D21, Eisen, Common Cause: Supreme Court Must Adopt Code Of Conduct And Strengthen Recusal Procedures
Facing a crisis from the loss of public confidence, the Supreme Court must adopt a Code of Conduct and strengthen its internal procedures for applying conflict-of-interest standards for a Justice to recuse from cases pending before the Court, three government watchdogs wrote in letters sent today to Chief Justice John Roberts, and to Senate Judiciary Chair Dick Durbin (D-IL) and Ranking Member Chuck Grassley (R-IA).
The letters were signed by Democracy 21 President Fred Wertheimer, former Ambassador Norman Eisen, and Common Cause President Karen Hobert Flynn.
Wertheimer, Eisen, and Hobert Flynn urged Chief Justice Roberts to address the “grave problem” of the loss of public confidence facing the Supreme Court by adopting a Code of Ethics for the Court and strengthening recusal standards used by Justices.
In a separate letter to Senators Durbin and Grassley, the three government watchdogs urged the Senate Judiciary Committee to report, and Congress to enact, legislation requiring the Supreme Court to adopt and abide by an appropriate code of conduct.
“Repeatedly over the past year, Justices of the Court, including Justice Clarence Thomas, have felt compelled to reassure Americans that the work of the Court is non-political, and that Justices are not ‘a bunch of partisan hacks,’” Wertheimer, Eisen, and Hobert Flynn wrote.
“Unfortunately, however, Justice Thomas himself has done serious damage to the Court and to its credibility by his refusal to separate his official duties from the active participation of his spouse, Ginni Thomas, in former President Donald Trump’s baseless attempt to overturn the 2020 presidential election. This damage will grow even worse if Justice Thomas continues to participate in cases that may come before the Court relating to Trump’s attempted presidential coup and to the January 6, 2021 attack on the Capitol,” according to the letters.
Justice Thomas cast the sole vote to block the House Jan. 6 Committee’s access to certain presidential records concerning the effort to overturn the 2020 presidential election in the case of Trump v. Thompson (2022).
Wertheimer, Eisen, and Hobert Flynn detail the many text messages and other documents that have been made public, including evidence gathered by the House Jan. 6 Committee, that reveal that Ginni Thomas was deeply involved in efforts to overturn the results of the 2020 presidential election.
“It belies reality to think that Justice Thomas was entirely unaware of his wife’s active involvement in efforts to overturn the 2020 presidential election,” Wertheimer, Eisen, and Hobert Flynn wrote. Thomas knew, they wrote, that the documents at issue in the case related to the investigation of the attempted presidential coup – and therefore potentially to Ginni Thomas’s activities.
“Under these circumstances, Justice Thomas had a serious conflict of interest and, even more so, the appearance of a conflict, and he should have recused himself from the case,” they wrote.
The letters discuss the Code of Judicial Conduct that governs the behavior of federal judges, but does not apply to Supreme Court Justices. The Code includes rules requiring judges to disqualify themselves in proceedings “in which the judge’s impartiality might reasonably be questioned,” including instances in which the judge’s spouse has an “interest that could be substantially affected by the outcome of the proceeding.”
While the Code does not apply to the Supreme Court, Justices are subject to the recusal requirements in U.S. law, specifically Section 455 of Title 28.
Chief Justice Roberts has noted in past writings that Justices “follow the same general principles respecting recusal as other federal judges” and that Section 455 imposes “a general principle, that a judge shall recuse in any case in which the judge’s impartiality might reasonably be questioned.”
It is clear, Wertheimer, Eisen, and Hobert Flynn wrote, that Justice Thomas improperly failed to recuse himself in Trump v. Thompson.
“At a time when the Supreme Court has disapproval ratings similar to the two political branches of our government, Justice Thomas’s participation in a case dealing with an attempted presidential coup in which his wife is a highly controversial political actor only reinforces the public’s perception that the Court is a political, not a judicial, institution – the very result that Justice Thomas and other Justices claim that they seek to dispel,” they wrote.
Safeguards to provide public disclosure of a Justice’s recusal-related considerations, and consultation with other Justices as a check on potential abuse of discretion, are necessary to ensure that the recusal standards are correctly applied by the Justices, according to the letters.
“The Supreme Court should adopt internal procedures to mange recusal issues more rigorously than the current system of leaving the matter to the unfettered and unchecked discretion of each individual Justice,” Wertheimer, Eisen, and Hobert Flynn wrote. The Court’s failure to address this problem, they noted, is bound to lead to other instances that will have the effect of undermining the public credibility of the Court.
Read the letter to Chief Justice Roberts here and the letter to Senators Durbin and Grassley here.
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