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.
In fact, reasonable people are likely to take a much more unforgiving view than experts may think of the appearance of bias in Mrs. Thomas' ramped-up conservative political activity, given her husband's place on the court. This is especially true because the health care law that has served as the lightning rod -- indeed, the inspiration -- for the Tea Party movement, and as "exhibit A" in their claim that President Obama is engaged in "tyranny," has been challenged in the federal courts and is likely to make its way to the Supreme Court for review. Will Justice Thomas recuse himself from hearing the case? It seems unlikely.
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.
Recusal raises particularly serious issues on the Supreme Court, because unlike on other appellate courts where replacement judges are drawn from the ranks of senior judges and even trial court judges, when a Supreme Court justice recuses himself or herself from a case, there is no other judge who can take that seat. Right now, a bill in Congress would allow retired justices to sit in the places of recused Supreme Court justices.
Given that all of the currently retired justices are less conservative than those currently sitting on the court, there's no incentive for Republicans to support this bill. Except that the current recusal practices on the court have become alarmingly opaque and confused -- a matter that should promote a nonpartisan, comprehensive response. Indeed, the court itself should take the lead in re-examining the full range of its recusal practices, with an eye toward improving transparency and consistency, and a sensible plan for replacing judges who are recused.
Virginia Lamp Thomas is most certainly entitled to her First Amendment rights, including the right to call the president names and to create a conservative political organization. But the American people are entitled to a court that not only is impartial but also inspires confidence because it appears above reproach. As Mrs. Thomas continues to escalate her political activities and rhetoric on matters likely to come before the court, the justices of the court and commentators who study the court's practices should perhaps focus less on the individual free-speech rights of the privileged wife of a Supreme Court justice and more on the collective right of the American public and the litigants who appear before the court, and assure us that our highest court not only is impartial but also looks impartial.
Sherrilyn A. Ifill, who teaches at the University of Maryland, writes about the law for The Root.