Members of the corporate media appear to be setting up a new battle within the Supreme Court, perhaps in anticipation of forthcoming conservative victories, contending that Justice Clarence Thomas, who has served 30 years on the high court, should recuse himself from overtly partisan cases due to his wife’s political activism in favor of conservative causes.
Thomas, a reliable conservative vote on the highest court in the land, surpassed his 30th anniversary on the Supreme Court of the United States (SCOTUS) in October. In the past, far-left Democrats have suggested that Thomas has an ongoing conflict of interest due to his wife Virginia “Ginni” Thomas’s passion for conservative political activism. The New Yorker, which is owned by Condé Nast, which is itself owned by Advance Publications Inc., renewed that talking point in a January 21 piece titled “Is Ginni Thomas a Threat to the Supreme Court?”
“The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, whose wife, Virginia (Ginni) Thomas, is a vocal right-wing activist,” the New Yorker’s Jane Mayer wrote, reigniting the supposed issue because the Court “appears likely to secure victories for her allies in a number of highly polarizing cases—on abortion, affirmative action, and gun rights.”
Indeed, Ginni has been involved in well-known conservative causes, founding the Tea Party-affiliated conservative political advocacy nonprofit Liberty Central in 2009. She remained an outspoken supporter of former President Donald Trump, for which the left is ever-ready to pounce.
For example, she heaped praise on the crowd of Trump supporters who gathered for Trump’s Save America rally on January 6, during the morning hours when all was peaceful. When things later descended into chaos at the Capitol, Ginni’s opponents tried to tie her earlier comments to the riot, despite her public statements opposing the violence.
That riot triggered the left’s second failed impeachment trial. At the time, Democrats accused Trump of inciting insurrection. Yet, for the second time, Democrats failed to convict him.
Ginni has also highlighted a number of concerns, including connections between the Democrat Party — including people like twice-failed presidential candidate Hillary Clinton and Vice President Kamala Harris — and George Soros, as well as the “Biden Crime Family,” which Breitbart News has covered extensively.
While Ginni has a background in law, she is not a practicing lawyer, never appears in a courtroom, adds her name to amicus briefs, or signs her name to filings. Despite the accusatory arguments continually lodged by the far-left, Thomas’s wife has zero involvement in her husband’s branch of government, creating total separation.
By targeting Thomas for his wife’s activism, some surmise left-wing critics are attempting to eliminate a reliable conservative vote in highly partisan cases that matter.
Yet, critical Democrats do not overtly extend the same criticism to their own side, as displayed in the relationship between Nina Pillard, a federal judge for the United States Court of Appeals for the District of Columbia Circuit, and her husband David Cole, a practicing lawyer who serves as the national legal director for the American Civil Liberties Union (ACLU).
Cole serves as the top lawyer for the nonprofit, supervising and directing lawsuits day in and day out. According to the website, the program he directs includes “approximately 1,000 state and federal lawsuits on a broad range of civil liberties issues”:
He manages 140 ACLU staff attorneys in New York, Washington, San Francisco, and North Carolina, oversees the organization’s U.S. Supreme Court docket, and provides leadership to approximately 300 staff attorneys who work in ACLU affiliate offices across the country.
Hardly a nonpartisan organization, the ACLU openly objected to countless areas directly tied to the Trump agenda, including the construction of the border wall, throughout the years. More broadly, the ACLU supports abortion on demand, vaccine mandates, racial preferences, and opposes religious liberty, election integrity laws, and interpreting the Constitution according to its original meaning. Pillard sits on many cases raising these issues.
“President Trump today signed executive orders directing the federal government to fund construction of a wall along the United States’ border with Mexico and to freeze funding to sanctuary cities,” the organization said when Trump announced those policies. “These orders send a clear and disappointing signal that the Trump Administration will seek to enact unlawful, draconian immigration policies. The ACLU will continue to fight these efforts every step of the way.”
The ACLU also advocates for asylum-seekers, vehemently supports the Dream Act and DACA, and actively litigates for the release of certain prisoners held at Guantanamo Bay. Further, Cole specifically wrote an article appearing in The New York Review of Books in February 2017, arguing that Trump violated the Constitution for failing to release his taxes.
