Guest column: Blind justice and the straw man
As a child it surprised me to hear people thought it was a good thing that “justice is blind.” At that age, justice for me could very well result in pain to my backside or even worse, no television. So it seemed very important to me that justice should have her eyes wide open, so I wasn’t punished unfairly.
It wasn’t long before it was explained that the real meaning of the phrase is that justice is based on facts and evidence, not personal interests, preconceived notions, or political views.
It is so important to preserve the ideal of unbiased justice, that judges and Supreme Court justices sometimes recuse themselves from a case to avoid bias, or even the appearance of bias.
Therefore, it is important for Supreme Court Justice Clarence Thomas to recuse himself from former president Trump’s executive privilege suit intended to keep his communications surrounding January 6 secret.
Attorneys for the former president recently appealed a federal court ruling that Trump’s communications related to the events of January 6 are subject to investigation.
In its November 30 opinion, the U.S. Court of Appeals for the District of Columbia began with a statement of facts.
“On January 6, 2021, a mob professing support for then-President Trump violently attacked the United States Capitol in an effort to prevent a Joint Session of Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President of the United States. The rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol. Then-Vice President Pence, Senators, and Representatives were all forced to halt their constitutional duties and flee the House and Senate chambers for safety.”
Another important fact to consider is that Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, openly expressed her support for the stop the steal protest on the day of the January 6 attack. She later noted that she posted support before the violence.
It is somewhat ironic that Ginni Thomas accused Democrats of engaging in ‘a silent coup attempt’ in 2018, then openly supported a sitting head of government trying to stop the counting of votes that elected his opponent, the definition of a self-coup.
And while the views of his wife may not matter much, the views Justice Thomas expressed in his recent dissent matter a great deal.
The Supreme Court denied the request to examine Pennsylvania election rules as moot, because any ruling would not have changed the outcome of the 2020 presidential election.
In his argument that the Court should have heard the case, Justice Thomas repeated the same straw man arguments featured at the stop the steal rallies that led to the assault on the U.S. Capitol.
Thomas repeated the argument that the court is often incapable of testing allegations regarding voter fraud or other wrongdoing, therefore demeaning the role of the American judicial system in ensuring electoral integrity.
“That is obviously problematic for allegations backed by substantial evidence. But the same is true where allegations are incorrect.” Citing Purcell v. Gonzalez, he added the following. “After all, ‘[c]onfidence in the integrity of our electoral process is essential to the functioning of our participatory democracy.’”
Nevertheless, Thomas repeated many of the disproven claims about the 2020 presidential election that continue to destroy confidence in the integrity of our elections.
Thomas repeated the same unproven claims about mail-in ballots being subject to increases in fraudulent voting that were highlighted at stop the steal rallies.
Although his opinion cited a couple of exceedingly rare cases separated by decades where voter fraud or misconduct had been proven in court, Thomas was dismissive of the Pennsylvania Supreme Court decision to uphold what he called a “vague clause” in the state constitution requiring elections be “free and equal.”
While Thomas admitted the rules in question did not appear “to have changed the outcome in any federal election,” a few sentences later he adds “But we may not be so lucky in the future.”
Thomas makes arguments which are almost identical to unsubstantiated claims made by Trump and stop the steal organizers. Therefore, it becomes obvious Thomas cannot possibly approach the executive privilege case in an objective manner.
Surprisingly, Thomas himself inadvertently makes a strong case to deny executive privilege claims and move on with the investigation into the cause of the January 6 assault on democracy.
“An incorrect allegation, left to fester without a robust mechanism to test and disprove it, drives honest citizens out of the democratic process and breeds distrust of our government.”
The former president continues to make allegations about election fraud which continue to breed distrust of government.
Thomas could restore some measure of trust by recusing himself from the executive privilege suit.