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Judge H. Lee Sarokin

Judge H. Lee Sarokin

Posted: October 21, 2010 01:43 PM

Several weeks ago I was watching C-SPAN and heard a very articulate and obviously intelligent woman render a highly partisan speech condemning the current administration and actively soliciting support to defeat it. I was somewhat startled to learn at the end that the speaker was Ginni Thomas, the wife of Justice Clarence Thomas, and that she had formed an organization, Liberty Central, for the specific purpose of defeating the Obama agenda and replacing it with one consistent with her own values. And now along comes the bizarre, mysterious and belated demand for an apology from Anita Hill coincidentally on the eve of the November elections -- either a sincere effort at reconciliation or possibly a reminder to Republicans how low the Democrats will stoop.

So there will be no mistake: I am not advocating some limitation on a woman's right to be independent of her husband and pursue her own goals and ideals. This has nothing to do with women's rights. They have that right as do all spouses. Defenders of Ginni Thomas point to the highly partisan activities of Ed Rendell and others who are married to federal judges. They may be similar but not identical.

We are talking about the Supreme Court, which has no procedure for recusal except the voluntary decision of the justice. There is no mechanism to require a recusal, nor is there any appeal from a denial, as contrasted to the lower courts. Ginni Thomas is doing two things that should give us pause. She is taking a public position in opposition to existing and proposed legislation, much of which is likely to come before the Supreme Court. She is soliciting funds from persons who undoubtedly wish to influence that legislation and the outcome of any litigation that contests it.

When a wife of a Supreme Court Justice requests a contribution for the most noble of charitable causes there is an implied pressure, if the person or company solicited has or may have a matter before the Court in which there is a direct or indirect interest. That pressure or even desire to contribute is multiplied if the contributor has a direct interest in the purpose for which the funds are being solicited -- such as the defeat of the health-care bill which Liberty Central espouses. Justice Thomas may know nothing of his wife's efforts, the source of her contributions or her agenda, but that is unlikely in the view of the average citizen.

Recusal -- the duty to step down in a case -- arises when the judge has an interest in the outcome or has demonstrated some bias for one side or the other. It is also required when there is an appearance of a lack of impartiality. We -- the citizens of this country -- may be wrong and unfair in assuming that, like other husbands and wives, the Thomases talk, share their views, describe their days and express their opinions to one another, but that is real life for most of us. It is this common perception that justifies a finding of an appearance of a lack of impartiality on the part of Justice Thomas. In the absence of greater disclosure as to the source of funds and what has been communicated between them regarding contributions and issues before the Court (the law also prohibits ex parte communications with a judge about a specific matter outside the presence of all interested parties), it is impossible to know what specific cases should require voluntary recusal. Absent such specifics, resignation may be the only alternative in order to maintain the integrity of the Court, if Mrs. Thomas persists, as she has a right to do, in this blatantly partisan pursuit. To my knowledge, no other Supreme Court spouse has ever placed a sitting Justice in this awkward position. Before the accusation can be made, a request for disclosure and accountability is not a "lynching," high-tech or otherwise.