Judicial Notice (03.27.22): Who's Afraid Of Virginia Thomas?

The Jackson confirmation hearings, a major marijuana merger, and other legal news from the week that was.

‘Was sending those texts a bad idea?’ (Photo of Justice Clarence and Ginni Thomas by Drew Angerer via Getty Images.)

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can subscribe by clicking on the button below.

Like many of you, I spent a good part of last week watching the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson (D.C. Cir.). But I did manage to leave the house for a few gym visits and a speaking engagement, and I must say that it’s a pleasure to address audiences in person once again.

I made a few media appearances, speaking with A.R. Hoffman of the New York Sun about free-speech issues and with Nina Golgowski of the Huffington Post about long Covid. And I spent a lot of time playing the card game Set with Harlan and Zach. If you’re looking for something fun and educational to do with your kid, check it out.

Now, on to the news.

Lawyers of the Week: Senators Josh Hawley, Lindsey Graham, Ted Cruz, and Tom Cotton.

Although their roles as members of the Senate Judiciary Committee are political rather than legal, Senators Josh Hawley (R-Mo.), Lindsey Graham (R-S.C.), Ted Cruz (R-Tex.), and Tom Cotton (R-Ark.) got to play lawyers on TV at the Jackson confirmation hearings. And their performances won’t help dispel the notion that you don’t want Harvard and Yale Law grads as your advocates in the courtroom. (Senators Cruz and Cotton are HLS grads, Senator Hawley is a YLS grad, and Senator Graham is a University of South Carolina School of Law grad.)

These four senators spent much of their time trying to paint Judge Jackson as soft on child-pornography defendants at sentencing. In terms of substance, I don’t have much to add to what former federal prosecutor Andrew McCarthy wrote at the conservative National Review: “The allegation appears meritless to the point of demagoguery.” In terms of style, several Republican senators asked about Judge Jackson’s sentences in child-pornography cases, but these four went about their work in particularly obnoxious fashion: not letting Judge Jackson answer, cutting her off when she did, raising their voices, going over their allotted time, and engaging in theatrics like storming out of the hearing.

If their goal was to create enough doubt about Judge Jackson so as to peel off a few Senate votes, I don’t think they succeeded; Senator Joe Manchin (D-W. Va.), a key swing vote, has already announced that he’ll support the nominee. But if their goal was to fuel baseless conspiracy theories like QAnon, perhaps with an eye to exciting the Republican base ahead of the midterm elections, maybe they fared better.¹

Judge of the Week: Justice Clarence Thomas.

Inspired by the Edward Albee play, Who's Afraid of Virginia Woolf?, the title of this post asks, “Who’s afraid of Virginia Thomas?” Answer: me, for one, after the Washington Post and CBS News reported on text messages showing that Virginia “Ginni” Thomas, wife of Justice Clarence Thomas, repeatedly urged former White House Chief of Staff Mark Meadows to pursue efforts to overturn the 2020 election so that his boss, former president Donald Trump, could remain in office. I find Ginni Thomas’s actions to be absolutely appalling.

Although she’s a lawyer by training (Creighton Law ‘83), Ginni Thomas is a conservative political activist, and she has been one for many years now. I’m not of the view that she was required to give up her own career simply because her husband became a justice. Forcing high-powered women like Ginni to sacrifice their careers to the careers of their husbands would not only be unfair, but would also set back broader efforts to improve gender diversity in law and other fields. I also don’t support the calls for Justice Thomas to be impeached or to resign, which strike me as extreme.

But I also don’t think it’s too much to ask Justice Thomas to recuse in cases related to the 2020 presidential election and its aftermath. Even though the justices aren’t subject to the code of judicial ethics applicable to lower-court judges, they are subject to 28 U.S.C. § 455, which provides that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Even if you accept Ginni’s claim that the Thomases keep their careers entirely separate, the reporting about her active involvement in “Stop the Steal” efforts has now created at least an appearance of a conflict of interest (which didn’t exist at the time that Justice Thomas participated in earlier election-related cases). I therefore agree with the many legal scholars and ethics experts who have concluded because of this appearance of a conflict, a reasonable observer might question his impartiality in cases related to the 2020 presidential election, and he should therefore recuse.

I would also note that Ginni Thomas just turned 65, a nice age for retiring. If she supports her husband’s work on the bench, which I suspect she does, Ginni should retire from politics, allowing observers of the Court to focus on her husband’s (often powerful) judicial opinions—not the (rather extreme) political opinions of his wife.

In other news, Justice Thomas was discharged on Friday from Sibley Memorial Hospital, where he spent almost a week receiving treatment, including intravenous antibiotics, for flu-like symptoms (but not Covid-19, per SCOTUS spokesperson Patricia McCabe). I’m glad to hear Justice Thomas is out of the hospital, and I wish him a swift and strong recovery.

In nominations news, congratulations to Judge Alison Nathan (S.D.N.Y.), confirmed to the Second Circuit by a vote of 49-47 (with Senators Susan Collins of Maine, Lindsey Graham of South Carolina, and John Kennedy of Louisiana crossing the aisle to support her). Congrats also to the new district-court appointees who were confirmed this week: Judges Victoria Calvert (N.D. Ga.), John Chun (W.D. Wash.), Hector Gonzalez (E.D.N.Y.), Ruth Bermudez Montenegro (C.D. Cal.), Julie Rubin (D. Md.), Cristina Silva (D. Nev.), and Anne Rachel Traum (D. Nev.).