On the steps of the Supreme Court this morning, Rep. Earl Blumenauer (D-OR), Rep. Louise Slaughter (D-NY) and others held a press conference calling on the House Judiciary Committee to hold hearings investigating some of Thomas's alleged ethical lapses. These include allegations that he failed to disclose at least $1.6 million in income earned by his wife Virginia, who worked for the conservative Heritage Foundation and has been an active opponent of the Obama health care law. Thomas has also been accused of taking unreported free trips on a corporate jet and a yacht from real estate magnate Harlan Crow.
Blumenauer wrote to the House Judiciary committee members:"Reports of potential ethical lapses by Justice Thomas's actions give rise to concerns about conflicts of interest undermining appellants' rights of due process and also raise substantive questions about Justice Thomas's ability to retain his seat. We urge that your committee hold hearings regarding the nature of these questions, their factual basis, and their potential to undermine the public's trust in the Supreme Court."
In addition, Rep. Louise Slaughter, in an appearance on Countdown Tuesday night, suggested there's a possibility of forcing a "retroactive recusal," that could potentially also take away Thomas's Citizen's United vote.
SLAUGHTER: [...] But what I'm very interested here, as you know, the votes that he has cast that I think may be in conflict.
And, of course his wife can work. But the fact is there are only nine Justices on that Supreme Court, and it certainly should be a given that a family member of any of those people lucky enough to be a Supreme Court Justice should not in any way involve themselves in matters that will go before that court. Now, we all know she worked very hard for the Citizens United case, which I think is one of the most egregious things that's ever happened in the United States Supreme Court.
SLAUGHTER: There is such a thing as a retroactive recusal. We're looking into that. That case, if you remember, was decided 5-4. If we could take away his vote, we could wipe that out. It would lose.[...]
You know, the judiciary is the last place for all of us to go. We are only as good, all of us, as the courts are—only as safe as the courts are good. Their interpretations are really what give us the freedoms, when you come down to it. They have enormous power. I know the attempt is always made to put the very best persons on that court. And I, as I said—again, I'm trying not to prejudge him—but you can't say in my view that what he did was not willful, by failing to report her income. And I think there is no question about it. It is against the law. So we're hoping that the Judiciary Commission will turn this over to the attorney general.
Common Cause has actually initiated an effort to have the Justice Department investigate whether whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in Citizens United because of their participation in events sponsored by the Koch brothers.
It's impossible that the Republican-controlled House Judiciary committee will launch an investigation and it's also unlikely that a cautious Attorney General like Eric Holder would be willing to take on a Supreme Court Justice. So much of this effort is more intended to get at one thing: shaming Thomas into recusing himself when the Affordable Care Act comes before the Court. That also seems pretty likely, but there's an outside chance that Justice Elena Kagan would also recuse herself, since she was acting as Solicitor General for the administration when the law was passed. Kagan's recusal might just pave the way for Thomas's, though it shouldn't be unilateral.
There's another key point here, though, and that's to shine a light on the fact that Supreme Court justices are essentially untouchable. They are not subject to the same code of conduct that every other member of the federal judiciary must follow. Supreme Court justices, of course, are supposed to be people of such quality, of such integrity, that they would be above reproach and should not be subject to such codes. Rep. Chris Murphy has legislation that would correct that, and end the Court's exemption from judicial ethics laws.