Rep. Jamie Raskin raised eyebrows on Sunday with a CNN interview where he said that there may have to be action taken if Justice Clarence Thomas does not recuse himself from pending appeals over the disqualification of Donald Trump from the Colorado and Maine ballots. Not only is there a weak basis for demanding such recusal, the suggestion of some type of response or retaliation raises ongoing concerns over efforts to influence or intimidate justices.
CNN host Dana Bash asked Raskin, a former law professor, whether Thomas or any of the judges appointed by the former president should recuse themselves. Raskin responded that “anybody looking at this in any kind of dispassionate, reasonable way would say, if your wife was involved in the ‘Big Lie’ and claiming that Donald Trump had actually won the presidential election and been agitating for that and participating in the events leading up to January 6, that you shouldn’t be participating in (the rulings).”
I, for one, disagree. Under this theory, Thomas would have to recuse himself from any election or Trump related case because of his wife’s advocacy. Justices on both the left and right have long applied a far more narrow view of recusal.
However, Raskin then stated: “He absolutely should recuse himself. The question is, what do we do if he doesn’t recuse himself?”
The reference to some response from Congress or the public was left unexplained. In the past, Democrats have been criticized for fueling the attacks or targeting of conservative justices.
In fairness to Raskin, I do not believe that he is an advocate for violence. He could be referring to the public voting against Trump. I wish, however, that his fealty to the constitution would extend to opposing this pernicious and dangerous theory. Other leading Democrats in Congress have done so.
Senate Minority Leader Sen. Chuck Schumer was widely criticized (including by Chief Justice John Roberts) when he went in front of the Supreme Court to publicly declare “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”
There is nothing Congress can do to force Thomas off the appeal. The concern is that Raskin is encouraging new targeting of justices at their homes by protesters.
The interview had other curious elements. Raskin made a rather anemic effort to portray the removal of someone from the ballot as weirdly democratic under the theory that Trump picked himself for disqualification: “If you think about it, of all of the forms of disqualification that we have, the one that disqualifies people for engaging in insurrection is the most democratic because it’s the one where people choose themselves to be disqualified.”
That is akin to treating every criminal charge as an act of self-selection and consent by the accused.
Raskin also stated that all of the justices on the left and right “call themselves textualist and originalists.” That is not true in the sense of originalism as a school of constitutional interpretation. Justices Sotomayor, Kagan, and Jackson do not follow an originalist approach but rather a more flexible living constitutional approach.
Moreover, many of us do not believe that the text or original intent of the 14th Amendment support this anti-democratic theory.
Here is the interview: Raskin segment
