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Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, is raising eyebrows as head of a non-profit group that opposes President Obama’s policies and accepts large, unidentified contributions from donors. Kojo explores the impact politically active spouses have on the Supreme Court.
- Barbara Perry Senior Fellow, Miller Center of Public Affairs,University of Virginia; author, "The Priestly Tribe: the Supreme Court's Image in the American Mind" (Praeger)
- Steven Lubet Williams Memorial Professor of Law, Northwestern University; co-author, "Judicial Conduct and Ethics" (Matthew Bender)
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, it's your turn. You can call us, e-mail us or send us a tweet on any topic on your mind. But first, forget the phone call to Anita Hill, Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, is raising eyebrows because of her role in a non-profit group that opposes President Obama's healthcare and tax policies and takes large sums of money from unidentified donors.
MR. KOJO NNAMDIVirginia Thomas is founder and head of the non-profit Liberty Central whose stated mission is to motivate citizens to preserve liberty. But with her past work for Republicans, her endorsement of conservative commentators like Rush Limbaugh and Mark Levin and her appearances at Tea Party events, pundits are questioning what her high profile role in the nation's political discourse means for the Supreme Court. What constitutes a conflict of interest for a sitting justice? Does a politically active spouse affect the public's perception of the court's impartiality?
MR. KOJO NNAMDIIn this era of two-career power couples, these questions are only likely to increase. And joining us to discuss them is Barbara Perry, senior fellow at the Miller Center of Public Affairs at the University of Virginia and author of the book, "The Priestly Tribe: the Supreme Court's Image in the American Mind." She joins us by telephone from Charlottesville, Va. Barbara Perry, thank you for joining us.
MS. BARBARA PERRYHappy to do so, Kojo.
NNAMDIAlso joining us by telephone is Steven Lubet. He is a Williams Memorial professor of law at Northwestern University and co-author of the book, "Judicial Conduct and Ethics." He joins us by phone from Illinois. Thank you very much for joining us Steven Lubet.
MR. STEVEN LUBETIt's a beautiful day in Chicago.
NNAMDISo I understand. We were just hearing that on the news. Good luck to you. Virginia Thomas has been called the most politically active Supreme Court spouse ever. Having worked for the Republican leadership in the House of Representatives and at the Republican-leaning Heritage Foundation, is Barbara an unprecedented situation?
PERRYI think so. I have to admit that I don't know all of the activities of every Supreme Court justice's spouse, all 112 of them and a couple -- three were not married, but I would say that it is virtually unprecedented. Although I think if you went back to Justice Brandeis' wife, Alice Goldmark Brandeis, she was like her husband, very politically active, certainly before he went on the bench and even after. But I should think that the level of the breadth and the length of Mrs. Thomas' activities in politics probably are unprecedented.
NNAMDIYou can join this conversation by calling us at 800-433-8850 to offer your opinion or ask a question. 800-433-8850 or go to our website, kojoshow.org. Steven Lubet, same question to you. Unprecedented?
LUBETWell, it's unprecedented because everything is magnified these days. So even if there had been a spouse politically active in the early 20th century, fewer people would have known about it. Certainly she's more visible, by order of magnitude, than any previous Supreme Court spouse.
NNAMDIWell, this happens, however, in lower courts, does it not? There are other judges in courts of appeal and circuit courts who have spouses who are politically active. What's the difference?
LUBETWell, it's quite common, relatively common on the lower courts. There was a district court -- federal district court judge in Chicago a number of years ago who was married to a congresswoman. And of course, Judge Mark Randall of the Third Circuit Court of Appeals is married to the governor of Pennsylvania. And on the Republican side, Judge Alice Batchelder on the Sixth Circuit Court of Appeals is married to the former majority leader of the Republicans in Ohio. So that's not unusual especially in contemporary times.
LUBETBut the Supreme Court is different in every possible way. It's much more visible. Their rulings, of course, are un-appealable and final and they affect everybody in the country. And recusal or disqualification of one justice has many more ramifications than it does when a lower court judge steps aside.
NNAMDIIn addition to which, Barbara Perry, it means that regardless of the outcome, there is no appeal to any higher court.
PERRYBy definition, the highest court in the land. The decisions cannot be appealed any higher.
NNAMDISteven, as head of the non-profit group Liberty Central Virginia, Thomas draws a salary that's set by the organization's board. The funds come from donors who are allowed, by law, to remain anonymous. You've written a law school textbook on judicial ethics. Talk about the ethics of this situation?
