Lawrence Tribe: Clarence recusing himself " is not discretionary"

[Miles Archer]

Op-Ed: Justice Thomas' refusal to recuse himself is thumbing his nose at the law
Laurence H. Tribe and Dennis Aftergut
Wed, October 26, 2022 at 7:58 PM·4 min read

https://news.yahoo.com/op-ed-justice-thomas-refusal-235810353.html

There’s a sad lesson for the law and the country in Supreme Court Justice Clarence Thomas’ Oct. 24 stay of a federal appeals court’s order that Sen. Lindsey Graham (R-S.C.) comply with a subpoena to testify before a grand jury in Fulton County, Ga. The district attorney there is conducting a criminal investigation into the parties involved in trying to overturn the results of the 2020 presidential election.

In government, even Alexander Hamilton's “least dangerous" branch — the judiciary — becomes dangerous when there is no enforcement mechanism behind a law.

Title 28, Section 455 of the United States Code is the federal statute that applies to Thomas. It provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" or his spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."

The statute says "shall" — meaning, this is not discretionary. Congress has imposed on federal judges a mandatory duty to disqualify themselves if their impartiality might be reasonably questioned. It does not matter whether Thomas issued Graham’s desired stay or denied it; he wasn’t supposed to rule at all.

[gab13by13]

1. So what's the remedy?

No way in hell Merrick Garland will take on a sitting SC justice.

[FBaggins]

3. Nor could he

The only remedy would be impeachment

[gab13by13]

5. Not a practical remedy.

I repeat, what is the remedy?

[Miles Archer]

6. In the current situation, there is no remedy

Unless / until Dems have a sufficient majority to impeach him, it won't happen.

Roberts won't do anything...if it were his intention, he would have already taken action.

The remedy is that Clarence is going to do whatever he wants and get away with it.

[gab13by13]

8. We need to be realistic also.

Realistically speaking, Sam Alito is the de facto Chief Justice, Roberts only holds the title.

[FBaggins]

10. Not Alito - Thomas

As the senior justice in any majority that doesn't include the Chief

[Buckeyeblue]

36. Roberts can't do anything

The CJ doesn't have any real authority. It's largely ceremonial.

In this instance, at this stage of our country, Thomas is beyond reproach. He can pretty much do whatever he wants.

[LisaM]

53. Roberts wouldn't be on the court if it weren't for Bush v Gore.

Clarence Thomas also had a clear conflict of interest that time (as did Scalia and O'Connor). Yet they all stayed and stopped the vote count in Florida.

[Dark n Stormy Knight]

67. I guess Dems should've staged massive Stop the Steal

protests then.

[RussBLib]

84. We did. We marched on DC and protested

But we didn't bring weapons.

[Dark n Stormy Knight]

94. Well, maybe that's where we went wrong.

I hate guns, at least all the modern RW gun-humping culture. But I fear I may soon be sorry I didn't buy guns & learn to use them.

[SergeStorms]

62. Must be nice...

to have a lifetime position to which you weren't elected, have no one to answer to, and can't be reprimanded in any fashion.

Talk about autocracy! Jesus, the founding fathers fucked up on that one.

[calimary]

73. There's the solution. NO MORE lifetime appointments.

Applicable to those now on the Supreme Court, not delayed til some later date. Right NOW.

I’ve heard the 18-year term arguments. Those sound entirely good, reasonable, logical, and mindful of the need to understand and accept the realities of changing times and new movements arising in society in response to laws and conventions that have outlived their times.

Seems to me that any so-called “originalist” opinion on legal and Constitutional issues must be tightly constrained in its interpretation and application. Simply because using the thinking of officials who lived and served in the late 1700s is too often unrealistic and completely outdated. Last I looked, none of us has been driving to work via horse and buggy, writing on parchment (when available) with quills dipped in inkwells, or lighting our homes with oil lamps after sundown. So why must late-18th-century customs and mindsets apply to legal issues now?

[FBaggins]

9. There isn't one

Tribe is just spitting in the wind.

[msfiddlestix]

46. Tribe is doing an important service for the public, he's not just spitting in the wind.

Though you are correct in your assessment with regard Thomas in terms of today's reality.

He's pointing out the great harm to this court regarding the requirement to recuse by highlighting the actual text on point.

