Why Virginia Thomas is creating a conflict of interest for Justice Clarence Thomas

The LA Times has a story today highlighting the involvement of Virginia Thomas, wife of Justice Clarence Thomas, in a private company, ‘Liberty Central’, that will promote elements of the Tea Party agenda by involving itself in Congressional races around the country this November.

To me, this creates a pretty gigantic conflict of interest. But Andy McCarthy at the National Review has taken some time off from calling for the McCarthyite vilification of Justice Department attorneys and the torturing and indefinite detention of alleged terrorists to show the mote in his eye where this subject is concerned:

But if you are the wife of a Supreme Court justice — not the Supreme Court justice himself, mind you, but the justice’s wife — and you dare to have your own career and further dare to be a public conservative who defends core American principles of individual liberty against the Leftist onslaught, we are supposed to assume that the impartiality of the Supreme Court (on which the wife of the justice does not sit) has been compromised.

That’s the upshot of the Los Angeles Times hit job this morning by Kathleen Hennessey on Ginni Thomas, wife of Justice Clarence Thomas. It’s an unmitigated disgrace.

I’ve looked through other articles by Ms. Hennessey, searching for one about whether she thought the high court would be compromised by the appointment of Justice Sonia Sotomayor. Prior to her appointment, Justice Sotomayor herself — not her spouse, herself — was a Leftist activist (board member and top policy maker at the Puerto Rican Legal Defense and Education fund) who infamously opined that a “wise Latina” is more apt to make good decisions that a mere “white male who hasn’t lived that life.” Doesn’t seem to have troubled Ms. Hennessey, though.

You can only miss the point this powerfully if you’re belligerently ignoring the obvious here: the income of Mrs. Thomas, and thus the wealth of her and Justice Thomas’s household is directly related to Justice Thomas’s decision-making on the Court where Citizens United was concerned.

I’ve actually blogged about this before. When the Federal Trade Commission took up the case of whether or not a commissioner should recuse herself from evaluating the anti-trust implications of a merger because her husband had worked for a law firm advocating the merger, they reached a clear conclusion: no recusal was necessary because the husband’s income would not be implicated by the merger’s result, and so there was no conflict of interest where her family was concerned.

In this case, Justice Thomas has evaluated a case, Citizens United v. FEC, which will now allow his wife to raise substantial amounts of corporate money, some of which will go to her personal income (as head of Liberty Central). Moreover, should Congress overturn Citizens United by way of legislation, a court challenge to the bill will no doubt emerge. If Justice Thomas refuses to recuse himself from the case, he will again be weighing a matter that is directly related to his family’s income.

Mrs. Thomas could easily resolve this issue if she were to work without compensation for Liberty Central. Many people of conscience do this all the time in Washington for whatever cause is important to their hearts. Unfortunately, if Mrs. Thomas is drawing a six-figure income from the organization, then, yes, we have a conflict of interest here.

But McCarthy’s line is a foolhardy comparison of apples with oranges. Justice Sotomayor does not currently sit on the board of the Puerto Rican Legal Defense Fund, or any ‘leftist’ cause. A Supreme Court decision on any matter relating to Puerto Rican political issues will not have any impact on her personal economic well-being. Nor is there any indication that Judge Sotomayor ever failed to recuse herself from any matters where it would have been appropriate for her to do so prior to her elevation to the Supreme’s bench.

The LA Times has highlighted an important downside of the narrow majority’s activist decision in Citizens United. I hope they’ll keep watching Mrs. Thomas’s political activities.

Update: I think there’s one point I didn’t clarify above sufficiently. Critics of the LA Times’s article say that liberals are insinuating that Mrs. Thomas cannot get a job because of her husband’s employment. That’s obviously not the point here. It’s just that if Ginni Thomas takes paid work that creates a conflict of interest with Justice Thomas’s jurisprudence, then Justice Thomas should recuse himself from all such cases. Should he do so, any concerns about conflicts go away, and Mrs. Thomas can earn as much money as she cares to.