# 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:** 5
**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, 2:50pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/81 "2011-11-18T14:50:59Z")
> [@John\_Mace](#): > > 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. Ok. So do you think SCOTUS judges should avoid the appearance of impropriety? ---
**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, 2:56pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/82 "2011-11-18T14:56:57Z")
> [@treis](#): > > Ok. So do you think SCOTUS judges should avoid the appearance of impropriety? Not necessarily. ---
**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, 3:08pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/83 "2011-11-18T15:08:44Z")
> [@Bricker](#): > > See what’s missing? Yes. I concede the point, and in fact I note that [legislation was recently introduced in the House to make the federal Code applicable to SCOTUS](http://thomas.loc.gov/home/gpoxmlc112/h862_ih.xml) (which appears to raise a separation of powers issue, but that’s another thread). > [@Little\_Nemo](#): > > 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. That doesn’t preclude their self-imposed and self-policed observation of a written code of conduct. I had assumed that the Supes had applied the federal code to themselves. [QUOTE=John Mace] > [@](#): > > Ok. So do you think SCOTUS judges should avoid the appearance of impropriety? Not necessarily. [/QUOTE] Really? You don’t think our highest court _should_ be held to the same standard that every other judge in the country must adhere to? ---
**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, 4:00pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/84 "2011-11-18T16:00:49Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Really? You don’t think our highest court _should_ be held to the same standard that every other judge in the country must adhere to? I don’t. As has been pointed out, a district judge may recuse himself, safe in the knowledge that another district judge will be named to preside over the trial, and that a superior court can always review the result.. A circuit judge may recuse himself, knowing another judge will be drawn to make up the panel, or that the _en banc_ group will simply be missing one judge of many – and that a superior court can always review their result. The Supreme Court has only nine members, and no superior court to save them. They cannot be held to the same standard as every other judge. This is not to say they should not be held to SOME standard. But their position is unique; their standard must be unique as well. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 18, 2011, 4:04pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/85 "2011-11-18T16:04:16Z")
Maybe because of that unique position, Supreme Court justices should be paid more and they and their spouses should be barred from having any financial ties to any potential litigants. ---
**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, 4:10pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/86 "2011-11-18T16:10:24Z")
> [@Acsenray](#): > > Maybe because of that unique position, Supreme Court justices should be paid more and they and their spouses should be barred from having any financial ties to any potential litigants. The SCOTUS would rule that unconstitutional, so you better make that an amendment. ---
**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, 4:10pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/87 "2011-11-18T16:10:28Z")
I’m not saying they should recuse themselves based on the same… “weight” of apparent impropriety. I’m saying they should be held to the same standard. As I pointed out earlier, the competing interests which must be balanced are obviously different for SCOTUS. ---
**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, 6:46pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/88 "2011-11-18T18:46:18Z")
> [@Acsenray](#): > > Maybe because of that unique position, Supreme Court justices should be paid more and they and their spouses should be barred from having any financial ties to any potential litigants. It’s difficult to imagine that kind of language surviving under current equal protection law. And again quoting Reinhardt: > [@](#): > > …my recusal under § 455(a) would still be appropriate only if a reasonable person with knowledge of all the facts would **reasonably** believe that, by virtue of my marriage, I might approach and decide this case differently than I would have otherwise approached and decided it. (emphasis in original) Does anyone believe that? ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [November 18, 2011, 7:50pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/89 "2011-11-18T19:50:56Z")
Let’s take this back a step. Forget about appearances. Bricker and John, do you believe that a Supreme Court justice should avoid actual impropriety in their conduct? Because the same code of conduct covers both actual and apparent impropriety, and if the latter doesn’t apply to the Justices (as it doesn’t), then the former doesn’t apply as well, right? So they can conduct themselves as improperly as they want, and that’s okay? ---
**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, 8:09pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/90 "2011-11-18T20:09:09Z")
> [@Bricker](#): > > It’s difficult to imagine that kind of language surviving under current equal protection law. > > And again quoting Reinhardt: > > (emphasis in original) > > Does anyone believe that? I think a judge’s wife shilling for money based on her ability to influence people in power would lead a reasonable person to question that arrangement. If, for example, I were a party in a case, and I found that the other party paid Thomas’ wife a lot of money to influence people in power to support the law I am appealing, well, I wouldn’t be very happy. I consider myself a reasonable person, and while I wouldn’t be able to conclude impropriety, the thought would do more than pass through my mind. ---
**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, 9:31pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/91 "2011-11-18T21:31:29Z")
> [@treis](#): > > I think a judge’s wife shilling for money based on her ability to influence people in power would lead a reasonable person to question that arrangement. If, for example, I were a party in a case, and I found that the other party paid Thomas’ wife a lot of money to influence people in power to support the law I am appealing, well, I wouldn’t be very happy. I consider myself a reasonable person, and while I wouldn’t be able to conclude impropriety, the thought would do more than pass through my mind. But not Reinhardt and his wife? Why not? Look, I have a theory. Tell me if I’m close. The ACLU fights for people’s rights, and so even if there is some undue influence there, it’s for a good cause. ---
