Right Wing Judges Are Threatening Democracy

Judges are supposed to recuse themselves from cases where they are biased and cannot rule based on the facts and applicable law.  Increasingly, we are witnessing judges at both the state and federal level flouting this long standing standard and handing down ruling based on their own prejudices, bias, and extreme religious views.  The Supreme Court Dobbs ruling overturning Roe v. Wade is a prime example of a tortured ruling that ultimately was based on nothing but the right wing majority of the justices who put personal religious belief all else.  Then there is the ongoing corruption in the form of Clarence Thomas whose conduct and refusal to recuse himself from cases - even those where his wife has been implicated - makes a mockery of ethical rules and judicial impartiality. In numerous cases ranging from abortion to voting rights, right wing judges are inflicting their personal bias and allegiances above the rule of law.  A column in the Washington Post looks at the damage right wing ideologues on the nation[s court are doing to the rule of law and democracy itself.   Here are highlights:

The mere presence of Justice Clarence Thomas — never mind his chutzpah in asking the first question — at the oral argument in four-times indicted former president Donald Trump’s appeal of the Colorado Supreme Court’s ruling disqualifying him from the ballot represented a new low for the Supreme Court. It constituted one more assault on the rule of law and the credibility of the court, already at low ebb in public support. After all, Thomas’s wife worked to overturn the 2020 election (sending multiple messages to then-White House Chief of Staff Mark Meadows, egging on fake electors, using her relationships with former Thomas clerks).

Thomas declined to recuse himself in the matter involving release of Meadows’s text messages relating to the Jan. 6, 2021, coup attempt. He was the sole dissent in the ruling ordering that the messages be released. At the time, constitutional scholar Leah Litman told me, “The court protects its reputation in large part through good will, and by acting like a respectable institution. Ginni Thomas is burning through that good will at a rapid pace — making the court and its justices appear corrupt, as if they are or could be casting votes in cases based on the interest or possible involvement of their spouse.”

And that brings us to Thursday’s argument about whether the attempted coup was an “insurrection.” When Trump’s counsel conceded that it was a “criminal” activity, one could barely believe that Thomas was allowed to sit there. Imagine if this were a robbery case and the judge’s wife had urged on the robbers. No one with a shred of respect for the judicial system would countenance that judge hearing such as case.

Rep. Dan Goldman (D-N.Y.), a former prosecutor, weighed in on Thursday: “Justice Thomas’s participation in Trump’s ballot case is a shocking and intentional violation of his ethical obligations. Clarence Thomas is not above the law.” He added, “This is a true crisis at the Court.” And, of course, this makes a total mockery of the announced “ethics” guidelines.

Thomas is hardly the only right-wing judge fouling the judicial nest. Even before her latest ruling in the matter concerning Trump’s alleged snatching of highly sensitive documents and obstructing the investigation thereof, U.S. District Judge Aileen M. Cannon’s impartiality was sufficiently in doubt as to warrant recusal. Her ruling appointing a special master and preventing the Justice Department from continuing its national security investigation was widely vilified and reversed unanimously by the infamously conservative U.S. Court of Appeals for the 11th Circuit.

Since then, the argument for recusal has grown only stronger. Last month, constitutional gurus Dennis Aftergut and Laurence H. Tribe wrote that Cannon’s ruling rejecting “special counsel Jack Smith’s entirely standard request that she order Trump to state whether he intends to rely on an ‘advice of counsel’ defense” was yet another sign the judge was in Trump’s “pocket.” That followed months in which she has foot-dragged, delayed and made irrelevant demands of the prosecutors.

Then came her latest affront: Granting Trump’s motion to unseal classified documents. As the special counsel noted, this would put the identities of government witnesses at risk, reveal “signals intelligence” and identify an FBI code name. This is a bridge too far. Smith filed a motion for Canon to reconsider, citing the threats to witnesses, her “clear error” and her disregard for 11th Circuit precedent.

Multiple legal experts registered their alarm. But there is a remedy if Cannon does not reverse herself. As the Lawfare blog explained, “Section 7 [of the Classified Information Procedures Act] allows the government — and only the government — to file a fast-track interlocutory appeal of any district court ruling that would require the disclosure of classified information or penalize the government for failing to reveal such information.” Smith could exercise that right, combine it with a motion to recuse and clearly articulate the argument that in this case Cannon’s bias not only makes it impossible for the government to get a fair trial but puts national security at risk.

Whatever the timing, Smith should not let these unprecedented and dangerous rulings slide. Though the special counsel might be concerned about aggravating Cannon, she could hardly be more unfair than she has already been. Having harshly rebuked her in the civil case, the 11th Circuit might be more prepared than usual to intervene.

In short, both Thomas and Cannon pose a troublesome question: To what degree do we allow ethically challenged hacks on the bench to hijack our judicial system? If we do nothing in the face of the Supreme Court’s outlandish violations of ethical restraints or when lower-court judges become partisan flunkies, Trump’s sabotage of the rule of law will succeed. And let’s remember: In the event Trump gets a second term, the federal courts will be littered with the likes of Thomas and Cannon. Now, that’s a reason to keep him far from the Oval Office.