The latest report on Clarence Thomas‘ questionable ethics does many things. For one, it reminds us that we have a series of such reports about a Supreme Court justice, who continues to sit on the court undisturbed. That’s something we’re living through.
More specifically, another one of the things ProPublica’s latest Thomas report highlights is the GOP’s hypocrisy when it comes to judicial recusal.
The Friday report, which has not been independently verified by MSNBC or NBC News, explored the Republican appointee’s connections to the Koch network that’s pushing this coming term to overturn a precedent called Chevron, which has long been targeted by conservatives in their war against government regulations. (Thomas has not publicly commented on the report.)
After observing that Thomas’ undisclosed ties to the Koch network “could call his impartiality in the case into doubt,” ProPublica recounted an episode from decades ago, in which Republicans, including then-Rep. Mike Pence, called on Justice Ruth Bader Ginsburg to recuse from abortion-related cases, after she spoke at a lecture cosponsored by a women’s rights group that filed Supreme Court briefs.
But we shouldn’t hold our breath for Pence & co. to call for Thomas’ recusal.
Indeed, we can expect Thomas to take a similar path as fellow conservative Justice (and fellow ProPublica ethics reporting subject) Samuel Alito, who recently and unconvincingly declined to recuse from a case that’ll also be heard this coming term. The case was brought by a lawyer who conducted fawning interviews of Alito for The Wall Street Journal opinion section. That case, too, involving taxes, is a big one for the conservative legal movement.
To be sure, it would be somewhat surprising, yet welcome, if, like Alito, Thomas were to even try and explain his likely decision to not recuse here. I should also point out that Justice Ketanji Brown Jackson recused herself from this Chevron case, called Loper Bright Enterprises v. Raimondo, presumably due to her participation in the case while she was on the U.S. Court of Appeals for the District of Columbia Circuit, where she sat prior to her high court appointment by Joe Biden. Meanwhile, Donald Trump, who as president appointed half the GOP supermajority on the Supreme Court that could deliver conservative wins in these appeals — they wouldn’t even need Thomas’ vote to make a majority — is currently pushing to recuse U.S. District Judge Tanya Chutkan from his federal election interference prosecution in Washington. Though the law isn’t on Trump’s side in that recusal effort — for which we’re awaiting Chutkan’s decision — one imagines the Barack Obama appointee might be giving it more thorough consideration than Thomas will for any Koch-linked cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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