Clarence Thomas would be wise to follow Ketanji Brown Jackson’s lead on recusals

Amid his own beclowing last week during Senate confirmation hearings for Ketanji Brown Jackson, Senator Ted Cruz of Texas pulled off a useful and remarkable concession from the judge: that, if upheld, she would recuse herself from a highly anticipated case challenging the legality of Harvard’s affirmative action policies. “It’s my plan, senator”, Jackson Recount Cruz.

The time has come and gone, but it illustrated how legal challenges work, or should work, in practice. The law states that any federal judge, including a Supreme Court justice, “will disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” And here, Jackson has publicly stated that her impartiality could reasonably be questioned if she sits on the judgment of an institution, Harvard, where she sits on its board of supervisors. It’s a simple enough case to walk away from, so Jackson was wise to put the issue to rest. In the days following Jackson’s hearings, her response took on a whole new relevance as the Supreme Court’s oldest justice, Clarence Thomas, raised his own red flags for his own real or apparent conflicts of interest over his involvement in several matters relating to the 2020 elections, as well as a high-profile January 6 matter related to Donald Trump.

Confirmation hearings are known for exactly the opposite scenario to Jackson’s: one where a candidate ties himself in knots to do not commit to recuse themselves from specific issues – such as when Amy Coney Barrett would not pledge to ignore a case challenging the constitutionality of the Affordable Care Act, which many Democrats believed it was set up to undermine. Or a possible prosecution by Trump complaining about a rigged election, which he noted only a full bench of nine judges should settle. Instead, the norm is to offer platitudes about remaining impartial and crossing the bridge of recusal later, if at all. Stephen Millers, a forensic ethics expert at New York University, could not cite an instance where someone aspiring to serve on the High Court had pledged to recuse themselves as Jackson did.

“I don’t know of a case where a Supreme Court nominee has made a promise of recusal,” he said in an email. “I believe there are such cases for lower court applicants, whether based on employment history or a relative’s work.”

(Disclosure: I am employed at an institute affiliated with Harvard Law School.)


This brings us to the Clarence Thomas problem. In January, he was the Unique The Supreme Court justice to report that he allegedly blocked the House committee investigating the Jan. 6 uprising from obtaining Trump’s White House presidential records. If these records mattered then, they matter even more now in light of the growing evidence of missing call logs and the likelihood that Trump used cellphones on the day of the attack. In December, a lower court allowed the production of documents to continue, following Biden’s decision decision that protecting Trump’s records from the committee “is not in the best interests of the United States.”

Luckily for us, the Supreme Court found this matter serious enough not to upset the lower court’s judgment. “The questions of whether and under what circumstances a former president can obtain a court order restraining the disclosure of confidential documents from his tenure, in the face of a decision by the outgoing president to waive privilege, are unprecedented and raise serious concerns and substantial. “, the judges wrote in an unsigned command. Thomas was the only one who didn’t go, but he didn’t explain why.

But now we know why. Where do we do? Last week, reporting partners Bob Woodward and Robert Costa, of The Washington Post and CBS News, respectively, announced the news that in the aftermath of the 2020 election, the wife of Thomas, the notorious conservative activist Ginny Thomas, sent a series of frantic text messages to Mark Meadows, then Trump’s chief of staff. His pleas, as reported, were as undemocratic as they were deranged: they sought, in his words, to stop the Democrats from stealing the election and let Donald Trump stay in power. “We are living in what feels like the end of America,” she wrote in one of the posts.

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