A kerfuffle over Thomas appearances
When, in Charles Dickens’ “Oliver Twist,” Mr. Bumble is told that the law assumes that a wife is under her husband’s “direction,” Mr. Bumble is flabbergasted: “If the law supposes that, the law is an ass — a idiot. If that’s the eye of the law, the law is a bachelor.”
So, about the kerfuffle concerning Supreme Court Justice Clarence Thomas’ wife, Virginia. She is, politically, mad as a hatter. The shelves in her mental pantry groan beneath the weight of Trumpian hysterics about the 2020 presidential election having been stolen and the republic’s certain ruination under Joe Biden. She bombarded Donald Trump’s White House with 21 (that are known) texted exhortations, and received eight replies, about preventing Congress’ Jan. 6, 2021, certification of the electoral vote. To say that she was “strategizing ” with the White House is akin to saying that the guy in the stadium’s upper deck yelling “Roll Tide!” and shouting suggested plays is strategizing with Alabama’s football team.
Be that as it may, let us assume, as feminists and other enlightened thinkers should set an example by doing, that Virginia is not under Clarence’s direction. Should we not also assume that he is not under hers? So, what is the problem? Appearances, apparently.
Critics say he should recuse himself from cases concerning the election, such as the one in which the court, without written opinions, refused, 8 to 1, to block, pending further court proceedings, the release of some Trump documents from the National Archives to the House Jan. 6 committee. It is, to say no more, not news that Thomas is comfortable in lonely dissent. Is there any reason to assume that Virginia’s obsessions rather than his jurisprudential convictions determined his dissent?
But, say his critics, consider the “perceptions” or “appearances.” Fussing about such things is often what people do to justify unjustifiable actions. For example, people eager to restrict political campaign contributions — eager, that is, to limit financing for the dissemination of political speech — say that such restrictions are necessary to prevent corruption or the appearance of it. Quid pro quo transactions — doing favors in exchange for favors — are corrupt. A candidate accepting contributions from people who agree with him or her is politics. If the “appearance” makes morally fastidious people grumpy, that is no reason to proscribe the behavior.
Particularly because the fastidious often are selectively so. Would Thomas’ current critics argue that a justice whose spouse is an environmental activist should recuse in cases involving the Environmental Protection Agency? Unlikely. This, however, is likely: A Venn diagram of people who think Thomas’ recusal is required to protect the court’s reputation for impartiality, and of people who denounce the court as a conservative, illegitimate minilegislature, would show a substantial overlap.
During her Senate confirmation hearings, Supreme Court nominee Ketanji Brown Jackson, who in a reasonable era would be confirmed 100-0, said she would recuse herself in the case concerning the allegedly race-based (anti-Asian American) admissions policies at Harvard, where she serves on one of the university’s two governing boards. But her recusal suggests that her presumed support, as a member of the Board of Overseers, for Harvard’s policies would preclude her from objectively assessing them in the context of evidence and arguments presented to the court. This insults her.
Or her recusal suggests that non-recusal would present an “appearance” of partiality. Such a consideration should not curtail the participation on the court of a justice whose confirmation presumes her impartiality.
Those who furiously opposed Thomas’ 1991 confirmation inflicted a Senate browbeating even worse than Robert H. Bork experienced in 1987 — the beginning of confirmation circuses. Thomas’ tormentors perhaps convinced him that living long would be the best revenge. He is the longest-serving member of today’s court. At 73, he appears to live by an axiom illustrated in the 1962 movie “Lawrence of Arabia.”
Lawrence, played by Peter O’Toole, strikes a match to light a cigarette for a fellow soldier, William Potter. Then slowly, without flinching, Lawrence pinches out the match’s flame. The soldier tries this and exclaims, “Ow! It damn well hurts!”
Lawrence: “Certainly it hurts.”
Potter: “Well what’s the trick then?”
Lawrence: “The trick, William Potter, is not minding that it hurts.”
Thomas does not mind criticism — for the unbending originalism of his jurisprudence, for his minimal reverence for precedents he considers mistaken, for the company his wife keeps, or for many other things. People who consider his starchy independence a problem have a problem.