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What Ketanji Brown Jackson can teach Clarence Thomas about judicial ethics

As expected, Sen. Ben Sasse (R-Neb.) voted against Judge Ketanji Brown Jackson’s nomination to the U.S. Supreme Court, along with every other Republican on the Senate Judiciary Committee. Because nobody could reasonably argue with Jackson’s qualifications, Sasse said that he and the nominee simply “disagree on judicial philosophy.”

Other Republicans put it nearly the same way. Sen. Lindsey Graham (R-S.C.) criticized Jackson’s “lack of a steady judicial philosophy,” and Sen. John Cornyn (R-Texas) complained of her “unwillingness to disclose her judicial philosophy.”

They got it exactly wrong. As Judiciary Committee Chairman Richard Durbin (D-Ill.) explained, Jackson eschewed “contemporary labels” for her philosophy, while demonstrating in her testimony that her approach to judging rests on a bedrock of impartiality, candor and respect for the law, notably including the law of recusal.

She thus stands in sharp contrast to Justice Clarence Thomas, who, as we have learned, has persistently disregarded his recusal obligations. The anti-confirmation Republican senators would do well to recognize that no judicial philosophy – including Thomas’s hard-core, conservative-friendly originalism – is more important than integrity.

There were plenty of tense moments at Jackson’s Senate confirmation hearing, with Republican senators harshly challenging her judgment on the flimsiest of grounds — which Sasse called “jackassery” and Sen. Richard Blumenthal (D-Conn,) called “concocted outrage.”

The most potentially consequential exchange, however, was among the most restrained, when Sen. Ted Cruz (R-Texas) asked Jackson whether she would recuse herself in a case scheduled for hearing in the court’s next term. Jackson’s unambiguous answer should stand as a model for the sitting justices and, indeed, a rebuke to Thomas.

Cruz was referring to Students for Fair Admissions v. Harvard College, in which a group of Asian applicants have alleged that Harvard’s affirmative action program has violated “Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.” Jackson attended Harvard for both undergraduate school and law school, and she has served on Harvard’s Board of Overseers since 2016.

Cruz’s question about the case was straightforward: “You’re on the Board of Overseers of Harvard. If you’re confirmed, do you intend to recuse from this lawsuit?”

There was enough room for Jackson to duck the question. The Board of Overseers provides “counsel to the university’s leadership” but otherwise appears to have no actual authority over Harvard’s affirmative action program, and Jackson’s term ends next May, long before the case will be heard or decided by the Supreme Court. Moreover, recusal is a judicial act, so she might have declined to predict how she would rule until she has access to all the facts of the lawsuit. That is how Justice Amy Coney Barrett handled a similar question at her own confirmation hearing.

Instead, Jackson gave a plain answer.

“That is my plan, senator,” she said, without hesitation.

Thomas has flouted his own recusal obligations for years. As reported in the New Yorker and the New York Times, he has repeatedly participated in cases implicating the many conservative political causes actively promoted by his wife, Virginia Thomas. Ms. Thomas recently disclosed that she had attended the so-called “Stop the Steal” rally that preceded the insurrection at the Capitol building on Jan. 6. Nonetheless, Justice Thomas did not recuse himself when President Trump’s challenge to subpoenas from Congress’s select committee to investigate the attack came before the court.

In a written opinion by Chief Justice Roberts, the court rejected Trump’s position by an 8-1 vote. Only Thomas sided with Trump, providing the sole dissent without explanation of either his position on the merits or his decision to sit in the case.

Even worse, newly-released text messages between Ms. Thomas and Mark Meadows, Trump’s chief of staff, document her relentless encouragement of the many failed lawsuits attempting to overturn the 2020 presidential election. Justice Thomas, however, still participated in those cases that actually reached the Supreme Court, again providing a lone dissent to the court’s refusal to entertain a challenge to the result in Pennsylvania.

Although the Supreme Court has steadfastly refused to adopt a code of ethics, a federal statute requires the justices to disqualify themselves in cases where their “impartiality might reasonably be questioned.” In over 30 years on the court, however, Thomas has never even acknowledged a possible conflict of interest due to his wife’s political activities, much less recused himself in cases where, as we now know, her behind-the-scenes maneuvering played a significant role.

In answering Cruz without equivocation, Jackson showed great respect for the principles of transparency and impartiality. Cruz did not follow up – perhaps because he saw nothing in her answer he could challenge or exploit – but in some ways that is too bad. The public, including Sasse and other Republican senators, would have benefitted if Jackson had expanded on her admirable approach to recusal, as she did later in responses to Republicans’ written questions.

Every Democrat on the Judiciary Committee voted in favor of Jackson, meaning that the nomination is now headed to the Senate floor on Majority Leader Charles Schumer’s (D-N.Y.) discharge petition. The announced support from at last three Republicans – Sen. Susan Collins (R-Maine), Sen. Lisa Murkowski (R-Alaska), and Sen. Mitt Romney (R-Utah) – appears to make Jackson’s confirmation inevitable when the full Senate votes at the end of the week.

There will be many important challenges and responsibilities facing soon-to-be Justice Jackson on the Supreme Court. One of her first assignments ought to be teaching Justice Thomas a few things about judicial ethics.

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”

Tags Amy Coney Barrett Ben Sasse Clarence Thomas Clarence Thomas Confirmation Confirmation hearings John Cornyn Judge Kentaji Brown Jackson Kentanji Brown Jackson Ketanji Brown Jackson Lindsey Graham recusal Ted Cruz US Supreme Court Virginia Thomas Virginia Thomas

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