Legal ethics experts agree: Justice Thomas must recuse in insurrection cases

Legal ethics¹ experts agree: Justice Thomas must recuse in insurrection cases

　　Transcript²

　　Supreme³ Court Justice Clarence Thomas and his wife, Ginni, find themselves increasingly in the eye of an ethics storm over her repeated texts urging then-White House Chief of Staff Mark Meadows to take steps to overturn the 2020 presidential election results. Those texts have raised questions about what Justice Thomas knew about his wife's activities, and when he knew it.

　　Each day seems to bring another piece of bad news for the couple — from reports that the House Jan. 6 committee intends to invite Ginni Thomas to testify, to Monday's decision by a federal judge in California finding that it is "more likely than not" that former President Donald Trump⁴ violated the law and "corruptly⁵ attempted to obstruct⁶" Congress in his attempts to overturn the 2020 election.

　　The decision came in a dispute between pro-Trump attorney John Eastman and the Jan. 6 committee, which was seeking a discrete⁷ set of documents. Eastman asserted that the documents were protected by attorney-client privilege, but U.S. District Judge David Carter largely rejected those arguments, ruling that Eastman must turn over 101 of the disputed 111 documents.

　　The ruling could well end up before the Supreme Court, providing yet another instance in which Justice Thomas will have to face a recusal decision.

　　Trump White House phone records show 7-hour gap on Jan. 6

　　Texts muddy the water

　　The modern day code of judicial⁸ conduct assumes that married couples have separate careers and opinions. Legal ethics experts have long taken the view that while Ginni Thomas is an outspoken⁹ conservative activist¹⁰, her husband is able to act as an independent judge on matters that come before the court, even matters that may touch on subjects of interest to Ginni Thomas.

　　But in the aftermath of the 2020 election, while Ginni Thomas was actively¹¹ strategizing with the White House chief of staff on overturning the election results, Justice Thomas repeatedly participated in cases that came to the court directly or indirectly¹² involving those election results.

　　One of these was the court's decision in January, requiring that Trump's White House records be turned over to the House committee investigating the Jan. 6 riot at the U.S. Capitol. Only one justice disagreed: Clarence Thomas.

　　Ginni Thomas's newly released texts and her husband's failure to recuse himself in the congressional subpoena¹³ case have pulled the couple into an ethics vortex.

　　Judicial ethics experts weigh in

　　"The subpoena of documents when his wife's own texts are among the pile of documents responsive to the subpoena — that's a slam dunk," says Richard Painter, who served as ethics counsel for the George W. Bush White House. "He had to recuse. He didn't. I'd want to know why," he continued.

　　NYU law professor Stephen Gillers, author of a leading text on judicial ethics, agrees. "It was his obligation as a justice under the recusal statute¹⁴ to ensure that nothing she had been doing warranted his recusal," he says, adding that Justice Thomas "could not maintain a kind of false ignorance, closing his eyes and ears."

　　Why didn't Thomas recuse? James Alfini, dean emeritus¹⁵ of South Texas College of Law and also a judicial ethics expert, speculates that Thomas "didn't want to embarrass his wife" or himself for that matter.

　　Each of these experts on judicial ethics previously¹⁶ argued that Ginni Thomas's political life did not create a conflict of interest requiring Justice Thomas to recuse. But this time, they all agree that Ginni Thomas crossed the line, and so very likely did her husband in not recusing himself from cases that came to the court involving election challenges brought by Trump and his allies.

　　Supreme Court justices aren't covered by ethics rules

　　"I think this is different," says Charles Geyh, a legal ethics professor at Indiana University, Bloomington. "There's a difference between having a spouse¹⁷ who has an active interest" in seeing the law changed and "someone who is actually part of the story" of the case, he explained. "I don't know how someone could be impartial¹⁸ when their spouse is part of the record that may be before the judge."

　　Geyh notes that the federal recusal statute requires a judge to step aside when he or she has knowledge of disputed facts in the case, and Ginni Thomas' texts were part of the larger factual record that was produced pursuant to the Jan. 6 committee's subpoena.

　　Former Bush ethics adviser¹⁹ Painter, who is now an ethics professor at the University of Minnesota, is blunter: "He should make it clear that he's going to recuse from all of these Jan. 6 cases at this point."

　　There is, however, no way to force Justice Thomas to do that. The Supreme Court has made clear it considers the judicial code of conduct as guidance that it tries to follow, but is not obligated to do so. It is different from other courts because it is a court of nine. Unlike the lower federal courts, where there are lots of other judges to step in when a judge is recused, nobody can substitute for a recused Supreme Court justice; a tie vote leaves the case unresolved, and unnecessary recusals may undermine the interests of justice.

