What can Democrats do about Clarence Thomas?

What can Democrats do about Clarence Thomas?

Paul Waldman — Read time: 4 minutes

The controversy over Virginia “Ginni” Thomas, Clarence Thomas and the Jan. 6 insurrection is demonstrating one profound difference between Democrats and Republicans: how they view the value of making a stink.

People in Washington have long known that Ginni Thomas is unique among spouses of Supreme Court justices: She’s a professional conservative activist who is influential in Republican administrations and works directly on issues before the court. With the release of her text messages with Mark Meadows leading up to Jan. 6, 2021, her far-right extremism has become impossible to ignore: along with urging Trump’s chief of staff to help overturn the election, she trafficked in QAnon-type conspiracy theories.

Given his wife’s role in encouraging the effort to overturn the election that culminated in the awful events of that day, Clarence Thomas should obviously recuse himself from any case having to do with Jan. 6. But what can Democrats do about him?

The way Democrats are answering that question tells us a lot about their party.

This Friday, 17 progressive organizations are releasing a letter calling on Democrats to launch a congressional investigation of Justice Thomas’s "misconduct in his handling of cases regarding the January 6 insurrection, the 2020 presidential election, and other cases involving his wife’s political activities.”

As the groups note in their letter, which is spearheaded by Take Back the Court, Supreme Court justices are bound by a federal statute that says they, like other judges, should recuse themselves from any case in which their “impartiality might reasonably be questioned.”

Thomas has already violated this law, the letter argues, by ruling on multiple cases involving both the 2020 election and the insurrection.

What might a congressional investigation accomplish? The letter argues that it might determine “whether Justice Thomas’ conduct was consistent with basic principles of judicial ethics, whether he violated federal law and his oath to 'impartially discharge and perform his judicial duties, and what actions must be taken in response.”

But so far, Democrats have largely been restrained in response to the Ginni Thomas revelations. While a few more liberal lawmakers, including Rep. Alexandria Ocasio-Cortez (D-N.Y.) have said Clarence Thomas should resign or be impeached, Democratic leaders have not.

Senate Majority Leader Charles E. Schumer (D-N.Y.) and others have called only for Thomas to recuse himself in future cases involving Jan. 6. Asked whether Thomas should be impeached, House Speaker Nancy Pelosi (D-Calif.) said, “I don’t think he should ever have been appointed,” which is essentially a dodge.

This is not how you create a scandal, if that’s what you wanted to do.

Perhaps liberal activists, progressive members of Congress and the Democratic base can create enough pressure that the Democratic leaders will feel compelled to start an investigation. But there’s immediate resistance to that idea.

Why? In part this resistance is grounded in a recognition of a cold reality: Thomas will probably stay on the court until the day he dies (or at least thereabouts), doing pretty much as he likes, and there isn’t much Democrats can do about it.

Remember the idea that justices are bound by the law demanding their recusal in cases in which their impartiality could be questioned? That’s not exactly true, because there’s no body or agency with authority over the Supreme Court to force compliance with the rules. Justices decide for themselves whether they should recuse in any given case. Clarence Thomas just won’t, because he almost never recuses himself, and the very fact that Democrats are demanding it makes it less likely that he will.

Which Democrats know. They also know it’s unlikely that an investigation would result in an impeachment, let alone a conviction. Many Democrats probably think that, ethically speaking, Thomas isn’t quite guilty of a felony, and so impeachment might not be warranted; you’d need Republicans to convict him, which would absolutely never happen.

Those practical considerations will stay most Democrats’ hands. But when Republicans are in this kind of position, they don’t care whether the practical goals of such an effort will come to pass. For them, raising a stink is an end in itself.

Republicans raise stinks as part of a never-ending effort to create controversy, chaos and scandal around Democrats. Should we mount the fifth, sixth, seventh congressional investigation of Benghazi? Of course! Let’s just keep yelling!

It’s not that Democrats never gin up a manufactured controversy about Republican misdeeds. But they’re just not as eager to do it as Republicans are. Democrats are usually on the lookout for reasons not to, especially when they’re in power and want to spend time on governing priorities.

Indeed, in something of an ironic twist, Republicans’ own contempt for norms, ethics, rules, and the very processes of our system has a kind of demoralizing effect on Democrats, making them less likely to go after figures such as Thomas. He doesn’t care about his ethical obligations and won’t recuse himself no matter how loudly we demand it, some Democrats will say, so what’s the point?

That’s not a question Republicans would ask if they were in the same situation. But Democrats do ask it of themselves. Which sends a message to Republicans that the rules don’t really apply to them, and they can act with impunity. Clarence Thomas has surely taken note.