# Both Thomas and Kagan face pressure to recuse **URL:** \ **Category:** Great Debates\ **Created:** [November 16, 2011, 12:32am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077 "2011-11-16T00:32:09Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [November 17, 2011, 3:25pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/61 "2011-11-17T15:25:21Z")
> [@Bricker](#): > > Can someone propose a rule that would require Thomas to recuse himself, but not require Judge Reinhardt to have recused himself in the California same-sex marriage appeal when his wife was the Executive Director of the ACLU, which organization was in strongly in favor of retaining marriage rights for same-sex couples and had that as one of its published and funded goals? That’s easy - just draft a rule that’s extremely restrictive about a Justice’s direct connections to parties with an interest in or strong position on cases before the court (see my posts #12 and #13 in this thread), but doesn’t give a shit about their spouses’ interests. What do I win? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 17, 2011, 4:00pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/62 "2011-11-17T16:00:00Z")
> [@treis](#): > > Judges are not supposed to avoid only impropriety, they are supposed to avoid the appearance of it. Do you have a cite for this as it pertains to justices on the SCOTUS? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 4:10pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/63 "2011-11-17T16:10:18Z")
It’s a pretty well established rule: [QUOTE=ABA Model Code of Judicial Conduct] A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES [/QUOTE] It applies to Supreme Court justices just like everyone else; the difference is simply that there’s no higher court to censure SCOTUS members when they screw up, and there’s a practical limit on how much they can recuse themselves because there’s only 9 of them. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 6:03pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/64 "2011-11-17T18:03:57Z")
> [@treis](#): > > Because she isn’t taking money based on her ability to influence people in power. Sure she is. The ACLU’s mission is to influence people in power to change laws. As director, that’s her job. > [@](#): > > As a coalition partner in Equality For All, which works to secure same-sex marriage rights for Californians, the ACLU/SC has taken a lead role in the fight to end marriage discrimination in the state. The coalition urged that the ban on same-sex marriage be declared unconstitutional, charging that the law discriminates based on sexual orientation and sex, and violates the fundamental right to marry, which is protected by guarantees of privacy, intimate association and due process in California’s Constitution.. > . > . > . > The ACLU/SC has a long history with the quest for marriage equality in California. We championed the Religious Freedom and Civil Marriage Protection Act, which would have provided marriage equity for same-sex couples in California. Unfortunately, though it was passed by the Legislature, Gov. Arnold Schwarzenegger vetoed it. We celebrated California’s landmark legislation offering the most expansive protections for domestic partners in the nation, giving domestic partnership rights and responsibilities to gay and lesbian couples and putting them on equal footing with married couples when it comes to hundreds of state laws dealing with property rights, child custody, debt assumption, health care decisions and other issues. Though it did not provide the more than 1,000 rights and benefits afforded to married couples by the federal government, California’s courage was a victory worth celebrating. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 6:07pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/65 "2011-11-17T18:07:10Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s a pretty well established rule: > > It applies to Supreme Court justices just like everyone else; the difference is simply that there’s no higher court to censure SCOTUS members when they screw up, and there’s a practical limit on how much they can recuse themselves because there’s only 9 of them. The ABA’s Model Code doesn’t apply to judges. The ABA’s Model Code is a framework that states and the federal government may use in their own law. The Model Code may be applied as is or modified to fir the needs of a particular jurisdiction. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 6:09pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/66 "2011-11-17T18:09:27Z")
> [@RTFirefly](#): > > That’s easy - just draft a rule that’s extremely restrictive about a Justice’s direct connections to parties with an interest in or strong position on cases before the court (see my posts #12 and #13 in this thread), but doesn’t give a shit about their spouses’ interests. > > What do I win? Yes, that would do it. Of course, I suspect that if such a rule existed, then Thomas would not have had those connections to those pasties. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 17, 2011, 7:31pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/67 "2011-11-17T19:31:07Z")
> [@Bricker](#): > > Yes, that would do it. > > Of course, I suspect that if such a rule existed, then Thomas would not have had those connections to those **pasties**. Emphasis added. This definitely wins the typo of the month award. 🙂 But, I’m curious as to why you don’t believe that Kagan’s email would give a party the idea that she hadn’t already pre-judged the case. To use an extreme example, if Dio moved on in his life and was appointed to the Supreme Court, would he be qualified to hear a religious freedom case? (Not trying to pick on a former poster, just an example) ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 17, 2011, 7:49pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/68 "2011-11-17T19:49:16Z")
> [@Bricker](#): > > Sure she is. The ACLU’s mission is to influence people in power to change laws. As director, that’s her job. I’m sorry, I missed the part where she is advertising her connections to people in power in order to make money. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 17, 2011, 8:03pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/69 "2011-11-17T20:03:29Z")
