Wednesday, March 30, 2022

Ginni Thomas, Anne M. Burke, and Doris Kearns Goodwin

How's that for a clickbait headline? But, Dear Reader, I think I can tie this up.

Let's start with Ginni Thomas, a/k/a as Mrs. Clarence Thomas, wife of U.S. Supreme Court Justice Clarence Thomas, and author of some "batshit crazy" text messages sent to White House Chief of Staff Mark Meadows after the 2020 election. Quoting now from Bess Levin's March 25 article for Vanity Fair, "Should Clarence Thomas be impeached over Ginni Thomas's deranged text messages?"
On November 5, for example, before Joe Biden was officially declared the winner, Ginni quoted a right-wing website, writing: “Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.” On November 10, after news outlets projected the Democratic candidate had the electoral votes, she texted Meadows, of Trump: “Help This Great President stand firm, Mark!!!...You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.” Two weeks later, she told Meadows not to “cave to the elites,” and later, “I can’t see Americans swallowing the obvious fraud.” Midway through the month, she urged Meadows to make Sidney Powell—the lawyer who promoted claims like “there is a secret server that all the votes go to where they [are] manipulate[d]”—“the lead and the face” of Trump’s legal team. At one point, Ginni wrote to Meadows: “Sounds like Sidney and her team are getting inundated with evidence of fraud. Make a plan. Release the Kraken and save us from the left taking America down.”
The assessment that these texts are "batshit crazy" is also Ms. Levin's. I am entirely certain that there are no crazier texts that Ms. Levin could find because she surely would have quoted them if such were available. On the other hand, I find it hard to imagine that there are any texts not quoted that could provide some context in which these might not appear quite so crazy. Therefore, for the record, I agree that Ms. Levin's assessment is entirely reasonable.

You will not be surprised, perhaps, to learn that Ms. Levin answers the question posed by the headline of her article with an emphatic "yes." The allegedly impeachable offense is participation by Justice Thomas in cases where his wife has staked out a very public position or been even more directly involved -- but this is not as neat and clean a question as some in the media would see it. In a lower court, if there are grounds for Judge Smith to recuse herself, Judge Jones can be called upon to take over. Often Judge Jones is right down the hall.

But justices of our highest courts have generally, and traditionally, taken the position that they are required to decide the cases before them; there is no one that can tap in for a particular case. This does not mean that individual justices haven't recused themselves in some cases. Justice Kagan recused herself from a number of cases that she had handled as U.S. Solicitor General, prior to her appointment to the Supreme Court. Other justices have taken themselves off of cases, too.

But, as George Washington University Law Professor Jonathan Turley points out in two recent articles, "No, Justice Thomas Did Not Commit an Impeachable Offense" (March 27) and "Justice Thomas Faces Calls for Investigation and Sweeping Recusals" (March 28), this has never been required of Supreme Court justices. The Suprme Court has long (long here meaning even before Trump) taken the view that it is not bound by the Code of Judicial Ethics it has imposed on lower courts. (Again, for the record, Professor Turley wishes the Supreme Court would apply the Code of Judicial Ethics to itself.)

And, also for the record, I hate myself for quoting a law professor on anything. In this one instance it seems appropriate.

Though she did not expressly so state, I think Ms. Levin would be inclined to agree with the proposition that Ginni Thomas's expressed opinions and documented behavior so taint Clarence Thomas that anything he says or does is irrevocably suspect. For example, since Ginni Thomas thinks (or at least thought) that the 2020 election was "stolen" from Trump, Clarence Thomas must think so, too. The sins of one spouse renders the other unfit to serve.

What, I wonder, would Ms. Levin make of Anne M. Burke?

Anne M. Burke is the Chief Justice of the Illinois Supreme Court. In addition to her distinguished career on the bench, Burke was one of the founders of the Special Olympics. She became Interim Chair of the first National Review Board commissioned by the United States Council of Catholic Bishops to address, and root out, the abuse of minors by Catholic clergy.

On the other hand, she is married to Chicago Ald. Ed Burke. Ed Burke has been under federal indictment since 2019. The indictment has to do with how he allegedly got business for his law firm -- which specialized in seeking reductions of county property taxes -- but, before his indictment, very few people were elected to the bench in Cook County without his approval. The longtime Committeeman of Chicago's 14th Ward, Burke chaired the Cook County Democratic Party's judicial slatemaking committee. Put it this way: Chief Justice Burke would not have been elected without her husband's support.

Was she, too, irrevocably tainted by her husband's alleged criminal misconduct?

