General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsJustice Thomas, legal question for you:
In any jurisdiction you care to name, state or federal, those who wear the robe in a courtroom are ethically required to not only avoid actual conflicts of interest, but also the "appearance of a conflict of interest". The purpose of this is to assure the parties before the court that the judge has no interest in the outcome of the trial---financial, political or otherwise--- and will be impartial in deciding their case.
Your wife, Ginny, has openly criticized the House of Representatives January 6th Committee as engaging in "partisan persecution". In fact, she recently signed a letter to House Minority Leader McCarthy which contained that and other partisan attacks on the Committee and its members.
The Supreme Court currently has a case before it which will require the Court to rule on the validity and authority of the January 6th Committee. CLEARLY, at the very least, you APPEAR to have a conflict of interest which would mandate that any other judge RECUSE himself from taking part in this decision.
My question is simple: will you do what everyone knows you should do or do you just not care about whether you---and the Court---are viewed as impartial?
PJMcK
(22,037 posts)Thomas has no ethics. Don't expect hm to recuse himself.
Actually, Roberts should confront Thomas. It's Roberts' court, so to speak.
Atticus
(15,124 posts)JustABozoOnThisBus
(23,350 posts)Or the court of Opus Dei.
Mr. Ected
(9,670 posts)Is anyone aware of any incidents in the past that led to a SC Justice having to recuse himself or herself? Is this something the guys in powdered wigs contemplated?
Ms. Toad
(34,074 posts)or the appearance of a conflict.
rsdsharp
(9,182 posts)The judicial rules that apply to the rest of the federal judiciary do not apply to Supreme Court justices.
In Bush v. Gore, Thomass wife was a member of Bushs transition team. He didnt recuse. Scalias son was an associate at the firm representing Bush. He didnt recuse.
In my state, we had an attorney in our firm who was appointed as a district court judge before I was even hired as a clerk. He always recused himself from cases in which our firm was representing a client even twenty years later. But then he took his ethical obligations seriously; maybe too seriously.
Right now, four of the seven Supreme Court Justices are from my former firm. Two of them were there for many years. One was appointed to the bench last year. It should be interesting when the firm has a case before them.
Ms. Toad
(34,074 posts)conflict of interest or an appearance of impropriety.
From a legal perspective, spouses are not treated as if they have one mind. At least not since the 70s or so, when women were unable to obtain credit cards or mortgages without sponsorship of a male (father or spouse).
Grounds for recusal based on spouse's activity
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
Expressing opinions, no matter how loudly, simply do not fit within the guidelines
Atticus
(15,124 posts)Nevilledog
(51,113 posts)If he hasn't come out expressly denouncing what his wife said, he can be understandably thought to share such opinion. The standard is "appearance of inpropriety" not actual inpropriety.
Ms. Toad
(34,074 posts)Not to mention that expressing opinions on matters that might come before him (e.g, by denouncing his wife) is a far bigger ethical problem than having a wife with strong opinions loudly expressed.
Nevilledog
(51,113 posts)The fact that Supreme Court Justices get to decide on their own behalf is a joke.
Ms. Toad
(34,074 posts)Not only for the Supreme Court Justices - but for all other judges, as well as attorneys as to matters of conflict of interest.
Can you point to a disciplinary hearing reprimanding a judge for not recusing him/herself from a case on which a spouse had expresed strong opinions?
Certainly judges can err on the side of caution. The judge I clerked for sent the case in which I was an appellant to be heard in a different district. He was clearly conflicted out, since I was drafting half of the opinions he authored. The case could have been assigned to a panel of judges from which he was exlcuded - but his assessment was that because I worked in the same court as they did it would have the appearance of impropriety. But the rules of professional conduct did not require my case to be sent elsewhere.
So recusals you see in practice are not necessarly those which are required by the rules of professional conduct.
Ms. Toad
(34,074 posts)from the rules of professional responsibility governing judicial conduct?
Nevilledog
(51,113 posts)Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities
(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
(C) Nondiscriminatory Membership. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.
COMMENTARY
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judges honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behavior. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.
Canon 2B. Testimony as a character witness injects the prestige of the judicial office into the proceeding in which the judge testifies and may be perceived as an official testimonial. A judge should discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require. This Canon does not create a privilege against testifying in response to an official summons.
A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others. For example, a judge should not use the judges judicial position or title to gain advantage in litigation involving a friend or a member of the judges family. In contracts for publication of a judges writings, a judge should retain control over the advertising to avoid exploitation of the judges office.
A judge should be sensitive to possible abuse of the prestige of office. A judge should not initiate communications to a sentencing judge or a probation or corrections officer but may provide information to such persons in response to a formal request. Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration and by responding to official inquiries concerning a person being considered for a judgeship.
Canon 2C. Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judges impartiality is impaired. Canon 2C refers to the current practices of the organization. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organizations current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Assn. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership.
Although Canon 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judges membership in an organization that engages in any invidiously discriminatory membership practices prohibited by applicable law violates Canons 2 and 2A and gives the appearance of impropriety. In addition, it would be a violation of Canons 2 and 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion, or national origin in its membership or other policies, or for the judge to use such a club regularly. Moreover, public manifestation by a judge of the judges knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A.
When a judge determines that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Canon 2C or under Canons 2 and 2A, the judge is permitted, in lieu of resigning, to make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within two years of the judges first learning of the practices), the judge should resign immediately from the organization.
