Thomas Should Recuse

Open Letter to Chief Justice Roberts:

As an attorney and part-time judge for over 40 years I have been a proud defender of the Constitution and an advocate for the American Judicial System. The judges and lawyers who make up that system, by applying the law conscientiously and without favor, ensure that we remain a nation of laws and not of men and special interests. By adhering scrupulously to principles of ethics and avoiding even the appearance of favoritism, partiality and conflicts of interests, they give citizens confidence that everyone is treated equally under the law.

Practicing law or becoming a judge is a choice. Once a person makes that choice, it places substantial restrictions and obligations on lifestyle, friendships, and associations. These are real sacrifices, but they are necessary to make the system of justice work, and to ensure that it has the confidence and respect of the people who rely upon it.

We have recently observed Justices of the U.S. Supreme Court accept large gifts of personal property, forgiveness of loans, tuition payments, rental fee deferment, and luxury travel worth hundreds of thousands and perhaps millions of dollars. These gifts were given by a handful of people who, while they may not have been parties to cases immediately before the court, had strong ideological views which they hoped the Supreme Court would follow in cases they were to hear. In the particular case of Justice Clarence Thomas, many of these gifts were not even disclosed. The reason given was that these gifts were just from friends being hospitable, even though the “friends” only sought out Clarence Thomas after he became a Supreme Court Justice and the size of the gifts went far beyond hospitality.

Conflicts of interest have also arisen from family relations. Justice Thomas participated in a decision involving the constitutionality of the Affordable Care Act, knowing at the time that  his wife advertised herself as a professional lobbyist dedicated solely to repealing that law

Most recently Justice Thomas cast a vote against allowing court discovery of information about President Trump’s efforts to overturn the 2020 election, knowing his wife was actively working on Mr. Trump’s behalf, calling state legislators to convince them to take action against the so called “rigged” election results.

Even if a Justice thinks he or she can remain impartial in these circumstances, even a high school civics class would see that they create a strong appearance of impropriety given to the public. The result — only 18 percent of Americans have confidence in the court, a serious problem for our democracy.

It is time for the Chief Justice to take steps to stop justices from undermining the court’s credibility. The recently published ethics rules, the first ever, are a small step in the right direction, but are vague and notably lacking in enforcement provisions. Mr. Chief Justice, we know you care, so please step up and take charge of your court. Begin by requiring necessary recusals.