LUBETWell, judicial ethics, of course, apply to judges and not to their spouses.
LUBETSo there is no limitation -- or no greater limitation on Virginia Thomas than there would be on any other person in the United States when it comes to political or charitable or any other sort of activities. But in some circumstances, a judge is disqualified or the judge has to step aside based on the activities of the judge's husband or wife. And that's, of course, the controversy here. It's my opinion that nothing we've seen so far would require Justice Thomas to step aside in any particular case. But you know the world is a complex place and we've only just begun to learn about what Mrs. Thomas is doing. So who knows what will happen in the future.
NNAMDIBarbara Perry, how important is it that according to a column in The New York Times by columnist Maureen Dowd, quoting here "There is no way to tell if her donors have cases before the Supreme Court or whether her husband knows their identities."
PERRYI guess that's a truism in the sense that if indeed these companies or these interest groups or these individuals who are donating money to Mrs. Thomas' interest group, Liberty Central, if they are anonymous, they're anonymous. Now, presumably, she knows who they are and perhaps she has shared that with her husband. And as I understand it, when she -- when Mrs. Thomas founded this interest group, she did go to the court's legal office and discuss this matter.
PERRYAccording to the court spokesperson, however, those kinds of discussions are not made public. So we in the public do not know how far that discussion went or what Mrs. Thomas has shared with Justice Thomas.
NNAMDIAnd we in the media...
LUBETThis is the problem. Because on the one hand, one would worry that donors are attempting to get on Justice Thomas' good side by supporting his wife's activities. I mean, you can't discount the possibility that somebody would feel that way. You know, on the other hand, if spouses are going to be free to engage in political or commercial activities, then tracking down the sources of their income has to end at some point.
NNAMDIWe're discussing the political activities of judicial spouses and some of the ethical implications for the justices themselves and inviting your calls at 800-433-8850. What do you think about it? We're focusing on the wife of Justice Clarence Thomas, Virginia Thomas, and the organization that she has founded. 800-433-8850 or you can send us an e-mail to firstname.lastname@example.org. Steven, explain the process of recusing oneself from a case before the court. When is it required and whose decision is it?
LUBETYeah, that's an excellent question. There's a federal statute that governs this and in this situation, the relevant subsection says that a judge of any federal court or a justice of the Supreme Court is recused or has to be disqualified if there's a reasonable question about their impartiality, which is a pretty broad standard. The question has to be reasonable and it has to touch upon the judge's ability to remain impartial in the case.
LUBETNow, the biggest problem here is that the justices of the U.S. Supreme Court have decided that each one of them will make recusal decisions individually without review by the other members of the court and, of course, without any possibility for an appeal. So you have these individual justices making sort of the meta decision. Can I be impartial about my own impartiality? And then, there's no appeal. It's a terrible system. It's probably the worst aspect of this whole situation.
NNAMDICare to comment on that, Barbara Perry?
PERRYYes. Just in terms of an example, people might remember Scalia's refusal to recusal, I guess I would call it. His refusal to recuse himself in the case involving Vice President Cheney that had come before the court when it was public knowledge that Justice Scalia had gone duck hunting with the vice president. So that was an example of lots of public knowledge about the connection, at least the personal and hunting connection between the justice and the vice president, but the justice in this case, Scalia, refusing to recuse.
NNAMDIBarbara, you've written about the public's perception of the Supreme Court. How does Virginia Thomas' political profile affect the way Americans view the court's impartiality?
PERRYWell, I think this is another extremely important element of this matter and it goes beyond the technical issues of whether there's any line that's been crossed legally. And certainly Steven has made the case that there are no laws that apply to the spouses of federal judges, though given what they do, it could have possibly an impact on the impartiality of the judge.
PERRYBut my view would be, as particularly the political scientist, would be to argue that anything that diminishes the image of the court as being a neutral arbiter of decisions -- and even in my own field of political science, people say that's a myth. But I'd like to think that most federal judges and certainly justices of the Supreme Court attempt to try to approach decisions in a neutral way or at least not be swayed by something that his or her spouse is doing. So to me, this issue is more about appearance than anything and that relates directly to the image of the court.
NNAMDIHere is John in Bowie, Md. John, you're on the air. Go ahead, please.
JOHNThank you, Kojo. This case of just -- Citizens United, if Thomas knew of (word?) or not, that should not have been an example where he should have recused himself.