“The real story in Trump tax returns story: about the only thing he’s actually earned money on is The Apprentice. All his actual business investments are total losers. He’s not a business man. He just plays one on TV,” he tweeted in September 2020.
The real story in Trump tax returns story: about the only thing he’s actually earned money on is The Apprentice. All his actual business investments are total losers. He’s not a business man. He just plays one on TV.
— David Cole (@DavidColeACLU) September 27, 2020
In a 2017 piece published by The Progressive Magazine, Cole is quoted as saying, “People see Trump as an across-the-board threat to basic civil liberties and civil rights.”
“I think Trump’s election poses the greatest threat to civil rights and civil liberties that this country has seen out of wartime—and we might soon be in wartime,” he said.
That same year, he referred to the commander-in-chief as a “populist demagogue.”
The ACLU’s advocacy and Cole’s involvement could easily pose as a major ethical issue if the legal standard was that such actions cross the line, given Pillard’s position as a federal judge. The record shows she generally does not participate in decisions involving an ACLU matter, such as recusing herself from an ACLU-linked case in September 2020. Indeed, she has participated in cases her husband remained quite vocal about. For instance, in August 2020, Pillard participated in a hearing to dismiss charges against Michael Flynn — something her husband spoke about publicly. However, there are instances like Trump v. Mazars, where Democrats sought President Trump’s financial records, and Pillard did not recuse herself from the vote of whether the full court should hear the case (called an en banc rehearing), even though Cole was publicly outspoken on the case, and he signed his name to an amicus brief the ACLU then filed at the Supreme Court in the case.
Reacting to the news of former Attorney General William Barr’s resignation in December 2020, Cole explicitly referred to Michael Flynn as a Trump crony.
Bill Barr was one of the worst attorneys general in U.S. history. He deployed the Justice Department not to promote justice, but to serve Donald Trump. He blatantly mischaracterized the Mueller report to whitewash its findings before the public could see it, questioned the motives of a legitimate investigation into Russian influence on the Trump campaign, revived the federal death penalty in ways that limited defendants’ rights to fair hearings, and interfered in federal prosecutions to aid Trump cronies Michael Flynn and Roger Stone. He forfeited the Justice Department’s independence and integrity in obeisance to the president. Yet when he was unwilling to repeat Trump’s wholly false claims about voter fraud, Trump essentially dumped him. That even Barr was unwilling to go as far as Donald Trump says more about the president than it does about the attorney general.”
And that is far from the first time he has publicly voiced such strong, partisan opinions.
On May 29, 2020, Cole publicly complained of what he described as “Trump’s latest shows of authoritarianism.”
Whatever else one can and should say about Trump's latest shows of authoritarianism re Twitter and shooting looters, he has certainly succeeded in deflecting attention from the fact that, under his watch and because of his decisions, 100,000 Americans have died–and counting.
— David Cole (@DavidColeACLU) May 29, 2020
In November 2020, Cole became more outspoken about the Chinese coronavirus pandemic and lockdowns, accusing those who refuse mask mandates as killing people.
“Thanks a lot, President Trump,” he quipped.
The sad thing is that if we all took masks, social distancing, and testing seriously, the more extreme measures like lockdowns would generally be unnecessary. It’s those who refuse these simple measures who are killing us—and our economy. Thanks a lot, President Trump. https://t.co/7aWugv2IT9
— David Cole (@DavidColeACLU) November 15, 2020
Notably, Ginni is believed to have defended her political activism on her now nonexistent Twitter account in October 2018, directly using Cole’s political activities of “fighting the Trump agenda” at the ACLU — despite his wife’s status as a federal judge — as an example.
Unlike Ginni Thomas, however, Cole works squarely within his spouse’s arena. Pillard has participated in a number of cases that overlap with ACLU advocacy areas, including Lung Ass’n v. EPA, directly participating in a decision that largely overturned the Trump administration’s narrow reading of the Clean Air Act. The decision is currently being appealed. Further, she has participated in other cases involving the EPA and former EPA administrator Scott Pruitt, whom the ACLU, her husband’s organization, frequently attacked and sued.
