Should Ginsburg recuse herself from cases involving Trump administration?

[Falchion]

@Bricker

Well, yes, in cases of temporary orders, the appellate judges must engage in threshold factual determinations. Those are limited in effect; the trial will ultimately transform the stay into a permanent ban or dissolve it, and then appellate review will be deferential to the trial court’s findings.

Here, though, the biggest question is one of law: can Trump’s candidacy statements even be considered?

I don’t disagree with any of that. My point is simply that while Ginsburg’s (or any Justice’s) personal views of a president (or any Cabinet official), even if improvidently expressed publicly, wouldn’t logically prevent her from hearing most cases involving the Administration, cases where the court will make factual findings regarding the president personally present a different concern (one where, if the issue were neither the notorious RBG nor Donald Trump, we would view such comments as almost certainly disqualifying).

And, while I agree with your view on the “biggest” question, Thacker’s concurrence sets forth the “no-pre-oath statements considered” argument pretty well. It’s a weaker argument factually, but certainly one I could imagine a court accepting (and thus dodging the other question).

[Okrahoma]

@k9bfriender

Say the privately made video of them taking the oath were leaked. It wasn’t a public oath, but the oath is known by the public.

So, are you saying that such a judge should not recuse themselves, even after the oath has been made public? If they should, didn’t they have the obligation to recuse themselves even before the public learned of their conflict, as they obviously knew about it?

Yes, if such a video was made public, then the oath is public and they will have to recuse themselves. And yes he definitely had the obligation to recuse themselves beforehand as well, but since it was a secret and he didn’t volunteer to do so, what are you going to do?

Any more gotchas you would like to posit?

[Whack-a-Mole]

@Bricker

I agree with Reinhardt, not Whack-a-Mole, on this issue. No matter what position we might take on a judge’s direct interests, in other words, I content that in 2017 (as in 2011) the views of a wife regarding issues of public significance are her own, and cannot be imputed to the husband, no matter how prominently she expresses them. And of course in 2017, this is just as true about the views of the non-judge husband being imputed to his judge wife. And though we’re not there yet, it will be true when the judge and his husband are both considered, or the judge and her wife.

I agree with you and Reinhardt if the issue is merely about her personal opinions.

But that is not the case here. She has substantial financial interests wrapped up in these things. As husband and wife their finances are deeply intertwined and money she brings in directly benefits him.

That, in my book, is a conflict of interests.

[Whack-a-Mole]

@Okrahoma

The EO case - can you show me any “financial stake” that Ginny Thomas has in the outcome?

Sure. She gets paid as a lobbyist pushing a conservative agenda:

Ginni Thomas has been a vocal critic of the Affordable Care Act, and she has certainly made money off of that criticism. In 2009, she founded the Tea Party nonprofit lobbying group Liberty Central, which lobbied against the law. There, she made a salary of $120,000, according to the group’s 2010 tax filing.

A startup donation to Liberty Central to the tune of $500,000 came from Harlan Crow, a Dallas real estate investor, Republican donor, and friend of Justice Thomas, Politico reported in 2011. Crow declined to comment to the New York Times about whether he was the source of the money.

Ginni Thomas later stepped down as CEO and president of Liberty Central, but started Liberty Consulting in 2010, which also did anti-healthcare reform lobbying, according to the liberal site Mother Jones.

And in January 2011, it came to light that Justice Thomas had “inadvertently” left out information about his wife’s employment over the last 13 years—where her earnings added up to as much as $1.6 million, the Huffington Post reported.

One of her former employers: the Heritage Foundation, where Ginni Thomas made hundreds of thousands of dollars between 2003 and 2007, according to a letter from Thomas to the Committee on Financial Disclosure. The foundation has also been a vocal opponent of the healthcare reform law.

Thomas has repeatedly denied any conflict of interest.

SOURCE: https://www.usnews.com/news/blogs/washington-whispers/2012/06/22/meme-alleges-clarence-thomass-wife-got-15m-from-healthcare-act-foes

[Bricker]

@Whack-a-Mole

I agree with you and Reinhardt if the issue is merely about her personal opinions.

But that is not the case here. She has substantial financial interests wrapped up in these things. As husband and wife their finances are deeply intertwined and money she brings in directly benefits him.

That, in my book, is a conflict of interests.

Reinhardt’s wife was the Executive Director of the ACLU. I said this in my post, and Reinhardt’s quote closed with the words, “…because of her opinions or the views of the organization she heads.” That means she was paid to create the precise sort of change that Reinhardt’s court was contemplating.

[Whack-a-Mole]

@Bricker

Reinhardt’s wife was the Executive Director of the ACLU. I said this in my post, and Reinhardt’s quote closed with the words, “…because of her opinions or the views of the organization she heads.” That means she was paid to create the precise sort of change that Reinhardt’s court was contemplating.

Then I would suggest this is getting perilously close to a conflict of interest.

I think in the case of Ginny Thomas it is worse since as a lobbyist with her own lobbying firm there is a great deal more pressure for influence peddling as opposed to collecting a salary.

Bolding below is mine:

RULE 1.03: IMPROPRIETY AND ITS APPEARANCE

A judge shall avoid impropriety and the appearance of impropriety.7

COMMENT

[1] Public confidence in the judiciary is eroded by improper conduct by judges. The prohibition against acting with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. A judge must expect to be the subject of public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.8

[2] The test for impropriety is whether the conduct compromises the ability of the judge to carry out judicial responsibilities with integrity, impartiality, independence and competence. Examples of actual improprieties under this Rule include violations of law, court rules, or other specific provisions of this Code. **The test for an appearance of impropriety is whether the conduct would create, in reasonable minds, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, independence and competence is impaired.**9

SOURCE: https://www.americanbar.org/content/dam/aba/migrated/judicialethics/Canon1.authcheckdam.pdf

In the case of Clarence Thomas there was a lot of “appearance of impropriety” going on as numerous articles about it can attest to.

[Kobal2]

@Silver_lining

Is there mention in the constitution if a Judge breaks the rules and goes rouge?

No, but then again the Constitution is regrettably quite lacking when it comes to matters of sartorial or cosmetic import.

[ElvisL1ves]

If the position you have to hold to defend your client is “Well, see, he was lying then, but he’s telling the truth now!”, then you need either a new client or a new job.

[The_Tooth]

@Kobal2

No, but then again the Constitution is regrettably quite lacking when it comes to matters of sartorial or cosmetic import.

Which is lucky for modern Americans because the framers of the Constitution wore wigs.

[Bricker]

@Whack-a-Mole

Then I would suggest this is getting perilously close to a conflict of interest.

I think in the case of Ginny Thomas it is worse since as a lobbyist with her own lobbying firm there is a great deal more pressure for influence peddling as opposed to collecting a salary.

On the contrary, Thomas was her own boss; Ripston was more at risk of losing her job for lack of results.

But, again, Reinhardt’s point is: in the modern age, a judge’s wife is not an extension of the judge. She is a separate independent woman and her career interests are not correctly imputed to her husband’s.

[Really_Not_All_That_Bright]

@Bricker

On the contrary, Thomas was her own boss; Ripston was more at risk of losing her job for lack of results.

Thomas’ problem seems to have more to do with his failure to disclose his wife’s earnings, rather than the direct conflict. But I agree that standing alone, it doesn’t really matter whether his wife is a lobbyist so long as her employer isn’t a party.