Senate Republican Leader Mitch McConnell grabbed headlines last week in his usual attention-getting manner – by being against something. In this case the something was a someone, U.S. Court of Appeals Judge Ketanji Brown Jackson, President Biden’s nominee for the Supreme Court.
“I went into the Senate’s consideration of Judge Jackson’s nomination with an open mind,” McConnell, a Louisville Republican, hogwashed. “But after studying the nominee’s record and watching her performance this week, I cannot and will not support Judge Jackson for a lifetime appointment to our highest Court.”
Jackson is eminently capable, honest to a fault, and experienced in the ways of the justice system. But McConnell couldn’t see his way clear to support a nominee who, if confirmed by the Senate, will become the first African-American woman to serve on the high court.
But McConnell had no problem this week speaking up in defense of someone already on the Supreme Court, one whose background shrinks into the shadows when compared to Jackson’s extensive resume and who now may find himself embroiled in a huge conflict of interest.
Justice Clarence Thomas cast the lone dissent in an 8-1 high court decision rejecting former President Donald J. Trump’s effort to block the release of some of his presidential records to the House investigative committee looking into the Jan. 6 insurrection attempt that Trump egged on, leaving the Capitol in shambles.
Thomas failed to explain his reasoning, if that’s what it was, in siding with Trump. Now it appears that Thomas’s wife, Ginni, a far-far-right activist, attended the so-called “Stop the Steal” rally organized to block Congress from ratifying the election of President Biden, who defeated Trump by about 7 million votes in November 2020.
That rally subsequently devolved into the insurrection attempt. Ginni Thomas, according to reports in The New Yorker and The New York Times had a hand in putting that whole shebang together.
Further, Ginni Thomas was in regular communication with Mark Meadows, Trump’s chief of staff, and others, impressing on them to fight the good fight, if you will, to deny Biden the presidency and, hopefully, reinstall The Donald.
“Sounds like Sidney (Powell, Trump’s erstwhile lawyer) “and her team are getting inundated with evidence of fraud,’’ she wrote Meadows shortly after the election. “Make a plan. Release the Kraken and save us from the left taking America down.”
It certainly wouldn’t be too much to ask, since his wife has dipped her toe into this rancid pool, to ask Thomas to recuse himself from deliberations dealing with the Jan. 6 insurrection. He apparently cannot be forced to do so but honor, and the American public’s faith in the integrity of the court’s deliberations, would certainly require it. Several lawmakers have sought his recusal while a handful of others, including Rep. Alexandria Ocasio-Cortez, D-NY, have called for his resignation.
House Speaker Nancy Pelosi, D-NY, after asserting “I don’t think he ever should’ve been appointed,” added, “Well, if your wife is an admitted and proud contributor to a coup of our country, maybe you should weigh that in your ethical standards.”
Thomas, recently released from a hospital stay as a result of an infection, hasn’t announced any intention to either steer clear or stay the course. Other cases involving the insurrection are certainly headed the court’s way, creating something of a sticky wicket for the justice. But it appears our boy Mitch, who has consistently used the U.S. Supreme Court for his own, personal playground, is urging the justice to hold tight and disregard any “clumsy bullying” from the “political branches,” presuming he refers to elected official on Capitol Hill.
“Judicial independence is essential to our Republic and integral to the rule of law,’’ McConnell said on Twitter. “The far left’s latest attack, a clumsy and baseless attempt to nullify Justice Thomas’s presence on the Court, is beyond the pale.”
It’s odd that McConnell would wend his way into the middle of this debate. You can usually find him on the sidelines keeping his own counsel, taking the safe political route. It could be he finds the case against Thomas so problematic he wants any discussion about impeachment shut off at the pass. The court’s conservative wing currently maintains a 6-3 advantage – that will continue if or when Jackson is sworn in – but the loss of Thomas’s reliably right-wing vote could render things uncomfortably tight.
The rationale McConnell provides for Thomas’s support is, well, inane. This isn’t an attack on judicial independence. The nine justices are not immune from public criticism, nor should they be. Facing calls for recusal or even resignation constitute standard fare for anyone in public office. And with a lifetime appointment short of impeachment, which doesn’t currently appear to be in the cards despite McConnell’s concerns, it’s incomprehensible to maintain that Thomas is the victim of “clumsy bullying.”
It’s more than likely that the conduct of Justice Thomas, should he seek cover in the bomb shelter and repel recusal entreaties, is what’s really beyond the pale. Justice Elena Kagan, for instance, has at times recused herself from cases that involved work she performed as solicitor general under President Barack Obama. The issue itself arises as many as 200 times during the court’s term.
It appears Thomas is fortunate that he serves as a justice on the Supreme Court as opposed to a lower bench. The U.S. Code requires that, “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The statute spells out instances that require recusal, including times when it is known by the judge that he/she and/or the spouse “have an interest that could be substantially affected by the outcome of the proceeding.”
But there is little possibility of enforcement as it regards a Supreme Court justice. Lower court federal judges can face a challenge from a participant in a case and have the ultimate decision on recusal come from a higher authority. Such accountability doesn’t exist in the Supreme Court.
Laurence Tribe, a professor emeritus at Harvard Law School, appearing on MSNBC, noted that the statute “specifically says no justice shall participate in a matter where he has reason to know that his spouse or her spouse has an interest in. The interest here was very direct.”
What Thomas did by involving himself in the 8-1 ruling, Tribe said, “was illegal.” And if he continues his involvement with Jan. 6 cases “he’s going to be violating the law again.”
This is not the first time Thomas has been caught up in high court controversy regarding his wife. During the first 21 years of his service on the court, Thomas failed to disclose Ginni Thomas’s income and employers as required by federal law. Thomas was forced to file papers acknowledging that his wife was then employed by a right-wing and pro-business lobbying group, thus forcing him to go back and alter several year’s worth of financial disclosure forms.
Mitch McConnell can’t bring himself to support a historic and unquestionably qualified candidate for the Supreme Court but he has no problem rushing to the aid of a justice mired in controversy before who may have a terrible conflict of interest.
Yeah, that’s Mitch all right.
Mitch is denigrated on a daily basis by commentators all over the U.S., just like other politicians. I’m sure you’ve heard the stuff that Fox News and talk radio says about the President.
Anyway, when somebody criticizes him, Mitch just raises another five or ten million dollars, so he’s not complaining.