Anchor Don Lemon brought on the senior legal analyst just before the bottom of the 10 pm Eastern hour to discuss Kathleen Hennessey's article in the Sunday L.A. Times, titled "Justice's wife launches 'tea party' group." The Times writer indicated that Mrs. Thomas' new organization somehow risked the partiality of the Court, as indicated in the article’s subtitle, "The nonprofit run by Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, is likely to test notions of political impartiality for the court." She continued later that "the move by Virginia Thomas, 52, into the front lines of politics stands in marked contrast to the rarefied culture of the nation's highest court, which normally prizes the appearance of nonpartisanship and a distance from the fisticuffs of the politics of the day."
Hennessey also cited "expert on legal ethics" Stephen Gillers of NYU, who advised Justice Thomas to "be on alert for possible conflicts, particularly those involving donors to his wife's nonprofit. 'There is opportunity for mischief if a company with a case before the court, or which it wants the court to accept, makes a substantial contribution to Liberty Central in the interim.'"
Toobin, who over two years earlier accused Justice Thomas of displaying "a distinct solicitude ... for employers over employees, for government over individuals, for corporations over regulators, and for executioners over the condemned" in his term on the Supreme Court, actually brushed aside such concerns, citing Mrs. Thomas' long involvement in politics. He only raised the issue of "whether it's good judgment, and whether it's a appropriate thing to do."
LEMON: So listen, is there anything ethically wrong with a Supreme Court justice's wife getting involved in politics?Jack Dunphy, writing on Patterico's Pontifications blog, accused the L.A. Times of holding a double standard on the spouses of judges. Dunphy noted that Ramona Ripston, the wife of Judge Stephen Reinhardt of the infamous Ninth Circuit Court of Appeals, has been the "longtime head of the Southern California chapter of the American Civil Liberties Union," and yet, "the potential for conflict of interest went unremarked upon" by the newspaper.
TOOBIN (by phone): Well, there's certainly nothing illegal, and there's nothing in the canons of ethics that prohibits what Ginni Thomas is doing. There is, perhaps, the question of whether it's good judgment, and whether it's a appropriate thing to do. But certainly, there's no rule that either she or her husband is violating.
LEMON: Okay. So listen, here's what- you think of some of the words. She says, 'I am an ordinary citizen from Omaha, Nebraska, who just may have the chance to preserve liberty, along with you and other people here,' and this is what she said to tea party leaders in Washington. And then she went on to say- count herself 'among those energized in action by President Obama's hard left agenda.' First, as we said in the beginning of the show, it was the President criticizing U.S. Supreme Court justices at the State of the Union, and then, now it is her criticizing him. So these words, again, are they going to come back possibly to haunt Clarence Thomas in any way?
TOOBIN: I think in fairness to Ginni Thomas, it's important to remember that she has a long history in politics. She used to work for Dick Armey, who was the House Republican leader. She's worked for various conservative foundations. She is a formidable person in her own right. So the fact that her husband is a Supreme Court justice shouldn't prevent her from doing the work that she's trained and studied and has experience to do. So-
LEMON: And you know what, you're right, because, I mean, she fired right back and made a point- you know, noting to the L.A. Times that Pennsylvania Governor Ed Rendell is married to a federal appellate judge- so saying, what's the difference?
TOOBIN: Well, there is a substantial difference because Marjorie Rendell is on the 3rd Circuit Court of Appeals, which is an important job. But it is nowhere nearly as important as the Supreme Court of the United States, and because Clarence Thomas is one of only nine justices, and because they deal with the absolutely most hot-button and most politically sensitive issues, there is somewhat of a tradition. I wouldn't say a law, I wouldn't say a- any sort of formal guidelines, but there is a tradition for the justices off the bench to stay away from anything that is remotely political. We now live in an age where people's spouses are working as well, and that is- you certainly wouldn't want to prohibit one of the spouses from doing her work. But you can see why it might make some people uncomfortable that she is so explicitly anti-Obama and so activist in her activities. But- you know, it is a new day, and she is an experienced-
LEMON: You know what, we've- I'm going to move on here, Jeffrey, but- you know, freedom of speech- that's what this country is about, and her husband's a Supreme Court justice and you're an attorney, so- you know, everyone has that right. But, as you said, it may not be prudent for her to do that.
TOOBIN: Prudent- that's the word.