Political battle lines form on Clarence Thomas 

The simmering debate over Justice Clarence Thomas’s judicial ethics is shaping up as a midterm election issue, with lawmakers on both sides setting up their positions.  

Thomas is facing growing calls from Democrats to recuse himself from any Supreme Court cases that are tied to the Jan. 6 riot at the Capitol since the revelation that his wife, Ginni Thomas, sought to overturn former President Trump’s electoral defeat.  

Some Democrats, such as Rep. Alexandria Ocasio-Cortez (D-N.Y.), have called for Thomas to resign or face impeachment. 

Republicans have generally rallied around Thomas, arguing that Democrats are seeking to unseat a conservative jurist because they do not like his legal opinions. Thomas is well thought of in GOP circles and he and Ginni Thomas are well-known and respected figures in the conservative movement.  

Both sides are likely to see Thomas as a figure who can be used to raise money and rally voters to the ballot box as Democrats defend slim majorities in the House and Senate, and Republicans look to take over.  

And with abortion politics also hanging over the election, the Supreme Court itself is likely to be a big political issue, especially in the battle for the Senate, which is also considering President Biden’s nomination of Judge Ketanji Brown Jackson to the high court.  

“I do think the implications of [Thomas’s] involvement offers a messaging opportunity for Democrats,” Marcela Mulholland, political director at the progressive policy and polling organization Data for Progress. 

“To the extent the Democrats can make this a story about Republican corruption on the Supreme Court, in Congress, with the former president, being part of their broader effort to strip people of healthcare, of reproductive rights, of other issues that are really popular among the electorate, I think it can benefit Democrats at the ballot box,” she said. 

Ethical scrutiny of Thomas, 73, ramped up in the wake of explosive reports last week about his wife’s texts to former White House chief of staff Mark Meadows.   

The revelations raised fresh questions about the justice’s refusal to step aside from at least 10 cases related to the 2020 election that came before the Supreme Court. Among them was an 8-1 ruling where Thomas was the only justice to side with Trump’s request to block House investigators probing the Jan. 6, 2021, insurrection from obtaining his White House records. 

Ginni Thomas’s texts with Meadows appeared to show her strategizing over how to bypass the will of American voters and install Trump for a second White House term despite his loss to President Biden, an outcome she described as an “obvious fraud” and “the greatest heist of our history.” 

A Supreme Court spokesperson did not respond to a request for comment.

“Clarence Thomas should resign,” Ocasio-Cortez wrote on Twitter on Tuesday. “If not, his failure to disclose income from right-wing organizations, recuse himself from matters involving his wife, and his vote to block the Jan 6th commission from key information must be investigated and could serve as grounds for impeachment.”  

Her message echoed a similar call by fellow progressive House member Rep. Ilhan Omar (D-Minn.), who pressed for Thomas’s impeachment within hours of reports of Ginni Thomas’s text messages with Meadows surfacing last Thursday.  

Mulholland, of Data for Progress, said the Thomases’ entanglement could make an especially potent midterm issue if the 6-3 conservative majority court undermines or overrules Roe v. Wade this summer, as many court watchers expect it will do. 

The court is currently weighing the lawfulness of Mississippi’s 15-week abortion ban, which poses a direct challenge to the 1973 decision in Roe v. Wade that recognized a constitutional right to abortion up to roughly 23 weeks of pregnancy. A decision is likely to be made by late June or early July, and Thomas is expected to cast a vote in favor of Mississippi.  

“If you see a significant thing like Roe v. Wade falling, that’s the kind of historical event that really can mobilize turnout, especially among women,” she said. “Democrats can say someone like Clarence Thomas and other conservatives were too busy covering up for the former president and supporting this insurrection instead of doing what they should do, which is protecting your constitutional right to choose what happens to your body.” 

“I do think if we see Roe v. Wade fall this summer,” she continued, “the Supreme Court will play a more central role in the conversation in the midterms than it has probably ever, frankly.” 

The November midterm may offer the only realistic chance Democrats have to respond to what critics say is a years-long pattern of ethical breaches resulting from Clarence Thomas’s nonrecusal. 

In Clarence Thomas’s three decades on the bench, he has never stepped aside from a case due to a real or perceived conflict of interest resulting from his wife’s political activities, according to an analysis by the progressive court reform advocacy group Take Back the Court. 

Supreme Court justices — unlike judges on lower federal courts — are not bound by a code of conduct and are permitted to decide for themselves whether recusal is appropriate. 

To get a bill on a code of ethics through the Senate or to force cooperation with a committee investigation, Democrats would need help from Republicans, something GOP senators don’t appear willing to give currently as they look to move past the Clarence Thomas scrutiny.  

“The best opportunity to hold Ginni and Clarence Thomas (and all the Republicans covering up for them) accountable is in November,” Dan Pfeiffer, a former senior adviser to President Obama, wrote in a blog post. “If you are looking for a reason to get fired up and recapture the energy that dominated the Democratic Party from the day Trump won until the day he lost, this is it.” 

But not all political analysts who spoke to The Hill agreed that the debate over Clarence Thomas would mobilize Democratic voters. 

GOP strategist Doug Heye said voter intensity on the issue for judges has only favored Republicans, and he noted that the court overturning Roe could have the effect of energizing GOP voters too. 

“Even if legitimate questions are raised about Ginni Thomas’s actions on January 6 and possible recusals by Justice Thomas, it’s hard to see that as a motivating factor in the battle for Congress when a clear majority of Americans disapprove of Biden and feel the country is heading in the wrong direction,” he said. “The media played up the Texas abortion law nationally as being a motivator in the Virginia gubernatorial race, and it just wasn’t a factor.” 

But less than a week after the explosive reporting on Ginni Thomas emerged, the debate over her husband’s ethical quandary has already begun to seep into electoral politics.  

In one Democratic primary race for an open U.S. House seat in New York, a progressive politician touted her condemnation of Thomas as a way to distinguish herself from the crowded field of candidates vying to replace Rep. Tom Suozzi (D-N.Y.), who is running for governor. 

“It should be obvious that Clarence Thomas should resign or be impeached, and it is unconscionable that only one member of Congress, Representative Ilhan Omar, has called for such,” candidate Melanie D’Arrigo said in a March 26 statement posted on Twitter. 

“When I am elected to Congress, voters can count on me to speak truth to power, no matter what,” she added. “I am not afraid to say that this kind of corruption has no place in our government — and Democrats cannot be afraid either.”