[FBaggins]

47. You say tomato

They're the same thing to me.

As when he argued before the court... his role is to make the best possible form of the argument. Even when he knows that he will lose.

[dem4decades]

86. He's just telling us that the wetness we're feeling is Thomas pissing on us. And there's nothing

we can do.

[Effete Snob]

11. Here's the whole thing

There isn’t one. The judges are expected to do it on their own.

https://www.law.cornell.edu/uscode/text/28/455

You might use it as a ground of appeal if it happened in your case, but obviously that doesn’t apply to the Supreme Court.

This is another example of legal fan fiction.

[hadEnuf]

70. It's becoming quite clear that our laws are just window dressing to call ourselves a democracy.

Unless of course you are poor, AA, Latino, a Democrat, Gay, etc,etc.

Then the law becomes very real.

[Effete Snob]

77. Does "AA" signify Alcoholics Anonymous in this context?

[hadEnuf]

79. African Americans if you will....

But Alcoholics Anonymous members don't get a pass on laws either. Not unless they are mega rich and well connected.

[Effete Snob]

80. I see.. and Clarence Thomas is not an African American now?

This will no doubt come as a surprise to many.

[hadEnuf]

85. He's wealthy and well connected. He mocks the law.

And do you really think he cares about the plight of average African-Americans just because he is AA?

Oh, there's that AA again. Hope it isn't too confusing.

[Effete Snob]

87. Okay, so just so I understand you

When you used “AA” the first time, you did not mean to include Clarence Thomas, because once an AA becomes wealthy, then they are the same as white to you.

Do I understand you correctly? This is the reason why Clarence Thomas is not “AA” within the meaning of your first use of that abbreviation in this thread.

[hadEnuf]

97. My first post never mentioned Clarence Thomas. You mentioned him in your reply.

My post was a blanket statement of how the law does not apply evenly to people in high positions and power, but it most always applies to the rest of us, especially "minorities".

You are parsing my words to try and find something but it seems to be failing miserably on you.

[Effete Snob]

98. Do you see the subject line of this thread?

[hadEnuf]

99. You don't tell me what to write.

If you think my post is so off topic then alert on it.

[Aviation Pro]

18. A well timed aneurysm.

….

[FoxNewsSucks]

28. that remedy is long overdue.

And not just for him

[mountain grammy]

42. Bingo!

and I hope I'm still around when it happens.

[DownriverDem]

30. It's not up to Garland

Impeachment in the Houuse & a trial in the Senate with a guilty verdict is the only way.

[mountain grammy]

41. He dies..

he's not very healthy.. like Scalia. That's the remedy and that's what "appointed for life" gets us. Geniuses, those founding fathers. Riiiiiiight!

[Hieronymus Phact]

71. Everyone ship him boxes of high-calorie snack foods and chips!

Maybe a go-fund-me campaign to buy a lifetime gift-card for all the french fries he can eat.

[treestar]

59. Tribe says none

But honor of the justice. Pressure from the others could help.

[Jack the Greater]

64. "So what's the remedy?"

Last edited Thu Oct 27, 2022, 02:50 PM - Edit history (1)

Exactly what the OP did... broadcast it, so people are made aware.

[GenXer47]

2. let's file an foia request

to find out the last time Ginni gave Clarence a blowjob. He's made it our business!

[rubbersole]

26. Does 50 years ago count?

Revers....never mind. I'm going to get a Brillo pad and scrub my brain..........barf.

[erronis]

63. Oh, I read this as a "foie request" - a 10 pound order of pate de foie for Justice Thomas

That might clog his arteries in a few minutes.

[spanone]

4. K&R

[FBaggins]

7. Tribe is incorrect

1 - There is no authority other than the justices themselves who can evaluate "might reasonably be questioned".
1.5 - Put another way - "Shall" does not sound discretionary... but whether "might reasonably be questioned" applies is. So it's the same thing
2 - The law has never been applied to SCOTUS justices...
3 - ... nor could it be. Clear separation of powers issues. It has been insisted on previously... and never gotten anywhere.

Just as Congress could not, by statute, decide that the president was Commander in Chief only on alternate Thursdays. The constitution lays out how to discipline a justice and who has the power to do so. Congress can't lower that bar by legislation.