Ms. Toad
(34,074 posts)Unless he puts his stamp of approval on her public statements - OR - fails to counter any suggestions she makes that he agrees with her.
Her conduct is her own, not his. It only runs afoul of professional responsibility when he acts to endorse her counduct - OR - allows her to imply or state endorsement without publicly denouncing it.
Nevilledog
(51,113 posts)Ms. Toad
(34,074 posts)Lose the right to have, and speak publicly about, their own opinions?
If so, that's a problem.
If not, requiring the justice to publicly denounce their spouse's opinions violates an even clearer rule of professional conduct - that of refraining from expressing opinions on matters that may come before them.
Nevilledog
(51,113 posts)She can and does say whatever the fuck she wants to. If you don't see an "appearance of impropriety" when a Supreme Court Justice's wife directly supports finding that the January 6th committee is not serving a legislative purpose, when that very same issue is before the court, we have fundamentally different views on what "appearance of impropriety" means. It's not just that this is her opinion, she's signing and sending letters to McCarthy.
He doesn't have to agree or disagree with her, actually. He can recuse. Him saying he disagreed with her would make the GOP lose their heads. That's why you recuse!
You're acting like a judge recusing is akin to them being executed. Judges recuse all the time, often because they have familial ties to parties or related interests. Had one judge recuse in a child abuse case because his wife was involved with a child welfare agency. This agency was not involved in the case, and did not involve the judge's spouse. He recused because of the "appearance of impropriety" that arose due to his wife's involvement with this unrelated agency.
Ms. Toad
(34,074 posts)Voluntary recusal is different from an ethical violation. If you have seen it in practice as an ethical violation, I'm asking you to provide a source. I have never seen an ethics decision reprimanding a judge or justice for failure to recuse themselves from a matter on which their spouse had expressed their opinion.
There is a difference between recusing yourself from participation when you are one of 9, as opposed to 1 of however many lower court judges there are. And this is hardly the only controversial matter on which his wife is likely to express her opinion - so this is not a matter of one case (and I've seen calls for him to recuse himself before for similar reasons).
People who happen to be married to judges have every right to express their opinions (whether they are the same or different from their spouse's), and justices/judges are not obligated to recuse themselves merely because their spouse expressed an opinion.
Many choose to - and depending on the circumstances (and the ability of others to sit in their place) it is often a good thing. But there is a difference between it being a good idea, and it being ethically requiried.
Nevilledog
(51,113 posts)That I disagree with.
Have a nice evening.
Atticus
(15,124 posts)Ms. Toad
(34,074 posts)Women have fought for decades to have independent voices from their spouses/fathers/etc. We are moving back toward more control of women's voices and women's independence.
So the expectation that any woman (whether I agree with her or not) needs to remain silent to avoid forcing her husband to recuse himself is offensive.
Atticus
(15,124 posts)No one that I am aware of has even implied that Mrs. Thomas must "remain silent".
This is not at all about women's rights. It is about judicial ethics and our right to an impartial SCOTUS.
I would ask if you believe there is at least the "appearance of conflict of interest" if Thomas participates in this decision, but the obvious answer would not suit your purpose.
Ms. Toad
(34,074 posts)No, I don't believe there is the appearance of a conflict of interest. That is the entire point I have been making.
As I have stated repeatedly - his wife is an person in her own right - and is entitled to express whatever opinion she pleases, however publicly she chooses to express it. Her opinion says nothing about what Justice Thomas's opinion is, or how he might vote on any related matter.
Atticus
(15,124 posts)most of the time. But, I absolutely refuse to even try to defend nonsense I did NOT post.
Enjoy the rest of your evening.
Atticus
(15,124 posts)that there is ONE such statement of rules. There are federal rules---or "canons"---and there are, I believe, 51 very similar but separate sets of rules for the states plus DC.
On line, a general discussion can be found at the site of the National Center for Stare Courts but, since I live in Illinois, I looked at their rules.
The section entitled "Disqualification" begins with: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including BUT NOT LIMITED TO---" (emphasis mine)
There follows several sections with sub-sections listing specific issues which would require a judge to disqualify or "recuse himself or herself. And, in section three, we see language very similar to that quoted by you above. The only real difference is that the Illinois rule makes it clear that interests of a spouse need not be economic to raise the disqualification issue.
But, rather than bog ourselves down with form, is not the substance of all these rules simply to ask "Would a reasonable person in this judge's court be comfortable having him or her try their case given what his or her spouse has publicly advocated?" Here, I think the realistic answer is "No".
That is why the mere "appearance" of impartiality is a basis for recusal.
Takket
(21,575 posts)It is no, I dont care
JHB
(37,160 posts)...well... ever.
Disregard of conflicts of interest, or even the appearance of such, are a major reason why his SC nomination should have been rejected in the first place, even before his harassing behavior came to light.
Zeitghost
(3,862 posts)Your spouse's political statements do not create a conflict of interest in in any court in this country.
Atticus
(15,124 posts)Zeitghost
(3,862 posts)Judicial ethical standards are well known and don't require your approval. You had a question, it was answered. That you don't like that answer doesn't change it.
Atticus
(15,124 posts)Nevilledog
(51,113 posts)No straws allowed!
Atticus
(15,124 posts)Nevilledog
(51,113 posts)But I'd like to introduce you to Ms.Toad.