[Guest post by Aaron Worthing; if you have tips, please send them here.]
That is the effect, if not the deliberate thought behind it, of a letter that the Weiner composed, that was signed by seventy three other Congresspersons claiming that Justice Thomas should step down from hearing any appeal of Obamacare. Why? Because his wife is a lobbyist and works for the Heritage Foundation. He writes:
The appearance of a conflict of interest merits recusal under federal law. From what we have already seen, the line between your impartiality and you and your wife’s financial stake in the overturn of healthcare reform is blurred. Your spouse is advertising herself as a lobbyist who has “experience and connections” and appeals to clients who want a particular decision – they want to overturn health care reform.
Well, I did a little looking, and this appears to be the website of the lobbying firm. Go ahead, look through all of it. Do you see a single word suggesting that she will influence her husband’s decisions? Nope. The best they can do is claim she asserts that she has connections.
First, this is tantamount to saying that the spouse of a Supreme Court Justice can never serve as a lobbyist. Can you name a single lobbyist who doesn’t claim to have connections?
And what they want you to do is assume that those connections are solely the product of her marriage, to assume no one would be interested in her opinion, except as the wife of Clarence Thomas. Now, while that is the reason why she is a household name, if we can trust wikipedia, we learn that she actually has about thirty years of experience in Washington, working for Congressmen and Presidents, even before meeting and marrying Thomas, and before he was on the Supreme Court. She has built a respectable career for herself, on her own.
Moreover, your failure to disclose Ginny Thomas’s receipt of $686,589 from the Heritage Foundation, a prominent opponent of healthcare reform, between 2003 and 2007 has raised great concern.
The fact is that she has been earning money from Heritage for years, and Heritage … well, look at their site. They are not just a prominent opponent of Obamacare. They advocate on just about about every issue imaginable. And she has been with them since just before Bush became president. So by their logic, Thomas can’t be a justice at all!
Notice what they are not alleging. They are not claiming that anyone is paying her money so her husband would rule a certain way. And let’s drag a little law into this.
First, the Code of Judicial Conduct states that judges are positively encouraged to participate in public life, even advocating for causes they believe in:
Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.
Now the judge him- or herself is limited in their ability to advocate, but this Weiner would imply those same limitations on Mrs. Thomas—indeed greater limitations than the rules would apply to Mr. Thomas.
Second, the Code specifically gets into financial conflicts of interest, stating judges should recuse themselves if:
the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
Then later in the Code, it defines a key term:
“financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party
So it is emphatically not just receiving money from someone who might benefit in some tangential way. In other words, in the case of Fed Ex v. UPS, the fact that a judge’s husband is a file clerk for Fed Ex is not grounds for disqualification. So in fact this Weiner letter fails to even allege a financial interest, as that term is understood in the Federal Judicial Code.
But it gets even worse, and you will see I am not kidding when I say that they are claiming she is not allowed to work for anyone. They then go on to bring up the lame complaints about Citizens United as follows:
This is not the first case where your impartiality was in question. As Common Cause points out, you “participated in secretive political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the [5-4] decision” on the Citizens United case.
I confronted that silliness before, but it’s worth remembering what Common Cause’s argument was. It went like this. Thomas received money from a corporation as a speaking fee (except there was no evidence he received any money at all). In Citizens United, Thomas ruled that corporations have as much right to speak as any other actor. Thus even though the specific corporation that may have paid Thomas was not a party to that case, that corporation benefited and therefore Thomas should have recused himself.
But this Weiner letter goes further, dragging his wife into it:
Your spouse also received an undisclosed salary paid for by undisclosed donors as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections.
So according to them the mere fact she worked for a corporation means he must be disqualified. And by the same logic she would be unable to take work from a corporation or any other business entity (such as partnerships) as a subcontractor, she would unable to sell them anything they would buy, and so on. So basically, according to them, she can only work as a sole proprietor selling things and services to other sole proprietors, which makes it practically speaking, impossible for her to work.
So, stay in the kitchen, Ginny, the Weiner in Congress commands you!
This kind of sexism was discussed in another judge’s recent memorandum on the subject of recusal. In it, he wrote:
When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so.
Who was this jurist who wrote those words? Judge Reinhardt. And while I disagreed with much in his memo, I did agree that merely working for a group advocating in favor of gay marriage was not cause for Reinhardt to recuse himself. It was her actual participation in the suit that I had a problem with.
Anyway, the left will bray and act like, well, Weiners. But they have no cause.
[Posted and authored by Aaron Worthing.]
CONCURRENCE BY PATTERICO: I write separately merely to emphasize that the Reinhardt situation is quite different, as Aaron correctly notes. Reinhardt’s wife signed onto a brief in the very same case. Mrs. Thomas never did any such thing.
Also, as SPQR notes in comments (and as Scalia has pointed out before), the bar for recusal of an unreplaceable Supreme Court Justice is, understandably, much higher than that applicable to a judge on a federal Circuit Court of Appeals.