Here is one very important distinction: On March 24, the Illinois Supreme Court handed down an opinion in the case of Sigcho-Lopez v. The Illinois State Board of Elections, 2022 IL 127253. In this case a Chicago alderman challenged his predecessor's use of campaign funds to pay legal bills related to the predecessor's federal indictment. (After being cornered by the Feds, the former alderman, then still in office, agreed to wear a wire so that the Feds could go after, inter alia, Ed Burke. If the case against Mr. Burke ever gets to trial, this former alderman's testimony -- and recordings -- will be key evidence for the prosecution.)

And, no surprise here, Ald. Burke is paying at least some of his enormous legal bills from his very substantial campaign funds. Of course they are substantial (were you paying attention?): Ald. Burke had an enormous say in who got to serve on the local bench. Oh, and his City Council Finance committee determined what claims against the City got paid, and for how much. And there was the property tax reduction work he did on the side, too.... I haven't looked lately to be certain, but I'd be willing to bet that there's no longer much of anything coming into his campaign funds these days. But there was so much already there.

In its unanimous opinion, not quite a week ago, the Illinois Supreme Court agreed that the practice of paying a politician's criminal defense fees from that politician's campaign fund is not prohibited by statute.

But... here's the distinction... Chief Justice Burke "took no part" in the decision. And, rather than leave her off on the island by herself, her two colleagues from Cook County likewise did not participate. (That was only possible because the four other justices were in agreement on how to dispose of the case; the Illinois Supreme Court can not decide a case without four votes for or against.)

On the other hand, if Clarence Thomas had recused himself from the text messages ruling would Ms. Levin have been mollified?

Which brings us, at last, to Doris Kearns Goodwin, the eminent historian. I'm just now reading her 2013 book, The Bully Pulpit, which is subtitled "Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism." Kearns presents Edith Carow Roosevelt and Nellie Taft as vital to the careers of their respective husbands. Kearns makes the case that, though their quite different wives provided different things, TR and Taft could not have achieved what they did without their spouses.

In the Bad Old Days, a woman could only succeed in public life indirectly, through her husband. Kearns was more favorably inclined to Mary Todd Lincoln in her book Team of Rivals: The Political Genius of Abraham Lincoln than was Lincoln's first biographer (and last law partner) Billy Herndon in his. Herndon didn't like Mary Todd Lincoln one little bit (in fairness, she didn't like him either). But both Kearns and Herndon would agree on this much: Without Mary, Lincoln would probably never have become President.

A woman now can look forward to an independent career, but that same commonality of interests that attracts a man and woman in the first place will often lead to at least some overlap in careers for married couples. Hopefully each would be a positive influence and support for the other -- but when one spouse becomes controversial, or even toxic, must the other be damaged?

The answer should be "no" -- at the very least it certainly should not be automatically crippling to one's career that one's spouse stumbles -- or even is "batshit crazy."

But I also know that this is not how the world works.

My wife teaches in the local Catholic school. Were I to suddenly assert a position at odds with Catholic doctrine, my wife's job might be in jeopardy. Probably would be. Even with an anonymous blog, I was very cautious about criticizing our former pastor (as I did here, here, here, and (later) here). So the problem of one spouse potentially damaging another's career is not theoretical to me. It is very, very real.

I can sympathize with both Justice Thomas and Chief Justice Burke. Both face howling mobs. Very little overlap between their mobs, I should think, but mobs just the same. And I suspect that no member of either mob would be moved by my plea to judge each individual on his or her respective merits, regardless of their spouses' missteps, actual or alleged. But perhaps you, Dear Reader, may be persuaded. One by one, bit by bit, perhaps we can build up a majority on this one small point. Leave it to history -- to Professor Kearns and her successors -- to evaluate how tangled were the strands in these and other cases.

Thursday, March 24, 2022

Judge Ketanji Brown Jackson gets a supreme opportunity

I admit, I have not watched any of the confirmation hearings for Judge Ketanji Brown Jackson.

It's not bitterness... I hope... although even I am beginning to suspect that neither this White House (nor any other) is ever going to call me. Why, I no longer even sit by my phone.

No, the real reason I'm not watching is that I am increasingly intolerant of stupid people, the most stupid of which seem to wind up as United States Senators. And I'm not just talking about the Republicans -- who are feigning suspicion -- now -- that Judge Jackson (who they just confirmed to succeed Atty. Gen. Merrick Garland on the U.S. Court of Appeals for the D.C. Circuit) is a closet Communist, or anarchist, or whatever. I cheerfully include the Democrats, who fawn over Judge Jackson, who strew rose petals in her path, who wish only to touch the hem of her garment and so achieve enlightenment.

