It is pretty telling that every defender of this clear conflict of interest is using that trope, that we just want the little woman to shut up and behave.
Nobody has said that, and it is incredibly insulting. I tend to reject any argument out of hand that can’t be made without insulting the opposition, especially so egregiously.
Not every defender.
~Max
Fair enough. I should have said “only defenders”.
I retract the original phrasing.
I should note that Justice Thomas didn’t exactly issue an opinion covering up presidential communications from Jan 6. He only wrote that he wanted to block the release during the preliminary stage.
Thomas is strong on executive authority and I wouldn’t be surprised if his opinion on the merits is to give the President (i.e. Biden) full power over whether to release the documents.
~Max
And I wouldn’t be surprised if he couldn’t detail each and every single one of the innumerable elements – across the span of his lifetime – that informed his opinion, accurately assigning appropriate weight to each of those elements.
So maybe pillow talk with his wife was a significant factor.
It shouldn’t ever be (in a case where the apparent involvement of the spouse was so deep and so involved).
How would we know if it was or was not ?
I don’t see how this is relevant unless you are suggesting his wife is implicated by the documents being disputed. In which case I would expect the government to disclose this fact to the court, and the Justice to recuse himself.
~Max
But some will no doubt continue to maintain that just because Mrs. Thomas is admitted to have been closely associated with this criminal conspiracy and was in frequent contact with at least one of the main conspirators at the time they were planning their crimes, there’s no conflict of interest in her husband getting to decide whether the DoJ should get access to potential evidence against her.
As has been said repeatedly upthread, we don’t know whether Mrs. Justice Thomas could have liability/exposure by her actions.
That’s thing one.
An undue, and quite possibly extraordinary, influence on her SCOTUS Justice husband is also a judicial no-no.
That’s thing two.
It’s kind of the whole thrust of this thread.
It would be Mrs. Thomas’s responsibility, if she knew she was liable, to inform her husband that she has an interest in the case. Alternatively the government (Biden’s executive branch) could notify the court. In either of these cases I admit that Justice Thomas, after being notified of his wife’s liability, is ethically obligated to recuse himself. I don’t see any further obligation at this point.
Unless she is selling this influence (corruption) I don’t see why it would be undue, extraordinary, or a judicial no-no for a wife to have influence over her husband, the judge. In fact the ethics of recusal due to spousal involvement are predicated on the assumption that the wife’s involvement will influence the judge’s behavior. You can’t have it both ways, see?
~Max
No. Not even a little bit.
A federal statute requires the disqualification of any U.S. judge or justice for various financial conflicts, as well as in any other situation where their “impartiality might reasonably be questioned.” According to the leading SCOTUS precedent, Liljeberg v. Health Services (1988), the test is an objective one. It does not require evidence of actual bias, but only a showing that a reasonable person, with knowledge of the relevant facts, would believe that the judge or justice has created an “appearance of partiality.” The statute does not specify any particular process, and different federal courts have used varying procedures.
And the case referenced within:
I acknowledge your citations but do not see how they attack my position. What grounds do I have to question Justice Thomas’s impartiality as to the release of documents claimed as privileged? It is not alleged by anyone (with knowledge as to the contents of the documents) that his wife actually is implicated.
~Max
The only thing I can add to this thread is based on empirical observation in a career working directly with a number of judges over many years, and watching them determine self-recusals for cases before them. Cases, I will add, that were of far less legal import than anything before the SCOTUS.
Based on the facts in this instance, it would not have been a hard call for any of them. They would not have hesitated to recuse.
That appearance-of-impropriety thing is huge, and has been fully disregarded by Thomas. Shame on him.
Maybe there is something obvious I’m missing. This is nothing like the judge having an affair with the prosecutor, or serving on the board of directors (see Lilijeburg, cited above), or having financial investments in a party to suit (see early posts in topic). It’s nothing like the judge having previously handled the case for one of the parties involved (see Kagan, J. & Thurmond, J.).
~Max
The judge is having a marriage with a major person of interest.
What you’re missing is that actual impropriety is not required for a judge to self-recuse, and that’s been the way things are for… well, a really long time. The appearance is enough. And the appearance in this case is blindingly clear.
If she’s a person of interest it would be incumbent on the party seeking the documents - the investigative committee - to ask Justice Thomas to recuse himself on that basis. We may speculate that she is a POI weeks and months later, but we don’t get to go and retroactively judge Justice Thomas for not recusing himself, unless he should have known about the appearance of impropriety at the time.
~Max
That’s not how most in the legal community would look at it. And that’s the reason there’s such a huge outcry around Thomas’s failure to recuse. This is basically obvious to anyone involved in the field of law.
An analogy. Let’s say Judge T. has financial holdings in Microsoft. Judge T. hears a case totally unrelated to Microsoft, where the parties are company X and some aggrieved individual. Weeks after the judgment is handed down Microsoft announces they are acquiring company X. Yes, you have the appearance of impropriety. The individual may even get judgement vacated and remove the case to another judge, if the ruling was adverse to them. But you don’t necessarily say Judge T. violated ethics unless, at the time of the decision, he should have known there would be a (later) appearance of impropriety.
The ruling on Trump v Thompson was in January, and Mrs. Thomas came out as a POI last week. Unless I am mistaken.
~Max
I don’t think “appearance of impropriety” depends on whether you think you will successfully bury a story so that the public never has to see your apparent conflict of interest.
Upthread I wrote,
If Justice Thomas knew his wife would be implicated at the time of the decision (January) I see his failure to recuse as a grave breath of ethics (and, as pointed out, of law). It seems you are taking it for granted that Justice Thomas knew. I’m just being more cautious, and haven’t reached that conclusion.
~Max