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What do Ginni Thomas’ texts mean to Judge Clarence Thomas? At the Supreme Court, it’s up to him to decide.



CNN

New revelations about efforts by conservative activist Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to overturn the 2020 election results shed a harsh light on the judges’ opaque process for handling disputes. interests and their lack of a formal code of conduct.

Chief Justice John Roberts has taken a ‘trust us’ stance over the years, although other justices have suggested an internal debate has taken place over whether the court should be covered by a formal code of ethics.

Three years ago this month, Judge Elena Kagan told a House committee that Roberts was considering adopting a code of conduct for judges.

“It’s something that is thought about very seriously,” Kagan said at the time.

But apparently nothing came of it and since then the controversies undermining public confidence in the activities of judges have only escalated. The latest related to Ginni Thomas comes as a new 6-3 Conservative majority, solidified by the addition of three appointees from former President Donald Trump, rolls back constitutional protections, including on abortion and the right of voting.

Judge Thomas, on the bench since 1991, now helps lead the transformed court.

This week, the Supreme Court’s politically charged confirmation process was also highly visible, as President Joe Biden’s choice of federal appeals judge Ketanji Brown Jackson suffered partisan distortions of his court record and activities. off bench. If confirmed, she would be the nation’s first black female judge in the court’s 233-year history.

Thursday’s developments renewed calls for clearer rules and greater transparency around when judges should disqualify cases.

The House Select Committee investigating the murderous Jan. 6 rampage on Capitol Hill is now known to have collected text messages between Ginni Thomas and Trump’s White House chief of staff Mark Meadows showing Ginni Thomas the begging to fight to annul the election results.

She offered thoughts on legal strategy, including the use of attorney Sidney Powell, and in a Nov. 10, 2020 post, wrote: “Help this great president stand firm, Mark!!! … You are the leader, with him, who defends American constitutional governance at the edge of the precipice. Most know that Biden and the left are attempting the greatest heist in our history. »

Justice Thomas has participated in Supreme Court cases related to the 2020 election controversies and, in a February 2021 opinion, dissented as the entire court declined to challenge mail-in voting procedures in Pennsylvania. . He demonstrated his support for the claim that voter fraud is a threat to America.

“We are fortunate that many of the cases we have seen only allege improper rule changes, not fraud. But this observation brings little comfort,” he wrote. “An election free of strong evidence of systemic fraud is not enough on its own for voter confidence.” No other justice joined his opinion.

Last January, Judge Thomas dissented on his own as the court authorized the National Archives to turn over thousands of documents from the Trump White House to the January 6 committee, about the former president’s attempt to assert executive privilege.

A source with ties to the Jan. 6 committee told CNN that the recently revealed text messages between Ginni Thomas and Meadows were part of a trove of documents that Meadows voluntarily gave to the committee when he briefly cooperated with its investigation. The documents involved in the National Archives litigation that went to the Supreme Court were part of a separate tranche.

After initially endorsing Ted Cruz as a candidate at the start of the 2016 cycle, Ginni Thomas has become a Trump loyalist. But the leaked text messages reveal a closer connection to Trump’s attempts to overturn the 2020 election results through legal efforts that could have landed in the Supreme Court.

The United States Code of Conduct for Judges provides ethical guidance for judges in lower courts, but does not specifically cover judges. Roberts said all nine look to this code of aspiration in their own behavior.

Separately and more relevant to the Thomas controversy, part of federal law requires judges and judges to disqualify themselves in any proceeding in which their “impartiality might reasonably be questioned.” This rule, under which all judges and justices of the peace fall, also requires recusal if a spouse “has a financial interest in the subject matter of the litigation or in a party to the proceedings, or any other interest which could be materially affected by the outcome of the proceed.

In general, the nine judges refuse to explain themselves in the rare cases where they miss a case.

The most common recusals come when a judge was involved at an earlier stage of a case, such as when Kagan, a former U.S. solicitor general who joined the bench in 2010, sat on disputes she had previously had. worked as an administrative lawyer. .

During confirmation hearings this week, Jackson told senators she would disqualify herself, if confirmed, from an ongoing dispute over Harvard’s racially-based affirmative action practices because she was a member of the Harvard Board of Supervisors.

Roberts has declined to address the broader topic in recent years, but in 2011 he said he had “complete confidence in my colleagues’ ability to determine when recusal is warranted.”

In a 2011 year-end report discussing ethical standards, Roberts said the court “does not judge the decision of one of its own members to recuse themselves in the course of deciding a case.” Roberts argued that the recusal dilemmas differ for members of the high court, compared to lower court judges.

“Judges of the lower courts may freely substitute for one another,” Roberts wrote. “If an appeals court or a district court judge withdraws from a case, there is another federal judge who can sit in place of that recused judge. But the Supreme Court consists of nine members who always sit together, and if a judge withdraws from a case, the Court must sit without all of its members. A judge therefore cannot withdraw from a case for convenience or simply to avoid controversy.

He said judges should not be swayed by public outcry or partisan demands. Under the Constitution, judges can only be removed from office by impeachment by the House and conviction by the Senate (the same process that applies to a president). A judge’s sentencing never took place, and only one member of the High Court ever resigned under threat of impeachment, Abe Fortas in 1969.

Supreme Court officials did not respond Friday to CNN’s requests for comment regarding judges’ ethics rules or new reports implicating Justice Thomas’ wife.

New feature on Clarence Thomas’ wife, Ginni Thomas

Generally, the court says little about these extracurricular activities — a trend that has led to more questions about its institutional integrity.

“The court should be concerned with its own legitimacy and if it’s not, Congress may have to step in, at least in terms of enforcing basic judicial ethics,” said researcher Russell Wheeler. guest at the Brookings Institution and former deputy director of the Federal Judicial Center, said Friday.

But Wheeler, who testified last year before the President’s Commission on the Supreme Court, warned that any congressional oversight of judicial ethics can present thorny issues related to judicial independence.

“Congress has a role to play in regulating judicial conduct, but it must balance the demands of accountability with the need for independent judicial decision-making.”

Among the latest revelations about Ginni Thomas, Wheeler said: ‘It is no fault of a judge to have a spouse deeply entrenched in highly controversial, even extravagant political activity. But what is Justice Thomas’s responsibility when appeals related to the 2020 election or the January 6 rioters end up in the Supreme Court? At the very least, there is an appearance problem.

This story has been updated with additional details.


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