Robert Reich: What To Do About Clarence Thomas? – OpEd


Trump’s legal problems are mounting — with growing probability of criminal prosecutions over his staging an attempted coup, stealing top-secret documents, and illegally avoiding taxes. 

You know where all this is going to end up, right? The Supreme Court. 

What are the chance that Trump’s three appointees along with the two rightwing justices already on the high court when Trump was elected, Samuel Alito and Clarence Thomas, will allow the former president to be locked up? 

I can’t predict. That they were appointed by Trump or another Republican president does not pose an illegal conflict of interest. 

But I’ll tell you what is clearly an illegal conflict of interest: Clarence Thomas’s continued participation in any case arising from Trump’s attempted coup. 

A federal law — 28 U.S. Code § 455 — requires that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

If Thomas fails to recuse himself from the Moore v. Harper case currently before the Court, he will be breaking that law. The bogus “independent state legislature” theory at the heart of Moore v. Harper was used by Thomas’ wife, Ginni Thomas, to pressure state lawmakers to overturn the 2020 election results.

Given these extraordinary actions by Ginni Thomas in the wake of the 2020 election, surely it’s reasonable to question the impartiality of Clarence Thomas. 

Let’s be clear: The legal issue here is not whether Clarence Thomas is in fact impartial. The point of the federal law governing judicial conflicts of interest is to preserve the public’s trust in our legal system by eliminating even the appearance of partiality. 

Thomas’s refusal to recuse himself from Moore v. Harper would further damage the integrity of the Court.

The stakes are significant. If the Supreme Court rules in favor of the plaintiffs in Moore v. Harper, Republican-controlled state legislatures could pass harsher voter suppression laws, enact even more gerrymandered maps, and potentially even change how electors are chosen in a presidential election — the specific strategy Ginni Thomas urged after the 2020 presidential election. (The Electoral Reform Act would go some way toward preventing this, but a determined state legislature and governor might use Moore v. Harper to justify it nonetheless.)

What to do about Clarence Thomas’s illegal conflict of interest? 

I can think of at least three things (short of seeking to impeach him, which would be a non-starter in the soon-to-be Republican House) that should be done.

Chief Justice John Roberts should publicly state that Thomas must recuse himself from Moore v. Harper because his impartiality might reasonably be questioned. 

The Senate should hold public hearings on Thomas’s apparent violation of law, including asking him to testify.

The Justice Department should convene a grand jury to consider whether Thomas has violated the law. 

None of these will result directly in a legal finding that Clarence Thomas has an illegal conflict of interest. But they will shine a spotlight on it, pushing Thomas either to recuse himself or explain clearly why he won’t. 

No person is above the law — not even someone charged with interpreting it. 

Robert Reich

Robert B. Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, and writes at Reich served as Secretary of Labor in the Clinton administration, for which Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written fifteen books, including the best sellers "Aftershock", "The Work of Nations," and"Beyond Outrage," and, his most recent, "The Common Good," which is available in bookstores now. He is also a founding editor of the American Prospect magazine, chairman of Common Cause, a member of the American Academy of Arts and Sciences, and co-creator of the award-winning documentary, "Inequality For All." He's co-creator of the Netflix original documentary "Saving Capitalism," which is streaming now.

3 thoughts on “Robert Reich: What To Do About Clarence Thomas? – OpEd

  • December 25, 2022 at 4:15 pm

    I do not understand how you think that you are qualified to comment on Mr.Thomas’ qualifications, demeanor or attitudes…or the law. You are not qualified because you have an extremely biased viewpoint of the world.

    You use derogatory and red herring statements such as Trump’s “staging an attempted coup, stealing top-secret documents, and illegally avoiding taxes”. (Those have not been decided yet.) Then, “…two rightwing justices already on the high court…”. (“Right wing”, really? They can’t possibly be Constitutionalists because they don’t subscribe to your ‘left wing’ ideals.) And, “…is clearly an illegal conflict of interest: Clarence Thomas’s continued participation in any case arising from Trump’s attempted coup”. And there are many more in your short op-ed. Your complete and total bias shows you to be a propagandist, not a teller of facts from which an opinion can be reasonably based.

    Then, for the readers of your ‘opinion’, you rewrite the Constitution and history with “The bogus “independent state legislature” theory at the heart of Moore v. Harper…”. First, it is written in the Constitution and therefore second, it is not “bogus”. Oh, I know, there are some Democrat lawyers who are trying to twist history, saying that the “legislature” was an all encompassing term for all government bodies and that the plain English language is not what was meant in 1776. That is what is “bogus”. So in addition to your propaganda shown above, you are also engaged in misinformation.

    Then I see your background. Professor at that bastion of left wing thought, UC Berkley, the Clinton Administration, chairman of Common Cause, American Prospect magazine. The Clinton Administration was seen as somewhat middle-liberal but the rest are all ‘Progressive’, a polite word for ‘Marxist’.

    You certainly have the right to opine on your views of the world. However, your clear subjective bias and complete lack of objectivity to facts makes you obviously unqualified to report ‘news’ to these readers. You have a right to opine all you want but I suggest that you have no right to spread misinformation, which of course, is just a nice word for ‘lies’.

    • December 26, 2022 at 3:16 am

      a perceived conflict of interest seems apparent, but the game show that is American Democracy won’t be bothered by reality

    • December 26, 2022 at 8:15 pm

      If the independent state legislature theory is adopted as practice our democracy is done. Whereas your support for the right wing nut faction is appreciated, I’m with Bob. Best Secretary of Labor I worked under. I don’t want to become Russia.


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