[gab13by13]

12. Tribe cited a federal statute,

If a justice violated a federal statute why could he not be prosecuted?

Just like the Cyber Ninjas violated Title 52, they should have been prosecuted by DOJ.

If Clarence Thomas murders someone is he immune from prosecution?

[FBaggins]

13. And applied it incorrectly.

If a justice violated a federal statute why could he not be prosecuted?

If the statute could not constitutionally be applied to a SCOTUS justice... then he can't be prosecuted (assuming the statute even contains a penalty). And guess who gets to decide whether the statute can be constitutionally applied to SCOTUS?

If Clarence Thomas murders someone is he immune from prosecution?

Of course not. But the punishment would not (could not) remove him from the bench or impact his ability to vote on cases.

[Effete Snob]

15. It's not a criminal statute

Prosecuted for what

This is not some criminal statute from 18 USC, this is a procedural statute, like the rest of 28 USC.

Are you going to make up a penalty during this “prosecution”?

Is it a fine? Imprisonment? For how long? Is this a felony or a misdemeanor?

You don’t just make up stuff as you go along. This is not a crime subject to prosecution.

[onenote]

17. Because not every federal statute is a criminal statue.

28 USC 455, the conflict of interest provision does not make it a "crime" for a judge not to recuse himself or herself. The statute has been on the books in one form or another for many, many years and there have been a number of cases brought where it has been alleged that a judge failed to recuse in accordance with Section 455. None of those cases were brought by the Department of Justice. Rather, they are always brought by a litigant who has unsuccessfully sought to have a judge recuse himself or herself and/or cases in which a litigant, after the fact, argues that they were harmed because the judge had a conflict of interest requiring recusal. Where the court reviewing the allegation of a failure to comply with Section 455 agrees that recusal was required, the remedy is to require the recusal or, if after the fact, reverse the outcome and remand for a new trial with a different judge.

The Fulton County prosecutor could seek Thomas's recusal from considering the stay request when it is heard by the full court; if they don't, it's the end of the discussion.

[Effete Snob]

21. Ima try a longer explanation

It's maddening that Tribe throws this stuff out in the press so that people take up pitchforks and torches like some kind of Oathkeeper brigade with their own "understanding" of law.

Gab, if you are still reading the thread, pull up a chair.

Yes, it's a federal statute.

There are lots of kinds of federal statutes. Bookmark this page for the index to all of them:

https://www.law.cornell.edu/uscode/text

They are arranged in Titles by subject.

The ones we usually think of are of the form:

"If you do X, then you will be punished with Y."

X is some act, like committing wire fraud, and Y is some punishment, like imprisonment or a fine. Most of those types of crimes are in Title 18 of the US Code.

Notice that Title 18 is called: TITLE 18 - CRIMES AND CRIMINAL PROCEDURE - that's where most of the crimes are. Go find one and have a look. It will define an act which is bad, and the penalty for it.

There are also statutes that say things like:

"If you do X, then Y can sue you for money or an injunction to make you do Z"

Those kinds of statutes are all over the place. They authorize civil suits by a regulator, or even another person, if you do whatever X might be. For example, have a look through:

TITLE 17 - COPYRIGHTS

It does things like defining what things are subject to copyright and who can sue whom for what, along with setting up a registration system in the Library of Congress. However, if the Librarian of Congress does not register your copyright, nobody is going to jail.

A LOT of laws are procedural. They just spell out how things are supposed to be done and who is supposed to do them.

When you come to Title 28, it is:

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

In accordance with Article III of the Constitution, this is the section of the US Code that defines how the courts are to be organized and what procedures they will follow.

For example, have a look at this one:

https://www.law.cornell.edu/uscode/text/28/674


28 U.S. Code § 674 - Librarian

(a) The Supreme Court may appoint a librarian, whose salary it shall fix, and who shall be subject to removal by the Court.

(b) The librarian shall, with the approval of the Chief Justice, appoint necessary assistants and fix their compensation and make rules governing the use of the library.

(c) He shall select and acquire by purchase, gift, bequest, or exchange, such books, pamphlets, periodicals, microfilm and other processed copy as may be required by the Court for its official use and for the reasonable needs of its bar.

