In recent months, judicial recusal standards have received a lot of national attention.

Justice Clarence Thomas has been at the center of the controversy, having consistently refused to recuse himself from cases involving the production of White House records from Jan. 6 documents retrieved by the government from Mar-a-Lago – and other cases surrounding the events of that day and the 2020 election. His refusal has courted controversy as his wife, Ginni Thomas, appears to have played a role in seeking to overturn the election results. Everyone from the nation’s top legal scholars to leading politicians has weighed in on whether the federal recusal statute or codes of judicial conduct require disqualification. Most reach similar conclusions: that recusal is required.

But while most people have focused on the law of recusal, few have discussed the larger issue at hand: Justice Thomas is the one who decides whether Justice Thomas is biased.

In fact, he has the final say on whether his participation in any given case creates an unreasonable appearance of bias. And whatever one thinks about whether recusal is required in these circumstances, most people agree that it should be someone other than Justice Thomas making that call.

I have previously argued, and continue to believe, that the American recusal procedure violates core constitutional principles. By permitting the very judge whose impartiality is questioned to decide for himself whether recusal is warranted runs contrary to due process and the notion that no person should serve as judge in his own case. This guarantee is embedded in the Fourteenth Amendment’s due process clause, which ensures that our legal disputes are resolved by impartial jurists.

The Supreme Court has frequently referred to judicial impartiality as the bedrock of the American legal system. Unquestionably, due process requires a fair and impartial tribunal for all decisions made by judges during litigation, including the recusal decision. And yet, throughout the United States, including in Maine, Supreme Court justices rule on their own disqualification motions. For example, right here in Maine, there have been calls for Justice Connors to recuse herself from an important foreclosure case because of her prior work. And just as was the case with Justice Thomas, it will be up to Justice Connors to rule on her own recusal.

The entire adversarial system depends on the presence of a neutral referee to resolve disputes. And in partisan battles like those surrounding the 2020 election and the Jan. 6 insurrection, the presence of an impartial arbiter is even more critical. A recusal procedure that does not ensure litigants a trial in front of an impartial judge and permits the participation of a judge with an interest in the outcome of a dispute is unconstitutional and violative of due process.

Justice Thomas’s case provides a perfect example of this violation in action. Reports indicate Ginni Thomas was one of the leading figures seeking to invalidate the 2020 election results. Other allegations suggest that some of Ginni Thomas’s e-mails may be among the records sought in litigation, giving her a direct interest in the outcome of the case. The outcome of the litigation surrounding Jan. 6 may not only tarnish her reputation, but potentially expose her to liability.

If a neutral third party – for example, other judges or justices – were permitted to review the record and make the determination of whether recusal is required, they may reach the same decision as Justice Thomas. But taking the recusal decision out of the hands of the very judge whose impartiality is questioned will help ensure that the recusal decision is made by an impartial jurist, and may help restore public confidence in the Supreme Court and judicial system.

— Special to the Press Herald

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