NRPLUS MEMBER ARTICLE T he Washington Post has published yet another story focusing on the professional work of conservative activist Ginni Thomas, raising baseless ethics concerns regarding potential conflicts of interest with her husband, Supreme Court justice Clarence Thomas. Of course, on cue, Senator Sheldon Whitehouse (D., R.I.) also attacked the two. This smear is just another attempt to use Ginni Thomas’s work to attack her husband and the Supreme Court. It is, in addition, a testament to the sheer hypocrisy of Democrats, who hold Supreme Court justices to ethics standards to which they themselves are not subject.
Let’s start with the facts. Ginni Thomas worked with a new association, Crowdsourcers, which brought together conservative leaders to discuss new strategies for restoring conservative values in our culture. Capital Research Center (CRC) is a nonprofit think tank, and one of the many organizations represented in Crowdsourcers. CRC served as the fiscal sponsor of Crowdsourcers as it was being stood up, a very common and permissible practice, as the Post even admits citing an expert Senator Whitehouse invited to testify at a hearing on nonprofit finances.
Before CRC had any formal relationship with Crowdsourcers, CRC signed on to an amicus brief filed by the Pacific Legal Foundation at the Supreme Court — along with nearly a dozen other organizations, including the Cato Institute, the Competitive Enterprise Institute, the Committee For a Constructive Tomorrow, the 60 Plus Foundation, and others. The brief was about an environmental matter completely unrelated to any work Crowdsourcers was doing.
Ginni Thomas had no knowledge of or involvement with this brief. Ginni Thomas’s work with Crowdsourcers was unrelated to the provision of legal advice. In fact, she has never been involved with providing legal advice, nor has she advised clients on legal matters. She has never been a practicing attorney. Her work is exclusively focused on politics and public policy. Moreover, Ginni Thomas has complied with all filing and disclosure laws.
But the Washington Post tried to make something of this unrelated filing of an amicus brief by CRC, which was not even a party to the case. Moreover, the amicus brief was filed on February 13, 2019, the Supreme Court declined to hear the case on May 13, 2019, and the CRC–Crowdsourcers fiscal-sponsorship agreement was signed on June 25, 2019 — after the Court had declined to hear the case. But none of that stopped the Post from suggesting that Justice Thomas needed to recuse from cases because of his wife’s professional activities.
There is no law or historical precedent that would support such a recusal. Consider Justice Ruth Bader Ginsburg’s recusal practices. Justice Ginsburg’s husband practiced at a law firm that made several appearances before the Supreme Court. She never once recused from a case because her husband’s firm was involved. In fact, she voted on at least one occasion in favor of the firm’s client. I am not aware of any Democrat or legal commentator who argued that she should have recused from any of these cases.
The Post story supplied additional evidence of the double standard to which the Thomases are held. In 2013, Stephen Gillers, a legal-ethics scholar quoted in the piece as critical of Mrs. Thomas, joined an amicus brief (with other legal-ethics experts) defending left-wing federal appeals judge Stephen Reinhardt’s decision not to recuse from a case involving a state constitutional ban on same-sex marriages. This was despite the fact that his wife had spoken out on the issue, and that the chapter of the ACLU she led had joined two amicus briefs in the court below. As Gillers and the other experts noted: “Judge Reinhardt is not presumed to be the reservoir and carrier of his wife’s beliefs. . . . A contrary outcome would deem a judge’s spouse unable to hold most any position of advocacy, creating what amounts to a marriage penalty.”
But of course, the Washington Post wanted a different standard for the Thomases. One heard little, if anything, critical of Justice Ginsburg’s recusal practices, or about the fact that she never disclosed her husband’s clients. But now, the Post and many Democrats are suddenly obsessed with Justice Thomas’s recusal practices and his wife’s clients, and they seek to hold him to a uniquely higher standard than any other justice in history.
It’s especially rich to see Senator Whitehouse call for Supreme Court ethics reform. Of the three branches, it is only members of Congress — representatives, senators, and their staff — who are not subject to any conflict-of-interest laws regarding their official duties. Contrary to the narrative advanced by Democrats right now, federal judges — including Supreme Court justices — are bound by 28 U.S.C. § 455, a federal law that sets out when a judge or justice must recuse from a case. In general terms, a judge must recuse when the judge, their spouse, or a close family member has a financial interest in the outcome of the case. The statute also calls for recusal if a judge’s spouse or family member is a party or lawyer in the proceeding, or if the judge served as a lawyer in the matter while working in private practice.
Executive-branch officials are bound by a criminal statute, 18 U.S.C. § 208, which prohibits officials from working on matters in which the official, their spouse, or a family member has a financial interest.
By contrast, members of Congress and their staff are not bound by any comparable federal conflict-of-interest law. Indeed, the House Ethics Manual (pp. 234–39) and the Senate Ethics Manual (pp. 69–70) both state that representatives and senators may vote on legislation that directly and significantly affects their own financial interest, so long as the legislation affects a larger class of people. Both manuals provide examples of a representative or senator owning (or owning stock in) a company and voting on legislation that directly affects that company’s interests.
Members of Congress are also not required to disclose any information about their spouses’ clients or specific income level. Representative Hank Johnson (D., Ga.) and Senator Chris Murphy (D., Conn.) are the two lead sponsors of a new bill that would require more disclosure from Supreme Court justices. Both are married to lawyers who work at firms and represent clients. And neither disclose their spouses’ income or the clients they represent on their financial-disclosure forms.
Thus, unlike the other branches, there is no law prohibiting members of Congress from voting or working on matters that directly affect their personal financial interests, and no requirement to disclose those potential conflicts of interests. And Congress is not subject to the Freedom of Information Act, which requires disclosure of executive-branch records. Nor is Congress subject to any meaningful recordkeeping requirements. In fact, all records generated by a member or senator and their staff are considered their personal property.
Members of Congress have many more opportunities than judges to vote and proactively work on matters that benefit their personal financial interests and those of their spouses’ clients.
Democrats and their left-wing media allies continue to attack conservative Supreme Court justices and their working spouses, such as the spouses of Chief Justice Roberts and Justice Barrett, with baseless conflict-of-interest allegations because the Court no longer acts as a super-legislature for progressive causes.
Last year, left-wing groups sent a letter to Congress proposing legislation that would require the spouses of judges and justices to disclose the names of their clients and how much they are paid by each client. Then–House Judiciary Subcommittee chairman Hank Johnson welcomed this legislation, stating that it would “shine a light on just who or what may be influencing the justices’ decision in major cases.”
Before Democrats in Congress demand new laws to require Supreme Court justices to make additional disclosures relating to conflicts of interests, they should be required to enact legislation that applies federal conflict-of-interest laws to themselves and their staff and requires the disclosure of their and their staff’s spouses’ clients and of income they receive from each client.
In fact, given their concerns, Senator Murphy and Representative Johnson and any other member advocating Supreme Court ethics reform should immediately and publicly disclose their own spouses’ clients and income they received from these clients. Anything less reeks of hypocrisy.