Congressional Democrats are united in their fury that Supreme Court Justice Clarence Thomas ruled on cases concerning the effort to overturn the 2020 election even though his wife, Ginni, was an enthusiastic player in that effort.
But Democrats can’t agree on what they can really do about it—if they can do anything at all.
That’s not to say different lawmakers haven’t workshopped a wide array of ideas since the bombshell dropped that Ginni Thomas texted President Trump’s chief of staff, Mark Meadows, dozens of times after the 2020 election urging him to keep Trump in power. In January, Thomas was the lone dissenter in a ruling requiring the release of White House records to the Jan. 6 investigation in Congress.
In the last week, many Democrats in the House and Senate have used their bully pulpits to call for Thomas to recuse himself from cases related to the 2020 election or the Jan. 6 insurrection. They’ve also appealed to Chief Justice John Roberts to preserve the integrity of the court by instituting clearer ethical guidelines, which the Supreme Court currently does not have.
Other Democrats have gone even further and called for Thomas to resign, arguing that his participation in cases potentially involving the release of his wife’s sensitive personal communications is ethically disqualifying for the entire job.
Some have proposed mounting an investigation in the House Judiciary Committee to dig in further—or even draft articles of impeachment in the House, which would require a simple majority to pass.
And nearly all Democrats have embraced the idea of passing ethics reform for the Supreme Court in the hopes of giving justices some basic ethical rules to abide by, since it remains the only court in the nation without one.
To move forward with any of these tactics—particularly the legislative ones—would require a great deal of unison among members in order to be successful. But like with much of their politicking this past year, Democrats simply aren’t on the same page, and don’t seem poised to get there.
Given these divisions the likely result is a lot of bluster and very little action.
That outcome would please virtually no member of a Democratic party base that increasingly cares deeply about the faltering institutions of U.S. democracy and is, generally, disappointed with the pace of accountability so far in Democratic-controlled Washington for Trump and his allies over their role in spreading election lies and fomenting Jan. 6.
When the news of Ginni Thomas’ texts dropped, progressive groups mobilized quickly to press lawmakers to call for Justice Thomas’ resignation or impeachment. That has had an impact: several said that they have gotten calls from their constituents asking them what they intend to do about Thomas.
But so far, only a handful of Democrats have embraced impeachment, notably Rep. Alexandria Ocasio-Cortez (D-NY), who said that step should be taken if Thomas doesn’t resign. Rep. Ilhan Omar (D-MN), another member who’s raised the prospect of impeachment, told The Daily Beast she’s heard some of her colleagues are already drafting up the paperwork.
Others, like Rep. Mondaire Jones (D-NY) believe that “everything has to be on the table.”
“It is the prerogative of Congress to conduct oversight of the federal judiciary,” Jones said.
That level of punishment is still the minority opinion. Even those most critical of Trump and the GOP’s right wing were not ready to call for impeachment of the justice at this point.
Rep. Jamie Raskin (D-MD), who was one of the impeachment managers in Trump’s second trial, warned Democrats to “not water down the meaning of what impeachment is.”
“Let's save it for extreme episodes of crimes against the union, the kind that Donald Trump is accused of,” Raskin told The Daily Beast.
Rep. Hank Johnson (D-GA), a Judiciary Committee member, previously stated his support for opening impeachment proceedings on Thomas, but has cooled down in recent days out of deference to his colleagues on the Jan. 6 committee.
“The January 6th Committee has a lot of irons in the fire, including Ginni Thomas,” Johnson told The Daily Beast, “and I think that anything that interferes with their work is not something that I support.”
That preference to defer to the Jan. 6 committee is shared by other Democrats, including President Joe Biden.
Though Biden campaigned for the White House on the notion that the future of democracy itself was on the ballot, he has not weighed in on the Thomases’ apparent conflicts, defaulting to his often-utilized position of leaving legal matters up to the Justice Department to resolve.
“I’d leave that to two entities,” Biden said on Monday, in response to a question from a reporter on whether Justice Thomas should recuse himself from cases involving the attempted insurrection of former President Trump. “One, the January 6th committee and, two, the Justice Department. That’s their judgment, not mine to make.”
The White House is apparently so disengaged from the Ginni Thomas discourse that officials weren’t aware that this manifestly insane text message—first revealed by The Washington Post last week—even existed. Asked for a response to the allegation that the president’s family had been secretly arrested for sedition, a White House spokesperson responded: “Wait when did she say that?”
When asked about Thomas, the vast majority of Democrats seem resigned to the fact that Thomas will not step down—and are simply holding out hope that pressure might build for him to recuse himself from cases where he has a clear conflict of interest due to his wife’s actions.
That much would be in line with standard precedent for Supreme Court judges who’ve historically stepped back from cases due to work histories or family ties.
“There’s just no question that he has to recuse himself… That to me just seems like an open-shut case,” Sen. Chris Murphy (D-CT) told The Daily Beast.
Jones, for one, said he intends to dig deeper on the provision in federal law that requires judges to recuse themselves from “any proceeding in which his impartiality might reasonably be questioned.”
“That has gotten lost in the noise,” said Jones, who called for Judiciary Committee hearings on the Thomas conflict of interest. “There's not enough education around that. It's actually not a gray area.”
Some Democrats hope that even if they cannot hold Thomas accountable, the episode might breathe some life into the push to create some basic ethical standards on the high court.
On Monday, Sen. Elizabeth Warren (D-MA) led a letter with 20 other Democrats to Roberts, asking him to create a binding “Code of Conduct” for the Supreme Court.
“We need to put regulation in place,” Warren said. “We needed to do it long before this scandal arose… but this scandal may be the impetus to get it done.”
Regardless of what Democrats decide to do, the Jan. 6 committee is set to at least further probe Ginni Thomas’ role in the Capitol riot. They intend to ask her to voluntarily sit for an interview, though some members of the panel would like to go ahead and subpoena her, according to ABC News, in order to move the process along.
Depending on what they find, Justice Thomas’ decision to rule on cases related to the 2020 election and Jan. 6 on the high court could look even more questionable.
In January, the court rejected an urgent appeal from Trump to block the release of records from his White House that the Jan. 6 committee had requested. The lone dissenter was Thomas, and he offered no explanation for it.
But Ginni Thomas’ texts were included in a batch of 9,000 documents that Meadows turned over to the committee. According to the New York Times, Thomas later participated in the court’s consideration of a separate case where Meadows had filed a “friend of the court” brief, appealing to the justices that their decision would affect his ability to withhold his records from investigators.
Many Democrats spoke as if this were not the end of the Thomas saga. That means they will likely continue to wrestle with the dilemma that has dogged them during the Trump era—coming up with answers for norm-breaking behavior by elements of the executive or judicial branches when there aren’t really any good answers.
When asked about Thomas, Sen. Brian Schatz (D-HI) recalled when numerous lawmakers called on Trump to resign after the Jan. 6 Capitol riot he incited—which, of course, he had no intention of doing.
“There’s a tendency for politicians to call for resignations,” said Schatz. “There was a point in which everyone was calling on Trump to resign, and I sort of feel like that’s a little casual.”
