26 March 2022

Thomas and why recusal is absolutely mandatory

I'm not a lawyer, but I used to play one in the office. (I described my profession as  "Legal Ghostwriter," although technically I was a "Legal Assistant," a job title often used for what used to be called legal secretaries, because that's what I actually did: written work for lawyers to sign as their own work). Anyway, this is all a complete diversion from my point, which is this: Clarence Thomas has already grossly violated any reasonable standard of legal ethics by not recusing himself from cases in which his wife and her extremist political activism are entangled. As Josh Marshall put it, he " should recuse himself from any Jan 6th or Trump election (past or future elections)–related cases."  But Marshall then goes on to explain, correctly but I think irrelevantly, that the Thomases must have discussed all this, he is involved in her political activities, etc. This, however is not the point. Recusal is required when the connection is plausibly inferred. Or, in other words, on the appearance of a conflict of interest, whether or not an actual conflict exists. Whether there actually was communication and compromising influence is immaterial. The mere appearance that it could have happened, the mere fact that she is his wife and is involved in some way in these cases, is enough to require it. A competent and ethical jurist would recuse as a matter of course, and only a anti-democratic authoritarian operative posing as a jurist in the Anglo Saxon judicial tradition would fail to do so. QED.

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