(d) The librarian shall certify to the marshal for payment vouchers covering expenditures for the purchase of such books and other material, and for binding, rebinding and repairing the same.

Now, there's a federal statute which requires the court librarian - "He shall" - to buy books that are reasonably needed by the lawyers which practice in the Supreme Court.

So, what happens if a book is reasonably needed by the bar of the Supreme Court and the Librarian doesn't buy that book? Does the Librarian go to jail?

No. That's not what happens. The DoJ does not mount an investigation into whether or not the court librarian is supposed to buy, or not buy, any particular book. Arguably it's up to the librarian to determine what's reasonably needed, and the statute authorizes the librarian to go ahead and buy that book. It's a puzzler. Maybe someone could do some research into past disputes over the court librarian's book-buying.

But, the upshot is, that's the general neighborhood of laws where Tribe is basing this piece of "let's get paid to write up some stuff people can get excited about" fan fiction.

This is why we shouldn't elect idiots who appoint idiots in the first place.

[FBaggins]

37. Solid - but one addition

If the judge involved were a district court judge, then a party could appeal the decision not to recuse to the circuit court... which could reverse the lower court's decision. It still wouldn't be a crime and there still wouldn't be a punishment... but the recusal would be forced.

The problem here is that just like other appeals to SCOTUS... there is no appeal beyond them.

[onenote]

54. +1

[treestar]

60. It needs a check or balance

That is part of the separation of powers

[FBaggins]

61. It has one

But (as with any direct conflict between the three branches in their core areas of responsibility), the bar is set high.

[Effete Snob]

14. Lol - legal fan fiction

Don’t expect anything to happen here, since there is no penalty or enforcement mechanism in this instance.

If it were a lower court, perhaps it could be brought up on appeal if it affected your case. Obviously, that wouldn’t work here.

But this isn’t some kind of criminal statute. For a Supreme Court justice, it’s just a suggestion.

Tribe has really gotten sad in the last few years in some of the popular stuff he writes. He’s just playing with the fan base here.

[FBaggins]

16. Exactly - but it has been tried before

One of the PA election cases saw a request for ACB's recusal.

That was a far clearer case of a reasonable appearance of lack of impartiality. The court was split 4-4 on the question and Trump explicitly said that he wanted to get her onto the court in order to break the tie.

The motion to recuse was quickly withdrawn because only ACB could evaluate whether she needed to recuse herself. Not the Chief Justice, not the majority of other justices, not a well-respected con-law professor, and no DOJ action could pull her from the case.

[Effete Snob]

25. Since we are going to see more abortion litigation

Just wait until the right wing wants to run with whether any judge in an abortion case has ever had or procured an abortion.

They've already done this sort of thing by complaining about allegedly gay or lesbian federal judges deciding marriage equality cases, or minority judges deciding racial discrimination cases.

While one can draw something of a categorical difference between "a case affecting a class, and the judge being a member of the class" and "a case involving specific individuals, one of whom is related to the judge", even that categorical classification can become murky to distinguish.

[plimsoll]

29. Fiction in the sense that it's essentially meaningless?

Yes, and we need to remember that this majority was appointed because they had very specific but plausibly deniable prejudices. The GOP has been building a partisan SCOTUS for 40 years. They were mad that Bork didn't get on, but he was Nixons Barr, and marginally more honest than any GOP appointee since then.

So in addition to the fiction that the statute has any meaning legally, we have the fiction that any of those GOP justices would abide by it because it's ethically the right thing to do. They weren't put there for their ethics, or sense of justice. They are there to work their masters will.

[gab13by13]

19. Then the solution is

to win the Senate and add seats to be able to put 4 more justices on the court.

That appears to be the only realistic, but shaky, remedy.

I ask stupid questions so that when I get shot down I can understand. Thanks for the explanations.

[Effete Snob]

22. It's fine

It's maddening that Tribe puts this stuff out there without context.

[thesquanderer]

32. Even more justices would not necessarily have changed what happened here

This decision was unilateral on the part of Thomas, based on whose jurisdiction it was in. It was not a vote of the entire court. So having more justices wouldn't have changed what happened unless the jurisdictions of the new justices caused a change that resulted in this particular decision having been assigned to some other justice.