She has also participated in a number of cases on Trump immigration policies including North American Butterfly Ass’n v. Wolf, where she authored an opinion of the court that implicated DHS funding for the border wall. Similarly, she authored the opinion of the court in Khine v. U.S. Dep’t of Homeland Security, finding that a charitable organization supporting asylum-seekers had not yet exhausted its administrative remedies in a FOIA request for DHS documents.
Additionally, Pillard also participated in several cases involving Guantanamo Bay detainees — another key advocacy area for the ACLU. Yet, there only appears to be one case, Bahlul v. United States, where the judge came out on the side of the detainee.
However, Judge Pillard has not violated any judicial ethics rules. The rule is that a judge must be impartial. Even with a politically active spouse working in the same arena, judges are not required to recuse when a spouse or immediate family member is not actually representing a party before the judge or the judge has no financial interest in the outcome of the case. Suffice to say, if the separation of Pillard and Cole is on the right side of the legal line, then Ginni’s level of separation from her husband’s position is significantly further from that line.
But, that is, evidently, not stopping the left from launching this line of attack, perhaps in anticipation of a series of left-wing losses in the Supreme Court this term. The New Yorker continued:
All judges, even those on the Court, are required to recuse themselves from any case in which their spouse is “a party to the proceeding” or is “an officer, director, or trustee” of an organization that is a party to a case. Ginni Thomas has not been a named party in any case on the Court’s docket; nor is she litigating in any such case. But she has held leadership positions at conservative pressure groups that have either been involved in cases before the Court or have had members engaged in such cases.
However, the far-left ran into this issue when Prop 8 became the subject of controversy, as LGBT activists sued over California’s constitutional amendment effectively banning gay marriage, arguing it violated the U.S. Constitution in Perry v. Schwarzenegger. One of the judges in the case was Stephen Reinhardt, a Ninth Circuit appeals judge who is a hero of the liberal left. His wife at the time was the executive director of the ACLU of Southern California, and the group had litigated nonstop in front of his court, including filing a brief in the trial court of the Prop 8 case, a case that eventually ended up before him where he served on the three-judge panel.
As a result, a motion was filed for Reinhardt to recuse himself because of his wife’s work and his own apparent bias, but he denied their motion to recuse and penned an energetically unapologetic opinion on the matter, defending his participation.
“The chief basis for the recusal motion appears to be my wife’s beliefs, as expressed in her public statements and actions, both individually and in her capacity as Executive Director of the American Civil Liberties Union of Southern California (ACLU/SC),” he wrote.
“My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence,” he continued, identifying his wife as a “strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa).”
My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.
Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage—that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned because of her opinions or the views of the organization she heads.
He later added that his wife was “not a party to this case,” she was “not a lawyer in the proceeding” and nor did she have an “interest that could be substantially affected by this proceeding’s outcome.”
Moreover, in regards to partisan leanings and ties of justices, the far-left hardly took issue when the late-Justice Ruth Bader Ginsburg criticized then-candidate Donald Trump in 2016.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that,” she told the New York Times, later doubling down and referring to him as a “faker.” The left appeared to be amused by her remarks but admitted they were unethical.
Ginsburg eventually apologized for making the “ill-advised” remarks, expressing regret for making them.
The Supreme Court’s new term began Monday, October 1, 2021. Thomas recently joined his conservative colleagues in striking down President Biden’s Occupational Safety and Health Administration (OSHA) vaccine mandate, which would have affected roughly 84 million workers.
Mayer’s New Yorker article noted that she had tried reaching Ambassador Ken Blackwell for comment on her story. Blackwell contacted Breitbart News to respond to the article.
“I had no interest in talking with Mayer because she’s a political assassin looking for dirt for a hit job,” Blackwell exclusively told Breitbart News. “Clarence and Ginni are not only good friends, they are model public servants and citizens who show how married couples can follow their separate professional callings with the utmost integrity. We should all aspire to follow their example.”