A Ridiculous Recusal Demand Aimed at Clarence Thomas

Supreme Court Justice Clarence Thomas in his chambers at the U.S. Supreme Court building in Washington, D.C., June 6, 2016. (Jonathan Ernst/Reuters )

Efforts to browbeat conservative justices into recusing themselves from any important Supreme Court case are standard fare from liberals and progressives these days (a tactic Donald Trump has aped by demanding that Justices Sotomayor and Ginsburg recuse themselves over criticisms of him, in Sotomayor’s case in written opinions). Colbert I. King, in the Washington Post, argues that Clarence Thomas should recuse himself from any case involving the 2020 election because Thomas has believed since 1991 that Joe Biden is a two-faced liar:

By any measure, Thomas’s confirmation hearing was one of the most acrimonious and polarizing congressional events of the 20th century. . . . The chairman of that committee was Biden, whom Thomas characterizes in his book as a liar. “A few days before I faced the Judiciary Committee, Joseph Biden invited Virginia [Thomas’s wife] and me to tour the Caucus Room in the Russell Senate Office Building where the hearings would take place,” Thomas wrote. He said Biden was reassuring, stressing that the hearings weren’t meant to be an ordeal. “He said that since I’d be nervous at first, he would start the questioning with a few ‘softballs’ that would help me relax and do my best, assuring me that he had no tricks up his sleeve.” . . .  At the break in the proceedings, young lawyers who had helped Thomas prepare for the hearing looked at the text of the speech quoted by Biden. “The point I’d been making [in the speech] was the opposite of the one that Senator Biden claimed I had made.” . . . “Senator Biden’s smooth insincere promises that he would treat me fairly were nothing but talk.” Before the committee vote, Thomas said he spoke to Biden on the phone. . . . Thomas wrote that Biden replied, “Judge, I know you don’t believe me, but if any of these last two matters come up [referring to Anita Hill’s allegations as well as a leaked draft opinion he had written as an appellate judge that had drawn criticism], I will be your biggest defender.” “He was right about one thing,” Thomas wrote. “I didn’t believe him.”

We went through this two years ago, back when Democrats still had high hopes for the Mueller investigation and Cory Booker demanded that Brett Kavanaugh recuse himself from any Mueller-related cases simply because Kavanaugh was nominated by Trump, a standard that had not been met during the Clinton and Nixon scandals by their appointees. The test for recusal from Supreme Court cases is very high: Elena Kagan did not recuse from the Obamacare cases even though she had been Solicitor General organizing some of the early legal defenses of Obamacare. Justice Breyer has criticized efforts to demand recusals:

“If you’re in a court of appeals and you’re uncertain, you know, it’s a sort of borderline, take yourself out of it,” Breyer said. “Because there are a lot of other judges who can step in.” But on the Supreme Court, “If you take yourself out of a case, it could affect the result. And therefore, you have to be careful on the one hand to take yourself out of the case if there is an ethical conflict of some kind, and not to take yourself out of the case if there isn’t, because you have to participate.”

It’s notable that King managed to get through writing this entire column without even mentioning that Justice Kagan once worked for Biden: As special counsel to the Senate Judiciary Committee for Supreme Court nominations, she spearheaded the confirmation hearings for Ruth Bader Ginsburg. Kagan took a leave of absence from her academic position to work for Biden then.

Given the two candidates in this presidential race, it highly likely that most or all of the Justices think one or both of Biden and Trump to be two-faced liars; Thomas is just the only one to have written it in a book. Chief Justice Roberts, in 2018, took the extraordinary public step of rebuking Trump for talking about “Obama judges,” which Roberts regarded as a threat to the legitimacy of the courts; Trump fired back on Twitter.

Of course, this is all still hypothetical. While litigation over the 2020 election is virtually inevitable given the current posture of the two sides and how the pandemic will unsettle voting and vote-counting, it is far from certain that the Supreme Court will get involved. It only did so in 2000 due to a particularly lawless supreme court of Florida trying to hand the election to Al Gore, and the justices clearly regretted getting the Court involved. There is obviously nothing Roberts would like less than to have the Court involved in another election decision. There are clearly fewer states in 2020 that (1) could potentially be decisive and (2) have out-there left-leaning state supreme courts (although one never knows what could happen if, say, a liberal Ninth Circuit panel does something eccentric about Arizona).

What is bizarre about King’s argument is that he blames Thomas for correctly recounting his own experiences in his own confirmation hearing. This is nothing like the long-running public personal feud between Eric Schneiderman and Donald Trump, for example. If the recusal standard is that Democratic senators can maltreat Republican nominees and then demand their recusal as a result of that maltreatment, that would create the most perverse of incentives. Even in the lower courts, it is hard to get a recusal based entirely on how a judge reacts to an abusive or dishonest litigant. Worse, it might create a standard in which the justices could be threatened publicly for purposes of getting them off cases.

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