Opinion Right-wing judges flaunting their bias and conflicts threaten democracy
Thomas declined to recuse himself in the matter involving release of Meadows’s text messages relating to the Jan. 6, 2021, coup attempt. He was the sole dissent in the ruling ordering that the messages be released. At the time, constitutional scholar Leah Litman told me, “The court protects its reputation in large part through good will, and by acting like a respectable institution. Ginni Thomas is burning through that good will at a rapid pace — making the court and its justices appear corrupt, as if they are or could be casting votes in cases based on the interest or possible involvement of their spouse.” Calling Thomas’s refusal to recuse “appalling,” Litman joined others, including Rep. Ted Lieu (D-Calif.), who sits on the House Judiciary Committee, in castigating Thomas for “wielding his significant power to attempt to shield his wife and himself from scrutiny is an abuse of his role as a Supreme Court justice.”
And that brings us to Thursday’s argument about whether the attempted coup was an “insurrection.” When Trump’s counsel conceded that it was a “criminal” activity, one could barely believe that Thomas was allowed to sit there. Imagine if this were a robbery case and the judge’s wife had urged on the robbers. No one with a shred of respect for the judicial system would countenance that judge hearing such as case.
Rep. Dan Goldman (D-N.Y.), a former prosecutor, weighed in on Thursday: “Justice Thomas’s participation in Trump’s ballot case is a shocking and intentional violation of his ethical obligations. Clarence Thomas is not above the law.” He added, “This is a true crisis at the Court.” And, of course, this makes a total mockery of the announced “ethics” guidelines.
It is a shame that the counsel for Colorado did not petition Thomas to recuse. Thomas would not have done so, but it would have focused the other justices and the American people on the travesty.
Thomas is hardly the only right-wing judge fouling the judicial nest. Even before her latest ruling in the matter concerning Trump’s alleged snatching of highly sensitive documents and obstructing the investigation thereof, U.S. District Judge Aileen M. Cannon’s impartiality was sufficiently in doubt as to warrant recusal. Her ruling appointing a special master and preventing the Justice Department from continuing its national security investigation was widely vilified and reversed unanimously by the infamously conservative U.S. Court of Appeals for the 11th Circuit.
When she was assigned the criminal case, legal scholars Norman L. Eisen, Richard W. Painter and Fred Wertheimer wrote at Slate, “Because her earlier handling of this case went well outside the judicial norm and was roundly criticized by the Court of Appeals, reasonable observers of this case could question her impartiality.” They explained, “Federal law has a way to deal with this challenge: Under 28 U.S.C. § 455(a), a judge ‘shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.’ Cannon’s situation clearly fits that test, and she is obligated to recuse herself in Trump’s case.” Unfortunately, the special counsel made no motion to recuse.
Since then, the argument for recusal has grown only stronger. Last month, constitutional gurus Dennis Aftergut and Laurence H. Tribe wrote that Cannon’s ruling rejecting “special counsel Jack Smith’s entirely standard request that she order Trump to state whether he intends to rely on an ‘advice of counsel’ defense” was yet another sign the judge was in Trump’s “pocket.” That followed months in which she has foot-dragged, delayed and made irrelevant demands of the prosecutors.
Then came her latest affront: Granting Trump’s motion to unseal classified documents. As the special counsel noted, this would put the identities of government witnesses at risk, reveal “signals intelligence” and identify an FBI code name. This is a bridge too far. Smith filed a motion for Cannon to reconsider, citing the threats to witnesses, her “clear error” and her disregard for 11th Circuit precedent.
Multiple legal experts registered their alarm. But there is a remedy if Cannon does not reverse herself. As the Lawfare blog explained, “Section 7 [of the Classified Information Procedures Act] allows the government — and only the government — to file a fast-track interlocutory appeal of any district court ruling that would require the disclosure of classified information or penalize the government for failing to reveal such information.” Smith could exercise that right, combine it with a motion to recuse and clearly articulate the argument that in this case Cannon’s bias not only makes it impossible for the government to get a fair trial but puts national security at risk. Alternatively, former prosecutor Joyce Vance wrote that Smith could wait until “the Section 4 hearing rulings are issued.” That is when Cannon will decide if classified documents must be revealed at trial.
Whatever the timing, Smith should not let these unprecedented and dangerous rulings slide. Though the special counsel might be concerned about aggravating Cannon, she could hardly be more unfair than she has already been. Having harshly rebuked her in the civil case, the 11th Circuit might be more prepared than usual to intervene.
In short, both Thomas and Cannon pose a troublesome question: To what degree do we allow ethically challenged hacks on the bench to hijack our judicial system? If we do nothing in the face of the Supreme Court’s outlandish violations of ethical restraints or when lower-court judges become partisan flunkies, Trump’s sabotage of the rule of law will succeed. And let’s remember: In the event Trump gets a second term, the federal courts will be littered with the likes of Thomas and Cannon. Now, that’s a reason to keep him far from the Oval Office.
Posts
No comments:
Post a Comment