Not that the hearings for Amy Coney Barrett or Brett Kavanaugh or Neil Gorsuch were any better. It's just that the Fawners now were the Feigners then and the Feigners now were Fawners. It's all theatrics -- and bad theatrics at that. It's garbage. I am so sorry that Supreme Court nominees are required to endure this nonsense.

Let's get this out of the way immediately:Judge Ketanji Brown Jackson is not the single most-qualified person who could have been picked to sit on the Supreme Court. There is no one such person. There are, instead, a great many. She is one of these.

This is a big country. We have a great many lawyers -- roughly 90,000 in my home state of Illinois alone. Surely more than half of these would be in waaaaaaay over their heads if they were nominated to the Supreme Court. But would 10% be out of their depth? Would only 1% of Illinois lawyers be capable of rendering useful service on the United States Supreme Court if given the opportunity? That's still 900 lawyers. And that's just Illinois.

Judge Ketanji Brown Jackson is one of probably thousands of lawyers across this country who would acquit themselves honorably if asked to serve on the Supreme Court. But thousands were not asked. Judge Jackson was. By all credible accounts she is more than qualified. And she is in the right place at the right time. Good for her!

On the other hand... I don't know if you noticed... but Judge Jackson is yet another former Supreme Court clerk (she clerked for Justice Stephen Breyer, whose seat she will soon take on the Court) who is getting a shot at sitting on the nation's highest court and hiring clerks of her own. She is yet another Ivy Leaguer (two degrees from Harvard in her case) who will join a court composed almost exclusively of Ivy Leaguers and former Supreme Court clerks.

Don't believe me? Let's look at the record:
  • Chief Justice John Roberts -- Harvard undergrad, Harvard Law School -- clerked for Justice William Rehnquist;
  • Justice Clarence Thomas -- Yale Law School -- did not clerk for a Supreme Court justice;
  • Justice Stephen Breyer -- Harvard Law School (Oxford undergrad) -- clerked for Justice Arthur Goldberg;
  • Justice Samuel Alito -- Yale Law School (Princeton undergrad) -- did not clerk for a Supreme Court justice, though he interviewed with Justice Byron White after clerking for 3rd Circuit Judge Leonard Garth;
  • Justice Sonia Sotomayor -- Yale Law School (Princeton undergrad) -- did not clerk for a Supreme Court justice;
  • Justice Elena Kagan -- Harvard Law School (where she was later Dean) (undergrad at Princeton and Oxford) -- clerked for Justice Thurgood Marshall;
  • Justice Neil Gorsuch -- Harvard Law School (undergrad at Columbia, PhD from Oxford) -- clerked for both Justices Byron White and Anthony Kennedy;
  • Justice Brett Kavanaugh -- Yale undergrad, Yale Law School -- clerked for Justice Anthony Kennedy;
  • Justice Amy Coney Barrett -- Notre Dame Law School (not an Ivy League school, although Domers have a hard time accepting that) -- clerked for Justice Antonin Scalia.
That's diversity?

Only if diversity means Harvard or Yale. Put somebody on from DePaul night school or even any state school and get back to me.

And, speaking of states: With the exception of Justice Kagan, every single current justice of the United States Supreme Court comes to that bench from a Federal Court of Appeals. Judge Jackson fits the pattern. No state high court justice need apply? Holy Cardozo, Batman!

But... it is true that Judge Jackson will bring something to the nation's highest court that her colleagues lack. That they don't have and never will have, namely...

(wait for it)

... actual courtroom experience in a courtroom where she was not presiding.

(You thought I was going for something else, didn't you?)

Actually, Justice Sotomayor did some courtroom work, too.

But most of them... no.

Some of Judge Jackson's new colleagues did brief stints in big firms or in high level government positions and some of them got to argue in court. Justice Kagan was Solicitor General of the United States. Former Supreme Court law clerks are in great demand as counsel in those vanishingly few cases that make it to the docket of the nation's highest court.

But Judge Jackson has faced a jury on a client's behalf. That's a different perspective -- a diverse perspective -- that she can bring to the Supreme Court.

As for the rest of it... well, I'm sure President Biden meant well... but I don't think he did Judge Jackson any favors in publicly announcing that he would limit his search for Justice Breyer's replacement to Black women. Again, Judge Jackson is one of many, many persons (a great many of whom are also Black women) who are well-equipped to serve honorably and usefully on the Supreme Court.

The important thing is that Judge Jackson has been given the opportunity. Not that she cares, but I congratulate her, and wish only the best for her. I hope she will do great things.