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Friday, March 25, 2022

Some Thoughts on Today's Ginni Thomas Story

1: I'm focusing only on today's story, in which the Times reports that Virginia Thomas sent a series of texts to President Trump's chief of staff, Mark Meadows, urging him to take steps to overturn the results of the 2020 election. I abstract away, for the most part, from her, from any previous coverage, good or bad, and from Justice Thomas himself. 

2: We might view this as a subset of a subset of a general question produced by now-longstanding social and cultural change. The broad change is the rise of two-career spousal couples. The broad subset is two-career professional couples in Washington, D.C., the classic Washington "power couple." It is a well-established and bipartisan phenomenon. The conventional and safe view is that there is nothing wrong with it as such, and the further conventional and safe view is to raise serious concerns about it in particular cases, choosing one's focus and the degree of one's concern based upon one's political allegiances. The subset of a subset involves professional couples in which one partner is a judge. I will focus quite arbitrarily on high-level federal judges, although it seems to me that any potential concerns might well be graver in the case of federal or state trial judges.

3: Part of the reason for the contemporary conventional and safe view, apart from elite class prerogatives, is that there is obviously a significant gendered or gender-related component here. As a historical matter, the raising of concerns necessarily focused on working professional women in marriages or relationships, as greater numbers of them entered the professional workplace, including the political workplace. Whether the concerns were based on some kind of explicit bias or not, the attention and the burden surely fell disproportionately on women, just as they were fighting to emerge from legal and cultural barriers to professional advancement. Any treatment of the general question should fully acknowledge that fact. 

4: Acknowledgment is not dispositive, however. Whatever one might say about other power couples--Senator/cabinet secretary, House member/lobbyist, elected officeholder/agency chair, and so on--it seems to me a sound policy or norm that spouses of high-level judges, whatever the gender of either member of the relationship, should not be involved or active in politics at all. That certainly includes high-level partisan activity, and may extend more broadly to other work, such as high-level governmental work. Again with all due acknowledgment, that policy should apply whether or not such a policy stymies or stifles that partner's career, aspirations, calling, or passions. And it should apply whether the particular example is, in the eyes of the beholder, particularly gross in nature, or whether it is more conventional and commonly accepted by the professional class--say, the difference between texting the chief of staff and invoking the "Kraken" on the one hand, and being a conventional interest-group lobbyist, or attendant at various DC weekly meetings of public and private political forces, or professional apparatchik who works on increasing the flow of money to parties or mainstream candidates, on the other. 

5: We need not make it a personal thing. Indeed, there are good reasons not to, since our tendency to be guided by our own partisan identifications may lead us to condemn some such associations and excuse others, on the basis that Judge X is incapable of ruling impersonally but Judge Y would never dream of being influenced by his or her spouse's activities. The question has very little to do with the person of the judge and his or her capacities. Nor would I necessarily frame it in terms of recusal and the appearance of partiality. I think of it in terms of the judicial office. I've written (following some of the historical material in Philip Hamburger's book on law and judicial duty) that we should think of office much less in terms of power and much more in terms of duty and obligation. The power attaching to an office is an incident of that office, and dependent on and inseparable from the duties and obligations of that office. To be sure, only the officeholder and oath-taker truly occupies and personifies the office and takes on its burdens. But I worry that such a relationship, in which the judge's spouse is engaged in highly partisan work, publicly or privately, harms the honor and integrity of the judicial office. This is a somewhat old-fashioned and perhaps outdated or archaic view. But that's not the only reason to favor it. To the extent that our greatest crisis in American civic life is, as I believe it is, an institutional crisis--not just failures of and within institutions, or even a public loss of trust in institutions, but also a failure to take institutions seriously as such--the kind of conduct I'm talking about here is deeply corrosive of both institutions and trust in those institutions, and perhaps also corrosive even of the office-holder's view of his or her own institution.

6: The judge in such a situation must urge his or her spouse to cease engaging in that activity. Any person in a relationship knows that for all sorts of reasons, there are things we could not imagine asking of a partner and would not ask of them. We know too that there are things we might be willing to ask but that the partner will roundly reject. Where the judge won't or can't deter the spouse from so acting, he or she should step down from the bench. 

7: The policy should apply without respect to the importance of that judge, the importance of their holding the position in their own or others' views (say, the judge is on what the observer thinks is the "right" side of a 5-4 division on the court, with a president and Senate of the opposite party waiting eagerly to appoint a replacement), and, again, the gender of either partner in the relationship. To the extent that our concern with the gendered nature of the general issue, or our own gendered assumptions, begin with a preconception that the judge in any imagined case is a man and the person asked to sacrifice their own career aspirations is a woman, we should remember that the male partner is not locked into the judicial office. A judge, like any other partner in a relationship, is always free to prefer and elevate his or her spouse's interests and desires, including professional and political desires, over his or her own, and thus to step down from judicial office if the spouse is unwilling to give up politics. Judges ought to leave office more often in any event. Believing that the judge's spouse's career or desires come first is an excellent reason to step down. It is, in large measure, the fact that judges seem eager to occupy their offices on a "till death do us part" basis that gives rise to more frequent occasions in which a judge stubbornly refuses to step down "under fire."  

8: There is nothing dishonorable about stepping down under such circumstances. Quite the contrary: it shows greater honor to the judicial office, and to the person stepping down from it, than remaining does. Rather than view such an outcome as a scandal or embarrassment, we ought to view it as the judge doing the right thing. Nor is there anything scandalous or embarrassing about a spouse wanting to engage in political activity or follow some other calling that is, in my view, inconsistent with the spouse's judicial office. Lots of people pursue such callings. The question is only whether that state of affairs can exist or persist while the partner occupies a political office. Nor, finally, would I be inclined to draw conclusions about the views of the judge--that, say, the spouse's political activities "confirm" one's views that the judge is political, and so on. Spouses, professional or otherwise, can and do hold different views and preferences, in kind and degree. (My spouse--a former officeholder, incidentally--is a person of good sense and thus usually disagrees with me.) The partisan surround around such issues, the likelihood of gloating on one side or defensiveness and defiance on the other, are good for fundraising and commentators but bad for establishing a system in which we treat it as legitimate that two partners in a relationship may wish to pursue different careers, one of which is partisan and one of which is not, but treat the honorable thing to do in such circumstances as either having one spouse give up those political activities or having one spouse surrender a high judicial office. We ought to facilitate that honorable choice, not make it more likely that it won't happen.

9: One may worry that such a role creates an incentive to dig up real or questionable stories about judicial spouses and their activities, just as judicial confirmation hearings incentivize senators and interest groups to dig up real or questionable scandals. It's a 6-3 Court, and it may not be an accident that the focus here is on Justice Thomas. (Although Ginni Thomas has engaged in such activities for some time.) Plenty of investigative reporters are pretty obviously partisan, choosing their targets of investigation on that basis and ignoring other subjects that deserve equal attention and investigation; and plenty of people who engage in investigation are not journalists at all, but open combatants working for interest groups or parties or various other entities within the political-industrial complex. So be it. The general rule I suggest is a good one and the right one for preserving the integrity and honor of the judicial office. And it can't be employed strategically by advocates if the rule is observed in the first place, such that the spouse has already desisted or the judge has already chosen not to continue in judicial office.     

Posted by Paul Horwitz on March 25, 2022 at 12:45 PM in Paul Horwitz | Permalink


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