> [@Bricker](#): > > I suspect that if such a rule existed, then Thomas would not have had those connections to those pasties. You’re saying that Virginia Thomas wouldn’t have agreed to dress up in that stripper costume if Clarence hadn’t agreed to vote the right way? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 17, 2011, 8:09pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/70 "2011-11-17T20:09:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s possible, but not exactly consistent with the role of the Attorney General. I think a better argument is that it’s possible for her to have supported its passage without making up her mind about its constitutionality, but that would depend on whether she was in office when it was drafted (I think she was). If you want to have an example of somebody separating the professional duties from their personal opinions, look at Salmon Chase. He was Treasury Secretary in the Lincoln administration. When paper currency was authorized during the war, Chase was the person that set up the program and issued the currency. Then he was named as Chief Justice. And as Chief Justice he ruled that the issuance of paper currency was unconstitutional. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 17, 2011, 8:17pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/71 "2011-11-17T20:17:04Z")
> [@Little\_Nemo](#): > > If you want to have an example of somebody separating the professional duties from their personal opinions, look at Salmon Chase. He was Treasury Secretary in the Lincoln administration. When paper currency was authorized during the war, Chase was the person that set up the program and issued the currency. Then he was named as Chief Justice. And as Chief Justice he ruled that the issuance of paper currency was unconstitutional. Did Chase send an excited memo to a friend about the passage of the paper currency bill? To me, that would be a better analogy. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 17, 2011, 11:58pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/72 "2011-11-17T23:58:02Z")
> [@John\_Mace](#): > > So, are you saying that Thomas would rule a certain way if he wasn’t married to his current wife, and that he rules a different way because of her influence over him? You and your strawmen. :rolleyes: The problem, since you persist in enjoying such childish stuff instead of engaging in the actual topic, is twofold: Thomas is less likely to be open to arguments based on his wife’s activism, and that even if that ship had sailed long ago, his wife’s activism against it degrades from the respectability of that vote and, by extension, that of the Court itself - for whom respectability of its decisions is critical to its very function. That’s how corruption and the appearance of corruption _work_. > [@](#): > > I thought the meme was that he just ruled with whatever Scalia says. Maybe I didn’t get the memo with the update. Do try to take this civics stuff seriously sometime. It affects you too. > [@jtgain](#): > > An email which says, “WE GOT THE VOTES! YAYAYAYAY!” (paraphrasing) is “superficial”? You really think that she is impartial? Read what I said again. The \*similarity \*Rove and Fox are drawing is superficial. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 18, 2011, 12:36am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/73 "2011-11-18T00:36:18Z")
> [@Bricker](#): > > The ABA’s Model Code doesn’t apply to judges. > > The ABA’s Model Code is a framework that states and the federal government may use in their own law. The Model Code may be applied as is or modified to fir the needs of a particular jurisdiction. I think you know very well that Canon 2 has been adopted in some form by every jurisdiction - including [the federal bench](http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx). I just quoted the ABA rule because I happened to have a link handy at work. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2011, 1:52am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/74 "2011-11-18T01:52:12Z")
> [@treis](#): > > Judges are not supposed to avoid only impropriety, they are supposed to avoid the appearance of it. > [@John\_Mace](#): > > Do you have a cite for this as it pertains to justices on the SCOTUS? > [@Really\_Not\_All\_That\_Bright](#): > > It’s a pretty well established rule: > > It applies to Supreme Court justices just like everyone else; the difference is simply that there’s no higher court to censure SCOTUS members when they screw up, and there’s a practical limit on how much they can recuse themselves because there’s only 9 of them. > [@Bricker](#): > > The ABA’s Model Code doesn’t apply to judges. > [@Really\_Not\_All\_That\_Bright](#): > > I think you know very well that Canon 2 has been adopted in some form by every jurisdiction - including [the federal bench](http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx). I just quoted the ABA rule because I happened to have a link handy at work. Yes. From your link: > [@](#): > > This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code. See what’s missing? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 18, 2011, 2:23am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/75 "2011-11-18T02:23:03Z")
> [@Bricker](#): > > Yes. From your link: > > See what’s missing? Yeah, your point. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2011, 3:29am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/76 "2011-11-18T03:29:12Z")
> [@treis](#): > > Yeah, your point. What’s missing is that justices of the Supreme Court are not on that list. As a point, I thought it was pretty clear. But do you see it now? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 18, 2011, 4:07am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/77 "2011-11-18T04:07:35Z")
> [@Bricker](#): > > What’s missing is that justices of the Supreme Court are not on that list. > > As a point, I thought it was pretty clear. But do you see it now? Is it that there is no problem if SCOTUS judges show the appearance of impropriety? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 18, 2011, 4:46am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/78 "2011-11-18T04:46:17Z")
Bricker has a legitimate point. The Supreme Court is a special case in terms of judicial ethics. They’re the top judicial authority in the country by definition. So who’s going to supervise their ethics? The Supreme Court is in the unique position of having to supervise itself on issues of judicial ethics. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 18, 2011, 6:14am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/79 "2011-11-18T06:14:55Z")
> [@treis](#): > > Is it that there is no problem if SCOTUS judges show the appearance of impropriety? It’s that the statement for which I asked for a cite has not cite. It’s an opinion of the poster here, not an established fact. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2011, 8:24am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/80 "2011-11-18T08:24:54Z")
> [@treis](#): > > Is it that there is no problem if SCOTUS judges show the appearance of impropriety? Depends on the appearance, but that wasn’t the point I was responding to. I answered **Really Not** ’s comment that claimed there was a codified rule that applied to the Justices. I quoted the entire exchange to make that clear. [Previous page](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077.md?page=3) [Next page](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077.md?page=5)