{"id":1461304,"date":"2022-05-03T07:46:50","date_gmt":"2022-05-03T11:46:50","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1461304"},"modified":"2022-05-03T07:46:57","modified_gmt":"2022-05-03T11:46:57","slug":"lefty-professor-demanding-justice-thomas-recuse-over-wifes-texts-accidentally-explains-why-he-shouldnt","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/lefty-professor-demanding-justice-thomas-recuse-over-wifes-texts-accidentally-explains-why-he-shouldnt\/","title":{"rendered":"Lefty Professor Demanding Justice Thomas Recuse Over Wife\u2019s Texts Accidentally Explains Why He Shouldn\u2019t"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">28<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Flefty-professor-demanding-justice-thomas-recuse-over-wifes-texts-accidentally-explains-why-he-shouldnt%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1461304&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/05\/33918354610_b0fce7eb89_k.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>Efforts to change the outcome of Supreme Court cases by trying to force Justice Clarence Thomas to recuse himself continue apace, all based on new standards that have never been applied to any other judge or justice.\u00a0At last week\u2019s House Judiciary Subcommittee <a href=\"https:\/\/judiciary.house.gov\/calendar\/eventsingle.aspx?EventID=4921\">hearing,<\/a> Professor Stephen Gillers, a well-known judicial ethics expert, invented a new standard to block Justice Thomas from all cases regarding the 2020 elections and the events of Jan. 6, 2021, because of his wife Ginni Thomas\u2019s activities.\u00a0But he is wrong on the law and on the facts.\u00a0\u00a0<\/p>\n<p>At the outset of the hearing, where I was also a witness, Gillers did agree that none of Ginni Thomas\u2019s political activities before her texts with Mark Meadows required Justice Thomas to recuse himself from any case. This destroyed the prior Democrat and media narrative regarding past cases and revealed their complaints as the frivolous partisan attacks that they are.\u00a0<\/p>\n<p>Thus, the critics <a href=\"https:\/\/www.washingtonexaminer.com\/politics\/the-medias-war-on-clarence-and-ginni-thomas\">are wrong<\/a> that Justice Thomas was required to recuse himself from legal challenges to Obamacare because Ginni said it was a \u201cdisaster\u201d and urged the law\u2019s repeal.\u00a0Nor was a recusal required when she worked with groups on messaging, and those groups separately and without Ginni\u2019s involvement, filed amicus briefs before the Supreme Court.\u00a0\u00a0<\/p>\n<p>Consistent with the law\u2019s recusal provisions and the Supreme Court\u2019s <a href=\"https:\/\/eppc.org\/docLib\/20110106_RecusalPolicy23.pdf\">1993 Statement of Recusal Policy<\/a>, Justice Thomas has not had to recuse because Ginni has never been a party nor a litigant before the court, and she does not have an \u201cinterest\u201d that would be \u201csubstantially affected\u201d by the outcome of the case.\u00a0<\/p>\n<h2>Gillers\u2019s Defense of Judge\u2019s Wife Applies to Ginni Thomas<\/h2>\n<p>Gillers made the same point when he filed a <a href=\"https:\/\/www.law.nyu.edu\/sites\/default\/files\/ECM_PRO_075198.pdf\">brief<\/a> defending Ninth Circuit Judge Stephen Reinhardt\u2019s decision to not recuse from a case involving a challenge to a ban on same-sex marriages in California, even though his wife, Ramona Ripston, who was the head of an ACLU chapter, had spoken out forcefully against the ban and her group had joined two amicus briefs opposing the ban in the court below. <\/p>\n<p>He noted she was neither a party nor a litigant and had no interest beyond a general interest in \u201cendorsing an outcome favoring equality.\u201d\u00a0But in now arguing for Justice Thomas to recuse himself from 2020 election cases, Gillers claims that Ginni Thomas\u2019s conduct is different than what was at issue in the Reinhardt case.\u00a0<\/p>\n<p>A leak of text messages produced by former Trump White House Chief of Staff Meadows to the Jan. 6 Committee showed Ginni Thomas had texted Meadows, expressing concerns about fraud in the 2020 elections (concerns shared by millions of Americans), and urged Meadows and his team to stand firm and be leaders in exposing the fraud.\u00a0\u00a0\u00a0<\/p>\n<p>Gillers <a href=\"https:\/\/docs.house.gov\/meetings\/JU\/JU03\/20220427\/114685\/HHRG-117-JU03-Wstate-GillersS-20220427.pdf\">claims<\/a> that such texted encouragement changes the game, arguing that although \u201cjudges aren\u2019t disqualified because of a spouse\u2019s public views,\u201d here \u201cMs. Thomas sought greater influence in the legal battle by advising Mr. Meadows \u2026 [and she] joined that effort from the inside, giving her the kind of interest in the litigation that requires Justice Thomas\u2019s recusal.\u201d <\/p>\n<p>This is nonsense.\u00a0Such general \u201cattaboys\u201d do not make one part of the \u201cinside\u201d team, a legal adviser, or a person with interests different from the many others who encouraged, both publicly and privately, the president and others to continue their election challenges.\u00a0<\/p>\n<p>First, such private encouragement seems less troubling than public encouragement that Gillers admits would not require recusal.\u00a0And enforcing a standard triggered by private communications seems especially fraught. <\/p>\n<p>Would we require all spouses of judges to release private emails and texts? Perhaps tape dinner party conversations or phone calls?\u00a0Perhaps just ban all friendships and communication between judicial spouses and other political figures?\u00a0Opinions expressed privately or publicly do not create an \u201cinterest\u201d that would require a judge to recuse himself.