Trump is trusting that with Barrett, decisions are sure to land in his favor. Thus, Trump’s declaration: “I think it’s very important that we have nine justices.”
However, it’s not a given that a full court will be in place to decide election-related cases affecting the fates of Trump and Democratic nominee Joe Biden. Under the court’s recusal policy, a strong case can be made that Thomas should take no part in deciding cases that involve Biden.
Decisions on recusal from Supreme Court justices are not subject to review because they sit on the nation’s court of last resort. The Judicial Conference’s Code of Conduct applies only to lower federal courts. Roberts, however, insists that all justices consult the code for their ethical obligations.
The code states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That is the case, the code states, when “the judge has a personal bias or prejudice concerning a party” in the proceedings.
This is where a demand for Thomas’s recusal comes in.
By any measure, Thomas’s confirmation hearing was one of the most acrimonious and polarizing congressional events of the 20th century. Thomas wrote in his memoir “My Grandfather’s Son” that he looks back at the process in “horror and disgust.” Thomas described the hearing in which he responded to Anita Hill’s sexual harassment accusations as “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”
The chairman of that committee was Biden, whom Thomas characterizes in his book as a liar.
“A few days before I faced the Judiciary Committee, Joseph Biden invited Virginia [Thomas’s wife] and me to tour the Caucus Room in the Russell Senate Office Building where the hearings would take place,” Thomas wrote. He said Biden was reassuring, stressing that the hearings weren’t meant to be an ordeal. “He said that since I’d be nervous at first, he would start the questioning with a few ‘softballs’ that would help me relax and do my best, assuring me that he had no tricks up his sleeve.”
On the morning of the hearing, wrote Thomas, “Senator Biden was the first questioner. Instead of the softball questions he’d promised to ask, he threw a beanball straight at my head, quoting from a speech that I’d given four years earlier at the Pacific Legal Foundation and challenging me to defend what I’d said.”
At the break in the proceedings, young lawyers who had helped Thomas prepare for the hearing looked at the text of the speech quoted by Biden. “The point I’d been making [in the speech] was the opposite of the one that Senator Biden claimed I had made.” Thomas later referred to a favorite recording, “Smiling Faces Sometimes,” which warns against trusting people who pretend they are your friend while secretly planning to do you wrong. “Now I knew I’d met one of them: Senator Biden’s smooth insincere promises that he would treat me fairly were nothing but talk.”
Before the committee vote, Thomas said he spoke to Biden on the phone.
“Biden came on the line. I held the receiver sideways so that Virginia could hear him speak as we stood together in the kitchen,” Thomas wrote. Biden explained why he couldn’t vote for him, after which Thomas said, “That’s fine. It’s doesn’t matter to me whether I’m confirmed or not. But I entered this process with a good name, and I want to have it at the end.”
Thomas wrote that Biden replied, “Judge, I know you don’t believe me, but if any of these last two matters come up [referring to Anita Hill’s allegations as well as a leaked draft opinion he had written as an appellate judge that had drawn criticism], I will be your biggest defender.”
“He was right about one thing,” Thomas wrote. “I didn’t believe him. Neither did Virginia. As he reassured me of his goodwill, she grabbed a spoon from the silverware drawer, opened her mouth wide, stuck out her tongue as far as she could, and pretended to gag herself.”
Thomas, in a recent documentary, condemned the hearings, charging that they they were designed to “get rid of me” because they viewed him the “wrong” African American for the high court.
Given these statements, does anyone really believe that Thomas can impartially hear a case impacting Biden and come to an opinion based on the law and facts?
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