[onenote]

66. True. But having more judges might impact the full court decision

While Thomas should have recused himself and handed the petition off to another justice, the decision to grant a short administrative stay while the full court considers the emergency stay request probably will be a nothing burger in terms of actual impact. That's because Graham isn't scheduled to give his deposition until November 17 and it is likely that the full court will decide Graham's request before that date. It wouldn't shock me if his request is granted by a majority of the court. But will it be 6-3 or 5-4? If its 5-4 with Thomas in the majority there will be reason for outrage.

One question that needs to be considered: why isn't Fulton County formally requesting that Thomas recuse himself? Are they concerned it would turn him against them? I think its likely that ship already has sailed.

[Effete Snob]

45. Supreme Court Group Photo - 2050

[Hermit-The-Prog]

76. I favor 15 but could live with SCOTUS looking like the House.

[Lonestarblue]

20. Using this reasoning, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett should have recused

on the Dobbs decision because their “impartiality might reasonably be questioned”—and was because their extremist religious partiality was on full display in overturning settled law.

Congress might be able to pass a law defining what serves as “good behavior” as the Constitution fails to do so if Democrats retain majorities and are willing to tackle a sensitive issue. Something needs to be done because we have a radical Court bent on remaking the country based on the personal preferences of six justices.

[Effete Snob]

23. Ah, but you also have to recuse all of the women, no?

You can't have women deciding cases involving women's rights, can you?

It's why, in general, right wingers they believe that judges should be straight, white men.

Straight white men are "objective", since they are not biased in cases involving racial or gender-based discrimination and so on.

Women and minorities, as judges, are "biased".

Remember Trump going on about his (incorrect anyway) complaints about a "Mexican" judge deciding immigration issues?

It's all very clear once you shut down about 2/3 of your brain, but it all comes from the fact that if you look up "normal person" in the dictionary, there is a picture of a straight white man. Preferably an older one, as well.

[niyad]

24. The lying, sexual predator, traitor's partner really needs to stop wasting oxygen.

[gab13by13]

27. The bottom line is,

it isn't just Clarence Thomas who is the problem, Alito is scarier.

We have a corrupt court and doing nothing about it isn't the answer.

Passing laws in Congress I don't think will happen.

I would like to see Democrats add 2 Senate seats, immediately start adding justices to the Court. So the immediate solution to the problem should be VOTE. Wife and I are a part of flipping a Senate seat in Pa.

[Joinfortmill]

35. You said it.

[jaxexpat]

38. It appears you've outlined the only possible correction possible.

Once again we have proof the framers drank a lot, spent their free time beating their slaves and really just wanted to call it off before they got caught.

[Effete Snob]

40. "the immediate solution to the problem should be VOTE"

That is the preferred solution to all sorts of things in various forms of democratic government.

It's one thing to say "We should get the courts to rule against the government doing X" or "the DoJ should do something about politician Y", but the baseline for that sort of approach to getting things done rests on the proposition that we are not capable of electing people to do the right things in the first place.

The harder job is to elect people that don't do stupid or awful things. If the answer to that is that we can't, because the stupid and awful have too much electoral support, then what kind of a democracy are we running here?

Take this whole "we need more women to vote" in order to undo the recent madness. Exit polling made it clear that a majority of white women voted for Trump. Heck, because of the historical intertwining of the suffrage and temperance movements, and their popularity among women, the first thing this country did after finally allowing women to vote was to ban alcohol.

I don't think women are any more or less likely than men to make stupid and counterproductive voting decisions. We do have true equality in that regard, and there are plenty of elected women, past and present - Boebert, MTG, Blackburn, Palin, Bachmann, Fox, and many others - who prove that every damned day.

[Joinfortmill]

31. We need to strengthen this statute - ASAP.

[FBaggins]

34. How?

Even if we could get around the certain filibuster and even if we miraculously retain control of both houses... they could just rule the new law unconstitutional.

[Zeitghost]

50. And they would be right in doing so

The Constitution is clear as to how a Justice can be punished. No law passed by Congress short of an amendment is going to change that.

[DownriverDem]

33. Does anyone know

how the but,but but Hillary crowd feels?