<\/p>\n<h2>Reinhardt\u2019s Wife Was Far More Involved than Ginni Was<\/h2>\n<p>Second, in trying to distinguish the Reinhardt case, Gillers claims that Reinhardt\u2019s wife\u2019s organization had filed in the lower court and not in his court, but that \u201cthe Trump team \u2013 Mrs. Thomas\u2019s team \u2013 anticipated and then filed appeals to the Supreme Court and Justice Thomas did not recuse.\u201d This is astonishingly illogical.\u00a0\u00a0<\/p>\n<p>Ripston was the head of the ACLU chapter that filed an amicus brief in the district court.\u00a0She was a paid employee of that \u201cteam.\u201d As anyone who litigates understands, amicus groups routinely coordinate and brainstorm with the primary parties, in part so they do not repeat what the party already plans on saying. <\/p>\n<p>Given the magnitude of the constitutional issues at stake in a ban on same-sex marriages, Ripston knew that joining a brief in the lower court would make her views known to her husband in a legal filing in a case that would certainly go up on appeal to the Ninth Circuit. It is hard to imagine that neither she nor her subordinates failed to confer and coordinate with the primary parties in the case. And this was in addition to the views she publicly expressed on the issue. <\/p>\n<p>But in Gillers\u2019s blindered view, she was apparently not part of the \u201cteam\u201d and thus had no \u201cinterest\u201d in this case that would require Reinhardt\u2019s recusal.\u00a0It would seem that Gillers\u2019 malleable concept of being on the \u201cteam\u201d only applies if you happen to dislike or disagree with the \u201cteam.\u201d<\/p>\n<h2>Judges\u2019 Families Are Allowed to Have Political Views<\/h2>\n<p>Gillers has also now expanded his definition of \u201cinterest\u201d to family members who, even though neither they nor their groups appear before the court, may approve of the outcome.\u00a0Gillers would presumably require a Supreme Court justice\u2019s recusal from the Mississippi abortion case if one of that justice\u2019s children wrote a letter to the president or the attorney general defending abortion rights.<\/p>\n<p>Ginni Thomas\u2019s text messages expressing concerns about fraud in the election and urging Meadows to be a leader do not make her part of the legal battle or a member of the Trump \u201cteam.\u201d\u00a0She was not paid by the Trump administration and had no role whatsoever in developing strategy or legal arguments.\u00a0\u00a0<\/p>\n<p>Judge Reinhardt previously <a href=\"https:\/\/cite.case.law\/f3d\/630\/909\/\">concluded<\/a> that his wife had no \u201cinterest\u201d in the outcome of his case \u201cbeyond the interest of any American with a strong view concerning the social issues that confront this nation.\u201d\u00a0That is the same interest that Ginni Thomas had, and therefore Justice Thomas had no reason to recuse himself.<\/p>\n<h2>Executive Privilege Doesn\u2019t Apply to Ginni Thomas<\/h2>\n<p>Finally, Gillers claims the Thomases both have an interest in shielding her texts from litigation, which requires Justice Thomas to recuse himself from any cases challenging the results of the 2020 elections or Jan. 6.\u00a0<\/p>\n<p>But Gillers is wrong because President Trump\u2019s recent challenge asserting executive privilege regarding internal White House documents had nothing to do with Ginni Thomas.\u00a0By its terms, executive privilege claims only apply to communications between the president and his closest aides, so these documents could not have included Ginni Thomas\u2019s emails or texts.\u00a0\u00a0<\/p>\n<p>Additionally, any case that gets to the Supreme Court will already have a factual record developed.\u00a0It is at that time that Justice Thomas, consistent with every other justice, will review the parties, the litigants, and the issues before the court, and then decide if there is any basis for recusal.\u00a0<\/p>\n<p>Throughout this whole discussion since the most recent media attacks on the Thomases beginning in January 2022, there has been no case pending before the court challenging the 2020 election results or the Jan. 6 Committee for which Justice Thomas has to make that analysis.\u00a0<\/p>\n<p>Perhaps Gillers\u2019 relativistic standards are driven by his unhinged antipathy towards Ginni Thomas and her political views. While that may curry favor from partisans like Jane Mayer, who <a href=\"https:\/\/www.newyorker.com\/magazine\/2022\/01\/31\/is-ginni-thomas-a-threat-to-the-supreme-court\">quotes<\/a> his antagonism in her New Yorker attack piece on the Thomases (calling Ginni\u2019s conduct \u201creprehensible\u201d), it is no basis for a manufactured recusal rule that seems ripe for political abuse, both now and in the future.\u00a0\u00a0\u00a0<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Mark Paoletta served as a lawyer in the George H.W. Bush White House Counsel\u2019s office and worked on the confirmation of Justice Thomas. He is a senior fellow at Center for Renewing America, and partner at Schaerr Jaffe.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Efforts to change the outcome of Supreme Court cases by trying to force Justice Clarence Thomas to recuse himself continue apace, all based on new standards that have never been<\/p>\n","protected":false},"author":739,"featured_media":2315279,"comment_status":"open","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1461304","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1461304","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/739"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1461304"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1461304\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1461304"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1461304"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1461304"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}