Members of the judiciary have an ethical obligation to remain impartial. When it comes to the U.S. Supreme Court, such impartiality is crucial given the impact that the Court’s rulings have nationwide. For that reason the high court historically has remained nonpartisan and distanced itself from the political arena.
Thus, the recent involvement of Virginia “Ginni” Thomas, whose husband is Justice Clarence Thomas, in the Tea Party movement is raising eyebrows. “I adore all the new citizen patriots who are rising up across this country,” Virginia said while speaking on a panel at the Conservative Political Action Committee. “I have felt called to the frontlines with you, with my fellow citizens, to preserve what made America great.”
Ordinarily, participation in political advocacy by family members of the judiciary is not a matter for concern. What has tested the norms is that in November 2009, Virginia, an outspoken critic of President Obama, created a 501(c)(4) nonprofit organization called Liberty Central, Inc.
The organization’s website, LibertyCentral.org, coordinates activism around a set of conservative “core principles.” Benefitting from the recent Supreme Court decision in Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), Liberty Central solicits money from various sources such as corporations, which then can be used to advocate for or against political candidates. Justice Thomas was part of the 5-4 majority in Citizens United.
This is not Virginia Thomas’ first foray into politics. She previously worked for former Republican Rep. Dick Armey and the Heritage Foundation, a conservative think tank with strong ties to the GOP. As the Supreme Court was hearing Bush v. Gore, the case that decided the 2000 presidential election, Virginia was at the Heritage Foundation recruiting staff for George W. Bush’s administration.
Since his appointment to the Supreme Court in 1991, Justice Thomas, 61, has been a reliable conservative. “We expect the justice to make decisions uninfluenced by the political or legal preferences of his or her spouse,” said New York University law professor Stephen Gillers. However, “[t]here is an opportunity for mischief if a company with a case before the court, or which it wants the court to accept, makes a substantial contribution to Liberty Central in the interim,” he noted.
Whether a Supreme Court justice recuses him or herself from hearing a case due to a potential conflict of interest is solely up to that individual justice. Thus, former Chief Justice William Rehnquist declined to recuse himself from an antitrust case against Microsoft even though his son, an attorney, was working on a separate antitrust case involving Microsoft. However, Rehnquist did recuse himself from cases argued by attorney James Brosnahan, who had testified against him at his confirmation hearing.
It remains to be seen whether Justice Thomas will hear cases involving companies that make donations to his wife’s political advocacy organization. “Liberty Central has been run past the Supreme Court ethics office and they found that the organization meets all ethics standards,” said Sarah Field, the organization’s policy director and general counsel. In 2009, Liberty Central received two donations totaling $550,000. The donors were not identified.
Sources: Los Angeles Times, www.politico.com
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