[aggiesal]

39. This was on "The Last Word" ...

[Effete Snob]

43. Ah Lawrence O'Donnell

"Trump will not and cannot run for president, because..."

"Trump will not and cannot get the GOP nomination, because..."

"Trump will not and cannot win the election, because..."

"Trump will not and cannot survive (Avenatti / Impeachment 1 / Impeachment 2), because..."

O'Donnell is Exhibit A in the bucket of "I get paid to say what you want to hear, using fancy words."

If you or I were as completely and utterly wrong as O'Donnell has been over the years, I'd be eating out of dumpsters.

[aggiesal]

49. O'Donnell wasn't the only News Host that said that ...

In fact there were only a few that kept warning us that Pendejo45 could
(insert any of the 4 you listed) actually prevail.

Personally I believe the News Hosts should just report the facts and not opinions, like the 4 you listed.

[Effete Snob]

51. It's the arrogance with which he pronounces his failed predictions which grates on me

I eventually found him unwatchable.

Here comes Lawrence to tell you what he is certain about today with an overly dramatic delivery.

The BEST example of "what's wrong with Lawrence O'Donnell" is this clip:

Now, yes, of course, there is no question that Barack Obama was born in Hawaii in August 1962.

However, in his bubble of arrogant confidence, he brought a crazy birther on his show the day that the president held a press conference and provided copies of his birth certificate, and expected that, in the mind of said crazy person, that was the end of the story.

It was an utterly lame-brained idea to waste TV time giving her exposure, but it is a classic demonstration of his arrogant confidence that he seems to have believed that a crazy person was somehow going to come to reality merely because he demanded it.

[Marius25]

44. Thomas needs to be charged with obstruction of justice.

Supreme Court justices are not Kings.

[onenote]

55. How did he obstruct justice? Did Kagan obstruct justice when she stayed the Kelli Ward subpoena?

The two situations are indistinguishable but for the argument that Thomas shouldn't have been the one to make the decision. But if he had stepped aside or denied the request, Graham could have, and would have, gone to any Justice he wanted with the same request.

[ecstatic]

88. I'm trying to understand. Did Kagan or her spouse commit a crime

or deeply unethical conduct that was (temporarily?) covered up due to the stay for Kelly Ward?

It seems like the criminal and/or gross misconduct coverup aspect is being left out by the legal scholars in this thread. How can that not be relevant in a system that claims that nobody is above the law?

[onenote]

90. So why hasn't the Fulton prosecutor moved to have Thomas recuse himself

from the full court's consideration of Graham's emergency petition?

[ecstatic]

92. Hell, maybe I'll write a letter asking her to.

Because this is ridiculous and who knows if she's even up to date on the Thomas's lawlessness. I imagine she's quite busy.

[onenote]

93. I imagine that Graham's motion is at the very top of her list of things she's dealing with

She just filed her opposition to Graham's motion yesterday. It's addressed to Thomas. You think she doesn't know of Ginni Thomas's involvement in election shenanigans?

[ecstatic]

95. Fair enough, but did you deflect my original question?

You answered my question with a question. Lol. The legal scholars in this thread, you included, seem to be approaching the issue in a vacuum that doesn't consider the fact that Ginny Thomas (I assume with her husband's blessing) was right alongside Lindsey Graham & tfg in trying to overturn the 2020 election.

And now we have Clarence Thomas assisting Lindsey Graham in his refusal to testify under oath. What does Lindsey know about Clarence and Ginny's involvement? We deserve answers from everyone involved.

As far as DA Fani Willis, I didn't know she responded. I'm about to look for a summary now!

[onenote]

96. Here's a link to her response.

https://www.supremecourt.gov/DocketPDF/22/22A337/244167/20221027162157458_Graham%20v.%20SPGJ%20-%20SCOTUS%20-%20Response.pdf

With respect to your questions:
Did Thomas commit a crime by granting a temporary administrative stay pending full court review of Graham's request? No. The recusal statute is not a "criminal" statute; it is essentially a rule of procedure. Nor was granting the temporary stay an "obstruction of justice" and, in fact, was essentially harmless, since it merely passed the buck to the full court well before Graham was scheduled to give his deposition.

Was it unethical? In my opinion, yes it was objectively unethical for Thomas not to recuse himself and will be so if he doesn't recuse himself from the full court's consideration of Graham's request. Was it "gross misconduct"? Again, I think so, but that's a subjective standard.

