Republicans are really stretching to find reasons to oppose President Joe Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson. That’s in part because she has received the wholehearted endorsement of a whole bunch of extremely conservative Republican lawyers and judges. Like this guy, Bill Burck, a former George W. Bush lawyer who shepherded Brett Kavanaugh’s nomination. “[N]o serious person can question her qualifications to the Court and to my mind her judicial philosophy is well within the mainstream,” he told CNN.
They can’t attack her on the basis of qualifications (nice try, Tucker Carlson) or her judicial philosophy or her demeanor. So of course they’re going to go after her skin color, in a not-even-subtle way. All those great qualifications she has? That’s the problem—she’s Black and a product of Harvard Law and sits on that university’s Board of Overseers, so of course she can’t possibly rule on the upcoming challenge to that university’s affirmative action program.
“If she’s not going to recuse, she needs to tell us what her role has been” at Harvard, demands Sen. John Cornyn (R-TX). “I expect that she’ll studiously avoid answering any questions. It seems to be the practice.”
Jackson’s term on the board is ending this spring. She hasn’t yet answered that insult to her professional and legal integrity from Republicans. White House spokesperson Andrew Bates said that she “would follow the highest ethical standards when it comes to recusals.” Because that’s all she’s ever done. Reviewing the materials she provided to the Senate Judiciary Committee, the Post finds that during nearly a decade as a district court judge, “she was highly attuned to concerns about the appearance of partiality and at times more cautious than the rules required.” Additionally, “ethics experts […] note that Jackson appears to have gone out of her way to disqualify herself from handling several cases when it was not necessary.”
In other words, she has proven scrupulous in her ethics. Besides that, it’s not even a given that she should recuse. “Although some may maintain that her position as a member of the Board of Overseers does not trigger recusal if the board was not involved in decision-making related to the admissions program, a different perspective is that impartiality should be considered in the eye of the beholder and that her impartiality might be reasonably questioned because of her governing board connection,” law professor Susan Fortney told the Post. Fortney directs the Program for the Advancement of Legal Ethics at Texas A&M University’s law school.
Should Jackson’s choose to recuse herself, Fortney continued, that would show “she intends to hold herself to high ethical standards and promote confidence in the administration of justice. This may inspire other justices to examine their own conflicts and impartiality.”
Looking directly at you, Clarence Thomas, you walking conflict of interest.
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In fact, a number of advocacy groups are demanding Thomas do just that in any case related to his wife’s activism. Take Back the Court, Indivisible, People’s Parity Project, and Stand Up America wrote to Thomas Tuesday. “In recent weeks, your conflicts of interest have drawn scrutiny in every major news outlet in America,” the letter reads. “There is a clear crisis of Americans’ faith in the Supreme Court. Failure to recuse yourself from cases in which you may have conflicts of interest will only further erode public support for the Court. Justice may be blind, but the American people can see right through patently unethical behavior.”
“We respectfully ask you to recuse yourself from all Supreme Court cases where a potential conflict of interest exists or appears to exist between the possible outcomes of the case and your wife Virginia ‘Ginni’ Thomas’ political activities,” the groups wrote. “No justice—now or at any time in history—has had a spouse whose role as a key political strategist has raised as many conflicts as you face. The breadth and depth of these conflicts demands an ethical response.”
Take Back the Court notes that Thomas has recused himself from other cases during his three decades on the bench, but “he has never once recused himself from a case because it related to Ginni Thomas’ controversial conservative activism.” There is not rule that justices have to recuse in any instance—they make that decision themselves. And the ethical ones do so when they feel participating would create a conflict.
The demand from the group follows long exposés in The New Yorker and The New York Times examining Ginni Thomas’ long and extensive participation in extremist conservative politics. That includes her work on the board of the Council for National Policy Action, an extremist group that attempted to prevent lawmakers from certifying the 2020 election results.
Not to put too fine a point on it, but Ginni Thomas supported a Trump coup, and Clarence Thomas refused to recuse himself from any of the cases related to the election that came before the court. That includes the one where Trump was trying to shield records from the Jan. 6 committee. Trump was trying to stop the release of White House records that two lower courts and the Biden administration ordered released. The decision was 8-1 against Trump. Clarence Thomas was the sole dissenter.
If we really want to talk about justices recusing, Sen. Cornyn, there’s your judge to talk about.
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