Let Thomas Rule on Obamacare
Liberals are calling for Justice Thomas to recuse himself from any ruling on Obamacare because his wife has lobbied against the law.
Liberal Congressmen are calling for Justice Clarence Thomas to recuse himself from any decision on Obamacare because his wife, Ginny Thomas, has worked against that law and received remuneration for doing so. We should be glad the Congressmen, unlike some other liberals, have called only for recusal.
The comparison of calls for Elena Kagen and Clarence Thomas to recuse on Obamacare is false moral equivalence. Clarence Thomas’s wife makes money at an organization that lobbied against the healthcare bill. Neither she, nor they are participating in the legal case. He, as far as is known, has done nothing regarding it. There is no judicial canon requiring Justice Thomas to recuse himself under these circumstances. It’s not as if Mrs. Thomas has a direct financial interest in Obamacare. She’s a renowned conservative. She will lobby against plenty of liberal legislation. Her financial situation, as far as is known, neither improves nor suffers (more than any other Americans) whether the legislation is found constitutional or not. She had no part in crafting the legal strategy of the parties and offered no legal advice as far as can be found out.
Elena Kagan, on the other hand, worked directly on the bill as it was moving through Congress. She was an actor in the very strategies used to get it passed and to withstand constitutional review. She personally worked for the administration and government that will be defending the law. Judex non potest injuriam sibi datam punere. No judge can punish a wrong done by himself or in the Anglo-Saxon, no man can be a judge in his own case. This is a difference that the Left refuses to see. Let’s contrast it with another recusal matter.
In California the notorious and much reversed (and it must be said often funny) Judge Stephen Reinhardt refused to recuse himself from the appeal of Judge Vaughn Walker’s ridiculous opinion striking down California’s same-sex marriage law. Judge Reinhardt’s wife was not a lobbyist but a lawyer directly involved with the litigant’s strategy Did the California congressmen who signed the letter on Thomas’s recusal sign one for Judge Reinhardt? As he is the most obnoxiously liberal appellate judge in the country, I tend to doubt it. Unlike Ed Whelan and Paul Mirengoff I think Judge Rheihardt’s situation is a close question. His wife is a prominent attorney working for the ACLU. A lot of things would come up in that situation. If she had not worked on this case I think it would be a no-brainer that merely working for the ACLU would require no recusal.
Justice Scalia famously wrote an opinion on recusal based on his being friendly with Vice President Cheney. If mere closeness between government officials was enough to recuse very little could be done with nine Justices in Washington D.C. The test for recusal is often not a bright line. It is not without interest that in both Judge Reinhardt’s and Justice Thomas’s case those who most want them recused do so because they think that even if the indicated spouses stayed home and baked cookies those judges would rule against them. Assortive mating has meant that increasingly high-powered professionals marry each other. In the judicial context this means wives, if politically active, will have many matters that touch on cases before the Court. The media touted the Thomas question but you see virtually nothing in the mainstream press of the odd circumstance of Judge Vaughn Walker getting the case, his disgraceful, twice reversed conduct during it, or the incredible circumstance of the biggest liberal theorist on the 9th Circuit getting put on the panel to review that decision.
An appearance of impartiality is required of judges. Walling their spouses off from politics is not.
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