I don't see any "cover up" here at all.

Finally, the following group "Fix The Court" tracks recusal issues and keeps a running list. It's actually pretty interesting to see whether and/or when justices will recuse themselves.

https://fixthecourt.com/2022/10/recent-times-justice-failed-recuse-despite-clear-conflict-interest/

[ecstatic]

100. Thanks for the detailed response.

I skimmed the 27 page response and was a little disappointed. It looks like the 11th circuit severely limited the scope of the questions that could be asked anyway, and her assurances that no irreparable harm could come to Lindsey opened up more questions. I'm just going to move on and try not to think about it for now.

[bullimiami]

48. so after reading all the responses.

since this is obviously unlawful.

willis should go ahead and convene. let him be in contempt. swear out a warrant for his arrest.
and request his extradition from wherever he is to bring him in to testify.
document in the court proceedings that thomas's unlawful ruling is not recognized, and why.

toss a pebble into the hornets nest just to see what happens.

[onenote]

56. None of that is going to happen.

First and foremost, Graham isn't scheduled to give his deposition until November 17 and the full court will have decided the emergency petition for stay by then.

Put in legal terms, in all likelihood, Thomas's decision to grant a short administrative stay instead of recusing himself and letting someone else grant will be "harmless error". Just as Thomas's failure to recuse himself from the january 6 documents case was harmless error since his vote was not in any way determinative of the outcome.

Now, if he doesn't recuse himself from the full court's consideration of Graham's request for a stay and that decision is 5-4 with Thomas in the majority...that would be a different story. My guess is that the other conservatives on the court will all vote together and Thomas's vote won't be determinative.

[bullimiami]

68. No of course it isnt. But one can dream of possibilities.

[stopdiggin]

82. I think you came away with a completely wrong take

from reading all the responses. The correct one would be - there is no legal remedy. (not even a 'show pony' set of proceedings - however you imagine that taking place.)

The Supreme Court sits atop a co-equal branch of government. Thus, there is no 'court' in which to take (whatever argument someone is pitching) to adjudicate.

We can sit here and spit and sputter all we care to (which would appear to be what Tribe is aiming for) - but in the end we're only entertaining ourselves.

[Scrivener7]

52. Tribe is becoming "spit into the wind guy."

[stopdiggin]

83. I think that is essentially true

and, from there, we have to move on to - is this guy really providing anything of value or merit anymore? Maybe the ready platform is no longer justified?

[Pepsidog]

57. I didn't know this. Seems to be pretty clear and unambiguous.

[onenote]

58. If you read the various comments you'll see that it is indeed rife with ambiguity

[Pepsidog]

65. Actually, I usually always read the comments but didn't here. Hard to find

commentary as good as this. While I still think the statue is pretty straight forward, issues regarding enforcement are discussed. I agree with others that the statue is a procedural statue regarding how the judiciary should act when confronted with a potential conflict of interest. What we have always taken for granted is how most of the federal judiciary will police itself and refrain from hearing cases that they may have an interest in. Lawyers are taught to refrain from doing anything that even hints at impropriety, it's the most basic concept regarding attorney conduct. Judges like Cannon and Justice Thomas are doing their part to blow up even the most basic norms just like TFG blew up presidential norms.

[elias7]

69. Much of our government is run on the honor system. Where there is no honor, the system breaks down.

[stage left]

74. +a billion

a gentleman's agreement just doesn't work among power hungry thugs.

[bringthePaine]

75. Roberts should resign,Biden should correct Obama's error, recess appoint new chief, impeach Thomas

[ecstatic]

89. Lol. I wish. Which error did Pres Obama make?

Are you referring to the Merrick Garland fiasco?

[onenote]

91. When was Biden given the power to impeach Thomas?

And I wouldn't hold my breath waiting for Roberts to resign.

[soldierant]

78. Political Voices Network

Several Topics are discussed = one os the two stays, one by Kagan and on by Thomas,given to MAGAts. The whole thing isn't that long so it's worth watching to get to that discussion.

[BlueJac]

81. Thomas is an ass wipe Justice!

He needs to be removed asap before he destroys the court entirely.