New York Times Shocked That Clarence Thomas’s Wife Has A Job
Supreme Court Justice Clarence Thomas's wife Virginia is under scrutiny ? Why ? Because she has a job.
The New York Times is out today with a story about Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, that can only be described as a hit piece:
RICHMOND, Va. — As one of the keynote speakers here Friday at a state convention billed as the largest Tea Party event ever, Virginia Thomas gave the throng of more than 2,000 activists a full-throated call to arms for conservative principles.
For three decades, Mrs. Thomas has been a familiar figure among conservative activists in Washington — since before she met her husband of 23 years, Justice Clarence Thomas of the Supreme Court. But this year she has emerged in her most politically prominent role yet: Mrs. Thomas is the founder and head of a new nonprofit group, Liberty Central, dedicated to opposing what she characterizes as the leftist “tyranny” of President Obama and Democrats in Congress and to “protecting the core founding principles” of the nation.
It is the most partisan role ever for a spouse of a justice on the nation’s highest court, and Mrs. Thomas is just getting started. “Liberty Central will be bigger than the Tea Party movement,” she told Fox News in April, at a Tea Party rally in Atlanta.
But to some people who study judicial ethics, Mrs. Thomas’s activism is raising knotty questions, in particular about her acceptance of large, unidentified contributions for Liberty Central. She began the group in late 2009 with two gifts of $500,000 and $50,000, and because it is a 501(c)(4) nonprofit group, named for the applicable section of the federal tax code, she does not have to publicly disclose any contributors. Such tax-exempt groups are supposed to make sure that less than half of their activities are political.
Unlike many other conservative nonprofit groups that are pouring donations into television advertising to benefit Republican candidates, Liberty Central has not done so, and it is not clear whether it will.
This month, Liberty Central began what it called its first ad campaign, but the ads were limited to Web sites for the conservative talk-show hosts Rush Limbaugh and Mark Levin — suggesting an effort to build membership for Liberty Central, not elect candidates. The ads link to Liberty Central’s Web site and a video of Mrs. Thomas soliciting 100,000 signatures against the “Obama tax increase” — referring to the scheduled expiration of the Bush tax cuts on Dec. 31.
The bigger question for many is how she is financing these activities. Liberty Central reported the initial $550,000 on its 2009 tax return, though the identities of the two donors are redacted.
A federal law requires justices to recuse themselves in a number of circumstances where real or perceived conflicts of interest could arise, including in cases where their spouses could have a financial interest. But the decision to step aside is up to each justice; there is no appeal from the nation’s highest court.
“It’s shocking that you would have a Supreme Court justice sitting on a case that might implicate in a very fundamental way the interests of someone who might have contributed to his wife’s organization,” said Deborah L. Rhode, a law professor and director of the Stanford University Center on the Legal Profession.
“The fact that we can’t find that out is the first problem,” she said, adding, “And how can the public form a judgment about propriety if it doesn’t have the basic underlying facts?”
Steven Lubet, who teaches legal ethics at Northwestern Law School, said Mrs. Thomas’s solicitation of big contributions raised potential recusal issues for her husband. But he added, “There’s no reason to think that Justice Thomas would be anything other than extremely careful about it.”
This isn’t the first time that Mrs. Thomas’s employment became a subject of press obsession, The Los Angeles Times ran a similar piece earlier this year when she first became affiliated with Liberty Central, and liberal bloggers like Alan Colmes, Crooks and Liars and AMERICAblog News were all over the story then, just as they are now. As Eugene Volokh explained back in March, though, there really isn’t anything unusual or improper about the fact that Clarence Thomas’s wife works for a political advocacy organization:
Justice Thomas is not the only judge to have had a spouse in a prominent political role. Ninth Circuit Judge Stephen Reinhardt’s wife, Ramona Ripston, has just stepped down from being head of the Southern California ACLU. Third Circuit Judge Jane Roth’s husband was a U.S. Senator; Third Circuit Judge Marjorie Rendell’s husband is a governor. So I’m not sure that there’s really a judicial norm that judge’s spouses should stay out of politics, whether partisan politics, advocacy group politics, or public interest litigation (itself a form of politics, at least when done effectively).
And while the matter hasn’t to my knowledge arisen as to the U.S. Supreme Court, that might have chiefly been a matter of small numbers and the recency of women’s substantial participation in politics, rather than of any consciously accepted norm. All but three Supreme Court Justices have been men. Until recently, women haven’t been involved either in partisan or ideological politics at nearly the level we see now. And it makes sense that of the few male Justices who have served during an era when men their age have wives who might be interested in politics, only one has had a wife who was indeed interesting in that sort of thing. At the circuit judge level, the numbers are just much greater, as are the numbers of female judges whose husbands are interested in politics.
What we have here is the inevitable result of the growing equality of women, the resulting growing tendency of lawyers to marry lawyers (and lawyers are disproportionately likely to go into politics), and the general tendency of people to marry others like them. It makes sense that many judges these days are women whose husbands are of the profession, social class, and cast of mind that makes them want to go into politics. It makes sense that many male judges have wives who are likewise likely to be interested in politics. And of course since spouses are supposed to help each other (and much such help is entirely legitimate), the success of one may yield more opportunities for the other.
Nor does this strike me as particularly pernicious or dangerous: Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups. That too is inevitable, and the fact that a spouse (or a child) has a high-profile political position doesn’t add much, I think, to those existing predispositions. In particular, I don’t think that the desire to remove any such mild additional influence of the judges justifies limiting the lives of the judge’s spouses and children. Virginia Thomas, like Ramona Ripston, should be free to go where her beliefs and talents take her, without having her spouse’s job cripple those ambitions.
Of course, this is Clarence Thomas we’re talking about so normal rules of fairness don’t apply apparently.