　　Moreover, under longstanding practice, each justice decides for him or herself when to recuse.

　　Few real options

　　So, what is the remedy if a judge goes rogue²⁰? The Constitution provides for just one remedy: impeachment²¹. But that would be "a folly," says professor Alfini. Only one justice has ever been impeached²², and he was subsequently acquitted²³.

　　What's more, as professor Geyh notes, "Judges make innocent mistakes all the time," and they get reversed on appeal. "The only time they get disciplined" is "if they willfully failed to disqualify" in violation²⁴ of the judicial code of conduct.

　　The fact is that there are some 25,000 judicial officers in the country, just nine of whom are not subject to the code of conduct, and those nine, Geyh observes, are "the most powerful judges in the country, if not the planet."

　　The Clarence Thomas recusal conundrum²⁵ is the most vivid example of a court that has neither a system of accountability nor a system of transparency when it comes to recusal. There is no requirement for justices to disclose why they are recusing, nor is there a requirement that they provide an explanation on the rare occasion when one side in a case formally requests recusal and the justice declines to recuse.

　　The Thomas recusal matter, though, appears to have arisen at just the wrong time for the court. It comes at a time when justices have been desperately²⁶ trying to persuade the public that the court is not a partisan²⁷ institution.

　　As professor Geyh observes, justices are going on an "I am not a political hack²⁸ tour" at the same time that Thomas is "part of the problem he is being called upon to resolve as a justice," all of which provides for "uniquely bad optics." Indeed, public opinion surveys indicate that approval of the court has dropped precipitously, from 68% approval in a 2019 Annenberg survey to 40% in a Gallup poll last fall.

　　Legal ethics experts seem to agree that now is the time for the court to write its own ethics rules. If the justices did that, they could create a mechanism²⁹ for a justice who is unsure about recusal to submit the question to the other members of the court. It may not be an ideal solution, but neither is the status quo.

1 ethics   

n.伦理学；伦理观，道德标准

参考例句：

• The ethics of his profession don't permit him to do that.他的职业道德不允许他那样做。
• Personal ethics and professional ethics sometimes conflict.个人道德和职业道德有时会相互抵触。

2 transcript   

n.抄本，誊本，副本，肄业证书

参考例句：

• A transcript of the tapes was presented as evidence in court.一份录音带的文字本作为证据被呈交法庭。
• They wouldn't let me have a transcript of the interview.他们拒绝给我一份采访的文字整理稿。

3 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

4 trump   

n.王牌，法宝；v.打出王牌，吹喇叭

参考例句：

• He was never able to trump up the courage to have a showdown.他始终鼓不起勇气摊牌。
• The coach saved his star player for a trump card.教练保留他的明星选手，作为他的王牌。

5 corruptly   

腐败（堕落）地，可被收买的

参考例句：

• Ah sinful nation a people a seed of evil-doers, children that deal corruptly! 这作恶犯罪的国家，这邪恶败坏的人民，你们要遭殃了！
• Alas, sinful nation, People weighed down with iniquity, Offspring of evildoers, Sons who act corruptly! 犯罪的国民，担着罪孽的百姓，行恶的种类，败坏的儿女。

6 obstruct   

v.阻隔，阻塞(道路、通道等)；n.阻碍物，障碍物

参考例句：

• He became still more dissatisfied with it and secretly did everything in his power to obstruct it.他对此更不满意，尽在暗里使绊子。
• The fallen trees obstruct the road.倒下的树将路堵住了。

7 discrete   

adj.个别的，分离的，不连续的

参考例句：

• The picture consists of a lot of discrete spots of colour.这幅画由许多不相连的色点组成。
• Most staple fibers are discrete,individual entities.大多数短纤维是不联系的单独实体。

8 judicial   

adj.司法的，法庭的，审判的，明断的，公正的

参考例句：

• He is a man with a judicial mind.他是个公正的人。
• Tom takes judicial proceedings against his father.汤姆对他的父亲正式提出诉讼。

9 outspoken   

adj.直言无讳的，坦率的，坦白无隐的

参考例句：

• He was outspoken in his criticism.他在批评中直言不讳。
• She is an outspoken critic of the school system in this city.她是这座城市里学校制度的坦率的批评者。

10 activist   

n.活动分子，积极分子

参考例句：

• He's been a trade union activist for many years.多年来他一直是工会的积极分子。
• He is a social activist in our factory.他是我厂的社会活动积极分子。

11 actively   

adv.积极地，勤奋地

参考例句：

• During this period all the students were actively participating.在这节课中所有的学生都积极参加。
• We are actively intervening to settle a quarrel.我们正在积极调解争执。