**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, 11:26pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/92 "2011-11-18T23:26:03Z")
> [@Gadarene](#): > > Let’s take this back a step. Forget about appearances. > > Bricker and John, do you believe that a Supreme Court justice should avoid actual impropriety in their conduct? Because the same code of conduct covers both actual and apparent impropriety, and if the latter doesn’t apply to the Justices (as it doesn’t), then the former doesn’t apply as well, right? > > So they can conduct themselves as improperly as they want, and that’s okay? There is a procedure for impeachment and removal. I think that, if they are wise, they should avoid behavior that would trigger that procedure. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 18, 2011, 11:30pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/93 "2011-11-18T23:30:56Z")
> [@John\_Mace](#): > > Not necessarily. Gonna tell us why? ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [November 18, 2011, 11:36pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/94 "2011-11-18T23:36:20Z")
> [@John\_Mace](#): > > There is a procedure for impeachment and removal. I think that, if they are wise, they should avoid behavior that would trigger that procedure. Impeachment is a paper tiger. Neither party has the votes to do it unilaterally and at this point a Justice could bludgeon a kitten to death in the middle of the street whilst buggering a 10-year old boy and, as long as he/she was seen as a reliable vote, one side or the other would refuse to impeach. ---
**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, 11:36pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/95 "2011-11-18T23:36:55Z")
> [@ElvisL1ves](#): > > Gonna tell us why? It was an open ended question-- one man’s impropriety is another man’s “no big deal”. I’m sure that, in the justices’ minds, they do try to avoid the appearance of impropriety. It’s just that some people don’t agree with that assessment. But the fact is, only Congress can be the judge, and they seem to be OK with things. I don’t recall any serious attempts at impeachment recently. > [@Zakalwe](#): > > Impeachment is a paper tiger. Neither party has the votes to do it unilaterally and at this point a Justice could bludgeon a kitten to death in the middle of the street whilst buggering a 10-year old boy and, as long as he/she was seen as a reliable vote, one side or the other would refuse to impeach. And yet that is the only objective way we have to determine what behavior is not allowed. Sounds like you want to change the rules, which is fine. But I don’t see why they should abide by rules that don’t exist except as something some people wish for. ---
**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, 11:39pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/96 "2011-11-18T23:39:27Z")
> [@Bricker](#): > > But not Reinhardt and his wife? Why not? Because she isn’t shilling directly for money based on her contacts in government. As far as I know, the ACLU of SoCal does not use her in advertising, and does not claim to hold any special connections or ability to influence people in power. Nor does the ACLU offer a specific service based on donations. Any benefit to Reinhardt or his wife is indirect, specious, and lacking in credibility. In order for Reinhardt or his wife to benefit financially, her bosses would somehow have to deduce that specific donors are giving money based on her connection. They would then have to decide based on this information to give her a raise or a bonus. Basically it’s: I have a suit that might come up before Reinhardt. If I promise a donation to the ACLU they might chance their stance to suit my position, and they might pressure their director to lean on her husband, who might listen to her bosses, and then may be able to influence her husband. Then the ACLU might give a bonus to Reinhardt’s wife, who might connect it with a specific case, and then maybe I have her/him in my pocket. Contrast that with: I pay Thomas’ wife to advise me and use her connections to help my cause. One of those connections might be her husband, who is a SCOTUS justice. And maybe some of that advice will be based on conversations she’s had with her husband. Whatever the truth is, both know a lot more money will be coming their way if based on her advice and counsel, I prevail in my legal case. > [@Bricker](#): > > Look, I have a theory. Tell me if I’m close. > > The ACLU fights for people’s rights, and so even if there is some undue influence there, it’s for a good cause. You’ve got me counselor. I’m just a libtard reflexively fighting against conservative influence. As opposed to you, a paragon of impartiality and virtue, who would never, ever attempt to draw a tenuous parallel with a liberal judge to obfuscate the argument. ---
**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, 11:43pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/97 "2011-11-18T23:43:39Z")
And you didn’t exactly respond to my previous point. Do you, or do you not, think that SCOTUS judges should avoid the appearance of impropriety? ---
**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, 11:45pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/98 "2011-11-18T23:45:18Z")
> [@treis](#): > > And you didn’t exactly respond to my previous point. Do you, or do you not, think that SCOTUS judges should avoid the appearance of impropriety? Whose standard of impropriety are you suggesting we use? Justice Breyer, a peer but no ally in judicial temperament, is fine with Thomas not recusing himself. That’s not good enough for you? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 19, 2011, 12:26am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/99 "2011-11-19T00:26:08Z")
> [@John\_Mace](#): > > Whose standard of impropriety are you suggesting we use? I’m struggling to come up with a standard that doesn’t include your wife taking money for influencing prominent people in government. > [@John\_Mace](#): > > Justice Breyer, a peer but no ally in judicial temperament, is fine with Thomas not recusing himself. That’s not good enough for you? With all due respect to Justice Breyer it doesn’t seem he’s clear on Mrs Thomas’ lobbying activities. > [@](#): > > Breyer went on, “My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?” Practicing in a certain field is nowhere near taking money to influence people in government. ---
**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 19, 2011, 12:38am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/100 "2011-11-19T00:38:57Z")
> [@treis](#): > > I’m struggling to come up with a standard that doesn’t include your wife taking money for influencing prominent people in government. You’re not struggling very hard. “People” needn’t include members of the SCOTUS. > [@](#): > > With all due respect to Justice Breyer it doesn’t seem he’s clear on Mrs Thomas’ lobbying activities. Puh-leeze. He’d have to be living under a rock to not be familiar with the stuff being complained about in this thread. [Previous page](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077.md?page=4) [Next page](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077.md?page=6)