
March 15, 2010, 9:15 pmMoneyrunner says:
Michelle, my Belle, you seem to lack a sense of irony. Unfortunately there no cure for that.
March 15, 2010, 9:16 pmMoneyrunner says:
In Dante’s inferno, lawyers typically went to the third tier in which they would spent an eternity trapped inside a burning, overheated, metal coffin with no room to move and little air to breath.
He appears to have escaped that Hell. You and the others, on the other hand …. well, we won’t visit. Perhaps we’ll send a card.
No, forget it. No cards.
Sincerely
March 15, 2010, 9:24 pmAnonsters says:
Moneyrunner, my Gentleman, you seem to lack a sense of irony. Unfortunately there [is] no cure for that.
March 15, 2010, 9:34 pmMoneyrunner says:
Imitation is the sincerest form of flattery.
March 15, 2010, 9:38 pmMichelle Dulak Thomson says:
Hey, Moneyrunner, if I’d known you were trying to be funny, I would’ve laughed. Honestly.
But my sense of humor must be slightly out of whack. So I won’t say what I think about your interesting travesty of the Inferno.
Ironic enough? ;-)
March 15, 2010, 9:39 pmMichelle Dulak Thomson says:
Moneyrunner,
Imitation is the sincerest form of flattery.
Which surely makes Oscar Wilde the most-flattered man in all human history (to the vast disappointment, I can’t but think, of generations of dead monarchs and nobles of all descriptions).
March 15, 2010, 9:42 pmMark Field says:
No doubt Sonia Sotomayor would agree.
I think we’ve reached a point where we just disagree. IMO, there’s an “in your face” quality to V. Thomas’s decision which speaks poorly for her judgment.
March 15, 2010, 10:13 pmStephen Lathrop says:
Two slurs in one sentence about being polite. Remarkable.
Here’s a note for those inclined to join Moneyrunner in heaping scorn on special education students. In Massachusetts students are tested against state curriculum standards acknowledged to be among the toughest in the nation. The results, by school and by grade, are published.
The school administrator in my town got out of hand. She started bashing special education demands on the school budget. Terrible local special ed test results she attributed to the “fact” that special education kids couldn’t be expected to learn. That point collapsed when it was shown that for every grade level, and every subject tested, the local regular education kids had been bested by special education students in at least one district elsewhere.
For many grades and subjects there were quite a few districts elsewhere where special education test results excelled the local regular education students. Intellectual short bus my eye.
March 15, 2010, 11:07 pmMoneyrunner says:
My goodness, Steve, such sensitivity! Such feeling! LMAO! I wish it extended to the people your co-conspirators slimed.
But you do exhibit the typical Liberal reaction when their slurs are confronted: you get all righteous and collapse on the fainting couch calling for smelling salts.
Save it for the gullible. There are millions of them. Check out the fading Obama bumper stickers on their cars. Still waiting for the CSPAN broadcast of the health care negotiations? Still waiting for Gitmo to be closed? Still waiting for the most ethical administration in history?
Sincerely,
March 16, 2010, 7:44 amMoneyrunner
epluribus says:
Mark Field says:
I agree. On a certain level, these situations have to pass a gut level test of propriety, and Mrs. Thomas’s situation doesn’t pass. In his defense, I’d guess that Justice Thomas doesn’t see the impropriety. But of course there are many other things he doesn’t see either.
March 16, 2010, 9:13 amSarcastro says:
So Moneyrunner was being a dick to make a point about how libs don’t call out their own dicks enough!
And then once his cunning trap was spring, he just keeps on being a dick, cause he’s earned it!
Bravo, sir, you have truly beaten the internet!
Sincerely,
Sarcastro
March 16, 2010, 10:39 amjdcolv says:
Justice Thomas wife sets up non-profit in January and encourages corporate contributions, which will not be disclosed. Citizens United decion which opens up corporate contributions and on which Justice Thomas is the deciding vote in a 5-4 decision is issued in February. Supreme Court Justices decide on their own recusal for conflicts of interest unlike other judges.
Seems like Justice Thomas has just found a rather creative way to funnel corporate payoffs for his vote on Citizen United and future decisions to the family kitty, eh!!!
March 27, 2010, 11:35 am