The left’s intolerance toward an independent Supreme Court and its gaslighting tactics are on full display in the latest calls for Justice Clarence Thomas to recuse from the presidential immunity case the court will hear next week. MoveOn.org is even raising money off this absurd claim to pressure Justice Thomas to recuse. These thuggish tactics won’t work.
President Trump is presenting the argument that he is immune from prosecution for any official acts he took as president, including those related to the 2020 election integrity challenges and the events of Jan. 6,2021. The left demands that Justice Thomas recuse himself from this case and all Jan. 6-related cases because he has an alleged conflict of interest arising from his wife’s activities regarding the post-2020 election integrity challenges and the events of Jan. 6. But Ginni Thomas’ activities raise no conflicts of interest requiring Justice Thomas’ recusal from these cases, and it’s not even a close call.
Dishonest and Unfounded Attacks
Ginni Thomas is a longtime political activist. Like millions of Americans, she raised questions about fraud and irregularities in the 2020 election. The attacks on her, including in a recent piece by Professor Gary Simson, a longtime Justice Thomas hater, are dishonest and misleading.
For example, Simson claims she “tirelessly lobbied Republican state legislators to displace lawful electors.” That’s a lie. Ginni Thomas sent two prewritten form emails to a group of state legislators who were selected by others. She did not write the emails, did not edit them, and did not pick the legislators. She merely pushed the send button. That’s not even “worked a little” and certainly not “tirelessly lobbied.” The rest of Simson’s screed is of the same level of dishonesty.
Yes, Mrs. Thomas had significant concerns about potential fraud and irregularities in the 2020 election, and her minimal activity was focused on ensuring that reports of fraud and irregularities were investigated. This is nothing out of the ordinary. In fact, we have seen many instances of Democrats challenging election results and Hollywood actors encouraging Trump electors to vote for someone other than Trump in the certification process for the 2016 election.
Beyond that, Mrs. Thomas played no role in any events following the 2020 election. She briefly attended the Jan. 6 rally but left before President Trump spoke and long before some of the crowd went to the Capitol. She also condemned the violence on Jan. 6, which was reflected in one of her texts to White House Chief of Staff Mark Meadows at the time. Ginni Thomas’ activities were minimal and mainstream.
But don’t take my word for it. The congressional Select Committee to Investigate Jan. 6 requested to interview Ginni Thomas, and despite there being no legitimate reason to interview her, she fully cooperated with the committee’s inquiry. Mrs. Thomas voluntarily met with the committee for four hours and answered every question posed to her to the best of her recollection.
After this inquiry, the 100 percent partisan Democrat-appointed J6 Committee did not mention her name once in its comprehensive 845-page final report. Nor was Mrs. Thomas mentioned in any of the committee’s hearings. So much for Simson’s baseless argument that she had “intimate involvement” in the 2020 post-election activities.
Refusing to Recuse, a Precedent
In one of the most celebrated recusal cases in modern times, leftist Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit refused to recuse from an appeal of a challenge to a same-sex marriage ban despite his wife’s organization, the ACLU-Southern California chapter (ACLU-SC), weighing in in the district court proceedings below.
The ACLU-SC, and specifically its Executive Director Ramona Ripston, vocally opposed this law. In fact, the ACLU-SC joined two amicus briefs in the district court arguing that this amendment violated the U.S. Constitution. At the time, Ripston was married to Judge Reinhardt.
Judge Reinhardt refused to recuse, and his opinion setting forth his reasons should be read aloud by every critic who believes Justice Thomas must recuse from these Jan. 6-related cases because of his wife’s views:
[M]y wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. …
My wife has no “interest” in the outcome of this case that might be substantially affected by its outcome, over and beyond the interest of any American with a strong view concerning the social issues that confront this nation.
Five judicial ethics experts, including Professor Stephen Gillers, filed a brief in the U.S. Supreme Court supporting this decision:
Ms. Ripston’s opinions, views, and public pronouncements of support for the district court decision below do not trigger any reasonable basis to question Judge Reinhardt’s ability to honor his oath of office. A contrary outcome would deem a judge’s spouse unable to hold most any position of advocacy, creating what amounts to a disabling marriage penalty.
The left celebrated Judge Reinhardt for not recusing on this case and attacked anyone who raised any concerns about Reinhardt not recusing. But this fits a pattern where the left rarely if ever has any ethics concerns about the spouses of liberal judges.
The left did not have any concerns when Justice Ginsburg never once recused from cases in which her husband’s law firm represented clients in cases before the Supreme Court. She even ruled in favor of the clients of her husband’s firm.
The left had no problem when D.C. Circuit Judge Nina Pillard’s husband, David Cole, who is the ACLU’s national litigation director, publicly agreed with a district court judge’s ruling rejecting President Trump’s argument that he did not have to produce his taxes pursuant to a congressional subpoena, and then Judge Pillard participated in a full D.C. Circuit proceeding that allowed that district court ruling to stand.
Ginni Thomas does not have an “interest” in the presidential immunity case, which involves whether Trump has immunity for any official action he took as president, or any Jan. 6-related case that will come before the Supreme Court, as that term is defined in the statute. She is not a party, nor a lawyer in the proceeding, nor a witness, and she has no “interest that could be substantially affected by the outcome” of the case. Justice Thomas has no reason to recuse.
But the left likes to gaslight the American people by claiming Justice Thomas’ “impartiality might reasonably be questioned” in these cases, when they ignore all the other times they were perfectly fine with liberal justices sitting on cases where their spouse had some connection or more serious questions could be raised about impartiality.
[READ: If Democrats Are Worried About SCOTUS Ethics Rules, They Should Look Into Lefty Justices First]
It’s only Justice Thomas who must recuse from cases because his wife has expressed her views on a general topic, but, unlike Judge Reinhardt’s wife, never on the legal merits of a specific case before the court. This double standard also has a whiff of racism, with the left portraying Justice Thomas as heavily influenced by his wife’s views. Leftist memes on X showing Ginni Thomas removing a mask of her husband’s face to signal that it’s really her making these decisions reveal the despicable racism that characterizes the left’s ideology and decades-long campaign against Justice Thomas.
These attacks demanding Justice Thomas recuse have nothing whatsoever to do with ethics or a concern about the public’s trust in the court. The left’s recusal demands are meant to shrink the court so that the left has their preferred leftist justices deciding these cases. Thanks to Trump’s three appointments to the court, the left is furious they no longer have a court that acts like a super-legislature implementing left-wing policies like race-based affirmative action.
More generally, Simson and his leftist allies’ baseless and vicious smears are meant to undermine the public’s trust in the court and gaslight the American people to believe there is an ethics crisis. They should be ashamed of themselves and ignored as the partisans they are.
The author represented Ginni Thomas in the Select Committee to Investigate Jan. 6.
