The ABA Journal recently had an interesting story by Debra Cassens Weiss. The story centers on Supreme Court Justice Clarence Thomas’s wife, Ginni Thomas. Ms. Thomas has been a long time political activist. At one point in her career she worked for Republican Congressman Dick Armey. The story Ms. Cassens Weiss wrote, in part, is:

Justice Clarence Thomas’ wife, Virginia “Ginni” Thomas, reportedly sent an email to a conservative group email list that asked how she could organize activists to support President Donald J. Trump.

The Feb. 13 email and a recent article by Ginni Thomas could raise recusal issues for justice, the Daily Beast reports. The publication obtained a copy of the email but did not reveal the source.

The email sought a way to counter grassroots efforts by a group called Daily Action, which opposes the Trump agenda, including the president’s temporary travel ban. In a recent article for the Daily Caller, Ginni Thomas commented on an interview with Christian Adams, the lawyer-author of Injustice: Exposing the Racial Agenda of the Obama Justice Department. Adams thinks acting Attorney General Sally Yates should have been dismissed even before she refused to defend the travel ban.

Thomas sounded a warning in her Daily Caller article. “Today, a subversive alt-government is emerging, in line with the alt-left’s growing resistance to use any means necessary to slow, stop and obstruct Trump’s agenda, from inside the government, to make America ungovernable,” she wrote.

Thomas sounded a similar theme in her email to the group email list.

“What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left’s resistance efforts who are trying to make America ungovernable?” Thomas wrote. She then referred to Daily Action and its popularity on Facebook.

“But there are some grassroots activists, who seem beyond the Republican party or the conservative movement, who wish to join the fray on social media for Trump and link shields and build momentum,” she wrote. “I met with a house load of them yesterday and we want a daily textable tool to start. … Suggestions?”

The Daily Caller spoke with ethics experts who said the timing of Thomas’ email suggests she was trying to organize support for Trump’s executive orders, including the temporary ban on entry into the United States by refugees and immigrants from seven majority-Muslim nations.

That kind of conduct by a justice’s spouse could spur “a nonfrivolous disqualification motion” by travel ban challengers, should the issue reach the U.S. Supreme Court, according to Georgetown University Law Center professor Heidi Li Feldman.”

So, what does a judge need to do when their spouse has their own political career? It may be reasonable to be concerned, but there are famous couples with decidedly different political views, e.g. James Carville & Mary Matalin. We no longer live in an era where husbands could simply tell their wives what job, if any, they could accept. Nor, for that matter, do we live in an era where wives can simply tell their husbands what job, if any, they can accept. So how does the modern-day judge appropriately deal with the political activity of their spouse.

The issue of recusal is not just an issue for judges in the United States. Judge Wayne Gorman provided some insight in Canadian thinking about recusal:

In Cabana v. Newfoundland And Labrador, 2014 NLCA 34, Mr. Cabana applied for an interlocutory injunction concerning the development of a hydro-electric power plant at Muskrat Falls in Labrador.  The application was dismissed. Mr. Cabana appealed, arguing that the application judge should have recused herself. The Newfoundland and Labrador Court of Appeal indicated that the “grounds of appeal on which Mr. Cabana submits that the judge was required to recuse herself” included judge’s spouse as a partner in a law firm; legal work for Newfoundland and Labrador Hydro done by the judge prior to her appointment; and political donations made by the judge prior to her appointment…The final issue is disqualification of the judge based on the conduct of the hearing.”

Litigation – Judge’s Husband as Partner in a Law Firm:

The Court of Appeal indicated that Mr. Cabana “is being sued by Alderon Iron Ore Corporation and an individual. They are being represented, not by the judge’s husband, but rather by other lawyers in the firm in which the judge’s husband is a partner. Mr. Cabana says this gives the judge a pecuniary interest arising from her husband’s share of the fees from the Alderon litigation.”

The Court of Appeal concluded, at paragraph 26, that the “fact that the judge’s husband earns money as a partner in the law firm and that a portion of that money comes from litigation undertaken by the firm cannot form the basis for a finding of reasonable apprehension of bias by the judge in this case. The allegation does not pass muster when the Wewaykum test of an informed person, viewing the matter realistically and practically – and having thought the matter through – is applied.”

Legal Work for Hydro:

The Court of Appeal noted that in 2007, the applications judge “represented Newfoundland and Labrador Hydro in hearings before the Public Utilities Board. The hearings related to setting rates for electricity, which the Board regulates. Representing Hydro may be characterized as akin to representing Nalcor, which is a party to this proceeding, because Hydro is a wholly-owned subsidiary of Nalcor.”

The Court of Appeal concluded, at paragraph 38, that this did not form a basis for recusal.  It indicated that “the judge did work for Hydro six years before Mr. Cabana raised the issue of apprehension of bias in this case. The work the judge did had no direct relationship to the issues at play in this case. The judge was not an employee of Hydro, having done the work on a contractual basis, and there was no evidence of an on-going solicitor-client relationship.” 

However, the Court of Appeal also indicated that “it would have been preferable for the judge, at the outset, to disclose these facts, to give the parties an opportunity to consider their positions.”

Political Donations:

The Court of Appeal indicated that Mr. Cabana “sought to put into evidence information concerning political donations the judge made prior to her appointment as a judge.”  The Court of Appeal held that the application judge “correctly refused to allow the evidence. A lawyer is free to engage in political activity and to make donations to political parties. This changes upon appointment as a judge.”