- In today’s Washington Post, BJI Executive Director Judge Jeremy Fogel commented on how Justice Thomas might analyze recusal standards in cases involving former President Trump.
From the article, three excerpts:
—Retired federal judge Jeremy Fogel said Thomas doesn’t necessarily need to recuse if the Supreme Court plans to approach Thursday’s case through the lens of whether Trump’s ballot status should be up to Congress — instead of debating whether the Jan. 6 attack was an insurrection.
That’s because the justices will be asking technical, procedural questions about the very first court hearing on the matter in Denver. Fogel said the justices could ask questions such as, “What is the power of the states [with] respect [to] this particular constitutional amendment?” They could also ask “Was the hearing conducted fairly?” and “Was it an adequate process of fact-finding?”
For that reason, “the specific issues that [they’d be] deciding in the insurrection case [would] not implicate the interests of [Thomas] or anyone to whom he’s close,” said Fogel.
—Fogel said Thomas should also weigh how his decision to hear the case will affect the public’s perception of the court and its eventual ruling.
Ginni Thomas’s involvement “raises the question of whether he can fairly assess the gravity of the conduct that President Trump is accused of,” Fogel said. “Even if it’s not the precise issue that the court is deciding, it [may create] the appearance that he is going to try to find a way to rule in President Trump’s favor because of his wife’s affiliations and advocacy.”
—Thomas has so far sat out one Jan. 6-related case: An appeal by Eastman related to his efforts to help Trump block certification of the 2020 election. Thomas didn’t list a reason for his recusal, but it may be because Eastman is the justice’s former law clerk and friend.
Fogel called Thomas’s decision to recuse himself from the Eastman case a “no brainer.”
But the court did not indicate when it took the Colorado ballot case that Thomas, or any justice, would sit out — which means it is almost certain that all will participate.
The result, according to Fogel: “People who are already wary or critical are going to be more wary and more critical,” he said.
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