NNAMDIWell, I do not know. Steven Lubet care to comment on that? Because Citizens...
LUBETWell, the Citizens United case, a very troubling outcome, in my opinion. It sort of unleashed unlimited amounts of corporate funding into the electoral process, but it actually didn't have any impact on Liberty Central at all.
NNAMDIBecause that's a non-profit?
LUBETRight, it's a non-profit. They would call it grass-roots organizing. It's not a pack. It's not a political party. And the outcome in Citizens United didn't have any effect on their anonymous fundraising.
NNAMDIThat's what I thought. Here is Helen in Bethesda, Md. Helen, you're on the air. Go ahead, please.
HELENThank you. Well, I absolutely disagree that Mrs. Thomas should be so upfront. It seems to me that she is upstaging her husband. What is she trying to do? I almost feel like saying, get her back into the kitchen. I mean, I just totally disagree with her doings. Thank you.
NNAMDIWell, you know, Barbara Perry, it's seems that in an era of two-career couples, this is just the beginning of what will likely be a long debate over potential conflict of interest in the courts.
PERRYI think so. And I think that Professor Lubet had made that very point in his New York Times quotation of the last few weeks that this is something that we will see increasingly and not just in the judiciary, we should say. And there can be political conflicts of interest or public policy conflicts of interest with congressional spouses. And we've already seen some of these kinds of issues rise up in the White House, even going as far back as Eleanor Roosevelt. Just a dis-ease, or an unease among the American public with the large roll that that first lady, Eleanor Roosevelt, took.
PERRYAnd certainly we can remember Hillary Rodham Clinton stirring up controversy as well. And it's a slightly different element because it doesn't involved judicial ethics or the law. But it's a dis-ease, I think, that the American people have with the spouses of office holders who've either been elected or selected, in the case of federal judges, going beyond -- the spouse is going beyond what the American public thinks they should be doing.
LUBETI see my law students marry each other with great frequency. And it's just a tossup which one of them is going be on the supreme court some day. But whichever one it is, they're going to have equally well-educated and sometimes politically active spouses. That's not going to stop and we're all better off for it.
NNAMDISo this is just the beginning of that discussion. Steven Lubet, I know you have to go. Thank you very much for joining us.
LUBETBeen good to be with you.
NNAMDISteven Lubet is a professor of law at Northwestern University and co-author of the book, "Judicial Conduct and Ethics." Barbara Perry, we got this post on our Facebook page. "If we could reasonably be expected not to know the political leanings of the justices, I wouldn't be as dismayed by the activities of someone like Virginia Thomas. However, the justices have been extremely political in the last 20 years or so and some presidents have been making a deliberate effort to nominate more and more ideological judges. We can watch by the way they rule that this is true.
NNAMDIFor example, the Citizen's United case that said corporate donations to independent political ads and elections can't be limited by the first amendment. So, yes, the activities of spouses should be on the table when evaluating the judicial nominee." Thinks that -- think that's something we'll be looking at in the future, Barbara Perry?
PERRYI think we probably will. I think that perhaps Mrs. Thomas hasn't realized the impact that this is having on the future of appointments to the bench, as well as how Americans view that bench itself. And I'd like to point out that the U.S. Supreme Court almost always is far ahead of the president and the Congress in terms of public satisfaction with that branch and public faith and confidence. And some might say, well you wouldn’t have to go very far to be ahead in Congress these days.
PERRYBut my point is that the court has had a superb public image for many, many years and that I should think that spouses of justices would want to be very careful about acting in such a way that they would reduce that image or hurt that image.
NNAMDIIf you have calls, stay on the line because even though we're coming to the end of this segment, we're going into Your Turn next and you are free to bring up this issue. So, Gloria Daniels, stay on the line. You can still call us at 800-433-8850 or send e-mail to email@example.com or a tweet at kojoshow. Barbara Perry, thank you for joining us.
PERRYI'm happy to be with you.
NNAMDIBarbara Perry is senior fellow at the Miller Center of Public Affairs at the University of Virginia and author of the book, "The Priestly Tribe: The Supreme Court's Image in the American Mind." We're going to take a short break. When we come back, your turn. You can start calling right now, 800-433-8850, with any topic on your mind, recent issues in the news, recent broadcasts that we have aired or anything else. You can also go to our website kojoshow.org, join the conversation there. I'm Kojo Nnamdi.
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