The split is partisan in terms of what the jurist with 32 years of tenure on the nation’s highest court should do
Supreme Court Justice Clarence Thomas is back at the center of a heated controversy, this time over whether he should recuse himself from a pair of cases that have major implications involving one of the federal criminal trials for Donald Trump.
The split is partisan in terms of what the jurist with 32 years of tenure on the nation’s highest court should do.
Democrats insist Thomas consider backing away from the Trump-focused cases due to his past ethical controversies and the work of his wife Ginni Thomas, who reportedly played a role in efforts to urge state lawmakers to overturn the results of the 2020 presidential election in key swing states.
"He has an obvious conflict. I wish he would recuse himself for the good of the court," Senate Judiciary Committee Chairman Dick Durbin told The Messenger on Wednesday.
Asked whether he was confident Thomas would do so, the Majority Whip and Illinois Democrat quipped, "He doesn't call me for advice."
Republicans counter that Thomas is facing undue scrutiny. “The Democrats are just trying to taint all of our institutions,” Sen. Rick Scott, the freshman Florida Republican, told The Messenger on Wednesday. “Clarence Thomas is a class act. He always does the right thing,” he said.
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Talk of Thomas’ recusal got going on Monday shortly before the Supreme Court agreed to consider Special Counsel Jack Smith’s request for a speedy decision on whether to take a case that centers around if a former president has immunity from federal criminal indictment.
“There's been enough information raised about Mr. Thomas and his spouse that he ought to think twice about recusal in this case,” Durbin told CNN.
Since then, the Supreme Court has only added more kindling to the recusal debate by agreeing on Wednesday to hear the case of a man charged with "obstruction of an official proceeding" in connection with actions on Jan. 6, 2021. Their opinion in that case could have potential ramifications for Trump’s criminal trial because the former president is among the hundreds of people facing the same felony criminal count in his indictment.
A conservative appointee of President George H.W. Bush, Thomas earlier this year recused himself from a case involving John Eastman. The top Trump election attorney has faced criminal charges and disbarment proceedings in the wake of the 2020 election.
Thomas isn’t required to give a reason for his recusal in any matter; and he didn’t do so in the Eastman case. Legal experts say it’s likely because Eastman previously served as a law clerk for Thomas, while also noting Thomas hasn’t removed himself from any other high court matters that center around the 2020 election.
“Recusal in this case by Thomas would effectively establish he’ll recuse himself from any case involving a January 6 defendant or these criminal matters,” said Jonathan Turley, a professor at George Washington University School of Law who teaches a course on the Supreme Court. “It’s hard to believe Thomas would adopt such a blanket recusal position given his past reluctance to recuse himself from various cases.”
Another reason: A Thomas recusal would leave the court with just eight justices to decide a major case, and a tie 4-4 vote would let stand Chutkan’s original decision.
“A decision of this kind is so momentous for the country,” Turley said, “that reducing the court to an even number only increases the institutional discomfort.”
The notion of Thomas recusing himself from a Trump criminal case isn’t going over well with Republicans.
Senate Judiciary Committee member Josh Hawley, one of eight Senate Republicans who voted to overturn the 2020 election results after the deadly siege at the U.S. Capitol, scoffed at the idea of Thomas bowing out because of “ridiculous” barbs from Democrats.
“My lefty friends want Justice Thomas to recuse himself on everything. They don’t want him to be on the court,” the Missouri lawmaker told The Messenger on Wednesday, adding, “I’ve got complete confidence in him.”
Fomenting a full-blown war on the Supreme Court’s impartiality might not end the way progressives imagine it will, Hawley warned.
“Is Justice Sotomayor going to recuse herself from any case that has any connection to whomever published her book, whoever may have bought her book, whatever television show she was on to promote her book?” Hawley said of the commercial rabbit holes that might come into play.
“We can start down this road — and it’ll never end,” he predicted.
“But I’ve noticed they have no questions about that. It’s just Justice Thomas,” Hawley said.
Sen. Mike Lee, a longtime Clarence Thomas defender, left any recusal talk to the veteran jurist. “I don't know of any reason why he'd have to, but that's going to be up to him,” the stern-faced Judiciary Committee member and Utah Republican told The Messenger adding, “I’m sure he'll make the right decision — whatever that is.”