12 indirectly   

adv.间接地，不直接了当地

参考例句：

• I heard the news indirectly.这消息我是间接听来的。
• They were approached indirectly through an intermediary.通过一位中间人，他们进行了间接接触。

13 subpoena   

n.（法律）传票；v.传讯

参考例句：

• He was brought up to court with a subpoena.他接到传讯，来到法庭上。
• Select committees have the power to subpoena witnesses.特别委员会有权传唤证人。

14 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

15 emeritus   

adj.名誉退休的

参考例句：

• "Perhaps I can introduce Mr.Lake Kirby,an emeritus professor from Washington University?"请允许我介绍华盛顿大学名誉教授莱克柯尔比先生。
• He will continue as chairman emeritus.他将会继续担任荣誉主席。

16 previously   

adv.以前，先前（地）

参考例句：

• The bicycle tyre blew out at a previously damaged point.自行车胎在以前损坏过的地方又爆开了。
• Let me digress for a moment and explain what had happened previously.让我岔开一会儿，解释原先发生了什么。

17 spouse   

n.配偶(指夫或妻)

参考例句：

• Her spouse will come to see her on Sunday.她的丈夫星期天要来看她。
• What is the best way to keep your spouse happy in the marriage?在婚姻中保持配偶幸福的最好方法是什么？

18 impartial   

adj.(in,to)公正的，无偏见的

参考例句：

• He gave an impartial view of the state of affairs in Ireland.他对爱尔兰的事态发表了公正的看法。
• Careers officers offer impartial advice to all pupils.就业指导员向所有学生提供公正无私的建议。

19 adviser   

n.劝告者，顾问

参考例句：

• They employed me as an adviser.他们聘请我当顾问。
• Our department has engaged a foreign teacher as phonetic adviser.我们系已经聘请了一位外籍老师作为语音顾问。

20 rogue   

n.流氓；v.游手好闲

参考例句：

• The little rogue had his grandpa's glasses on.这淘气鬼带上了他祖父的眼镜。
• They defined him as a rogue.他们确定他为骗子。

21 impeachment   

n.弹劾；控告；怀疑

参考例句：

• Impeachment is considered a drastic measure in the United States.在美国，弹劾被视为一种非常激烈的措施。
• The verdict resulting from his impeachment destroyed his political career.他遭弹劾后得到的判决毁了他的政治生涯。

22 impeached   

v.控告（某人）犯罪( impeach的过去式和过去分词 )；弹劾；对（某事物）怀疑；提出异议

参考例句：

• Elected officials can be impeached. 经过选举产生的官员可以被弹劾。 来自《简明英汉词典》
• The judge was impeached for taking a bribe. 这个法官被检举接受贿赂。 来自《现代汉英综合大词典》

23 acquitted   

宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现

参考例句：

• The jury acquitted him of murder. 陪审团裁决他谋杀罪不成立。
• Five months ago she was acquitted on a shoplifting charge. 五个月前她被宣判未犯入店行窃罪。

24 violation   

n.违反(行为)，违背(行为)，侵犯

参考例句：

• He roared that was a violation of the rules.他大声说，那是违反规则的。
• He was fined 200 dollars for violation of traffic regulation.他因违反交通规则被罚款200美元。

25 conundrum   

n.谜语；难题

参考例句：

• Let me give you some history about a conundrum.让我给你们一些关于谜题的历史。
• Scientists had focused on two explanations to solve this conundrum.科学家已锁定两种解释来解开这个难题。

26 desperately   

adv.极度渴望地，绝望地，孤注一掷地

参考例句：

• He was desperately seeking a way to see her again.他正拼命想办法再见她一面。
• He longed desperately to be back at home.他非常渴望回家。

27 partisan   

adj.党派性的；游击队的；n.游击队员；党徒

参考例句：

• In their anger they forget all the partisan quarrels.愤怒之中，他们忘掉一切党派之争。
• The numerous newly created partisan detachments began working slowly towards that region.许多新建的游击队都开始慢慢地向那里移动。

28 hack   

n.劈，砍，出租马车；v.劈，砍，干咳

参考例句：

• He made a hack at the log.他朝圆木上砍了一下。
• Early settlers had to hack out a clearing in the forest where they could grow crops.早期移民不得不在森林里劈出空地种庄稼。

29 mechanism   

n.机械装置；机构，结构

参考例句：

• The bones and muscles are parts of the mechanism of the body.骨骼和肌肉是人体的组成部件。
• The mechanism of the machine is very complicated.这台机器的结构是非常复杂的。