Clarence Thomas' Wife and the Appearance of Bias

Legal experts have been too quick to give Virginia Lamp Thomas a pass for her right-wing activities. The Supreme Court's own decisions make it clear: A perceived bias is just as bad as a real one.


It's been astonishing to read the near-universal agreement among leading legal ethicists and Supreme Court watchers on the view that there is nothing untoward or even problematic about the emergence of Virginia Lamp Thomas -- wife of Justice Clarence Thomas -- as a Tea Party leader, even after Mrs. Thomas publicly denounced the president of the United States as a "tyrant."

Stephen Gillers of New York University School of Law has suggested that questions should arise only if parties who contribute substantial amounts of money to Mrs. Thomas' organization appear before the court. Tom Goldstein, the head of SCOTUSblog, the go-to blog for Supreme Court watchers, offered a kind of feminist defense of Mrs. Thomas and criticized liberals for "giving the impression that a woman can't have her own independent standing."

All of these commentators seem to operate from the same narrow, erroneous framing of the questions surrounding Mrs. Thomas' activities. They focus on her First Amendment rights rather than the due-process 14th Amendment rights of litigants who appear before the court, and they engage the question of conflict as one focused solely on actual judicial bias.

But in interpreting the federal recusal statute, 28 U.S.C. 455, the Supreme Court has recognized that even the appearance of bias may trigger the requirement that a judge recuse himself from hearing a case. When a judge's impartiality "might reasonably be questioned," that judge may disqualify himself from hearing a case. This "appearance" of bias standard is an important one. It's based on the Supreme Court's determination, in its interpretation more than 50 years ago of the Due Process Clause of the 14th Amendment, that "justice must satisfy the appearance of justice."

This constitutes a recognition that legitimate judicial decision making must be undergirded by the confidence of the public that a judge is both fair and impartial. The appropriate guidepost in determining whether recusal is appropriate under this standard is a determination of how a "reasonable person," apprised of the facts, would view the judge's impartiality -- a reasonable person. 

It may well be that judges, law professors and Supreme Court lawyers are somewhat out of touch with how a reasonable person might regard a judge's impartiality. This certainly was the case when Justice Scalia in 2005 issued his scathing and extraordinary 22-page memorandum opinion explaining his decision not to recuse himself from the case filed by the Sierra Club against Vice President Cheney, after the justice's infamous duck-hunting trip with the vice president.

Scalia's opinion supporting his decision not to recuse himself revealed a kind of stunning insularity -- an insider's sense of how things are -- rather than the outsider, "reasonable person" sense of how things may appear. The fact that Scalia and his son flew down to Louisiana on Air Force Two as guests of the vice president was regarded by Justice Scalia as a mere "social courtesy" of no relevance to the issue of recusal.

Many of the same commentators who are now so sanguine about Mrs. Thomas' activities were equally certain that there were no "appearance of bias" problems when the Supreme Court decided Bush v. Gore in 2000, despite the fact that Justice Scalia's son was a partner in the firm representing George W. Bush, that Justice O'Connor had reportedly made comments on election night indicating her disagreement with the recount and, of course, that Mrs. Thomas worked for the Heritage Foundation collecting résumés for what they assumed would be the new Bush administration.

All of these facts potentially gave rise to reasonable arguments supporting recusal. And yet they were dismissed by legal-ethics experts as irrelevant in the weeks prior to the court's final, stunning decision ending the recount.

It's an open secret that the Supreme Court's recusal practice needs reform. Every year, justices recuse themselves from dozens of cases without explanation. In one notable case two years ago, in which survivors of apartheid in South Africa sued multinational corporations for their participation in supporting the apparatus of apartheid, so many justices had to recuse themselves from the case that they lacked a quorum to hear the case. The result left the decision of the 2nd Circuit Court of Appeals intact.