Ginni Thomas is a rightwing firebrand, married to the supreme court justice Clarence Thomas. She is also wedded to the lie that Joe Biden stole the 2020 presidential election. In a recently revealed 10 November 2020 email to Mark Meadows, Trump’s then chief of staff, she opined: “The majority knows Biden and the Left is attempting the greatest Heist of our History.” It was up to Meadows to help overturn the election.
Unfortunately for all of us, Justice Thomas may agree with his wife’s political agenda. In February 2021, Thomas dissented from the rejection by the court of a challenge brought by Pennsylvania Republicans to the results of the 2020 election. He called the refusal by the six-person majority “inexplicable”, even as he acknowledged that the election had been “free from strong evidence of systemic fraud”.
Almost a year later, history repeated itself. His was the lone dissent in a January 2022 ruling that blocked Donald Trump’s efforts to shroud White House records from the 6 January special committee. Compounding the question marks, Thomas offered no rationale for his vote.
Against this backdrop, Thomas’ capacity to rule on matters pertaining to congressional investigations and elections is doubtful. Moving forward, he should recuse himself from those types of cases. And if that is too much to ask, Thomas should simply resign.
The code of conduct for US judges admonishes the federal judiciary not to “allow family, social, political, financial, or other relationships to influence judicial conduct or judgment”. In that same vein, the US code calls for disqualification where a justice’s “impartiality might be reasonably questioned”. By design, the law prohibits the personal from becoming the political.
Going back in time, conservatives became agitated when Elena Kagan, a Thomas colleague and Obama appointee, failed to recuse herself in the challenge to the Affordable Care Act. Their argument was straightforward. Kagan had served as solicitor general in the Obama administration and helped map a defense of the law.
At the justice department, Kagan emailed Laurence Tribe, saying of Obamacare: “I hear they have the votes, Larry!! Simply amazing.” She was nothing if not overtly partisan.
In response, Herman Cain – a candidate for the 2012 Republican presidential nomination – called for Kagan’s recusal and cited to the US code.
Over at the National Review, Eric Segall, a law professor at Georgia State University, wrote that Kagan should “recuse herself based on the undisputed fact that her office, the Office of the Solicitor General, and her top deputy … were undeniably involved, from the beginning, in the Obama administration’s litigation strategy”.
This time, however, the right is silent. Ginni Thomas is one of them, and then some.
She has served as a director of CNP Action, the dark-money branch of the deep-pocketed and well-connected Council for National Policy. To put things in context, at least six current or former CNP members helped promote “Stop the Steal” rallies. Brent Bozell IV, son of the CNP gold circle member Brent Bozell III, was arrested for storming the Capitol.
And then there is John Eastman, who clerked for her husband. Eastman finds himself at the center of the post-January 6 storm. He was a member of the Trump war room at the Willard hotel and begged Mike Pence not to certify the election. Eastman was up to his eyeballs in muck. Pence’s chief counsel, Greg Jacob, wrote him: “Thanks to your bullshit, we are now under siege.”
Undeterred, Eastman replied: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened.” These days, Eastman invokes his right against self-incrimination and battles congressional oversight.
Thomas and the right may care to draw upon the legacy of the late William Rehnquist, the former chief justice who presided over the 1999 impeachment trial of Bill Clinton.
In the summer of 1974, the supreme court confronted Richard Nixon’s claim of executive privilege in connection with the Watergate tapes, and Rehnquist faced a dilemma. He had previously served in the Nixon’s justice department, and Nixon had referred to him as “Renchberg” in a taped conversation. As a younger man, Rehnquist was a member of the “team”.
However, faced with Nixon’s appeal, Rehnquist recused himself. The court decided the case without his input or vote. In the end, the court rejected Nixon’s claim, 8-0. More likely than not, Thomas won’t choose Rehnquist’s path. Placating Ginni, nursing decades-old grievances, and drawing a paycheck is the easier route to take.
Lloyd Green is an attorney in New York. He was opposition research counsel to George HW Bush’s 1988 campaign and served in the Department of Justice from 1990 to 1992
