Activism of Supremes Clarence Thomas’s Wife Could Raise Judicial Issues

Stephen Crowley/The New York Times

Virginia Thomas, left, of the organization Liberty Central, and Diana Reimer, in May lobbying against the health care bill.

By JACKIE CALMES NYTimes 

RICHMOND, Va. — As one of the keynote speakers here Friday at a state convention billed as the largest Tea Party event ever, Virginia Thomas gave the throng of more than 2,000 activists a full-throated call to arms for conservative principles.

Pool photo by Francisco Kjolseth

Virginia Thomas and her husband, U.S. Supreme Court Justice Clarence Thomas in Salt Lake City on July 19, 2010.

For three decades, Mrs. Thomas has been a familiar figure among conservative activists in Washington — since before she met her husband of 23 years, Justice Clarence Thomas of theSupreme Court. But this year she has emerged in her most politically prominent role yet: Mrs. Thomas is the founder and head of a new nonprofit group, Liberty Central, dedicated to opposing what she characterizes as the leftist “tyranny” of President Obamaand Democrats in Congress and to “protecting the core founding principles” of the nation.

It is the most partisan role ever for a spouse of a justice on the nation’s highest court, and Mrs. Thomas is just getting started. “Liberty Central will be bigger than the Tea Party movement,” she told Fox News in April, at a Tea Party rally in Atlanta.

But to some people who study judicial ethics, Mrs. Thomas’s activism is raising knotty questions, in particular about her acceptance of large, unidentified contributions for Liberty Central. She began the group in late 2009 with two gifts of $500,000 and $50,000, and because it is a 501(c)(4) nonprofit group, named for the applicable section of the federal tax code, she does not have to publicly disclose any contributors. Such tax-exempt groups are supposed to make sure that less than half of their activities are political.

Mrs. Thomas, known as Ginni, declined through a spokeswoman to be interviewed without an agreement not to discuss her husband. In written responses to questions, Sarah Field, Liberty Central’s chief operating officer and general counsel, said that Mrs. Thomas is paid by Liberty Central, with the compensation set by the group’s board, and that the group has “internal reviews and protections to ensure that no donor causes a conflict of interest for either Ginni or her husband.”

Nonprofit groups with political agendas like Liberty Central are operating in this election cycle under evolving legal and regulatory standards, most notably the ruling last January by the Supreme Court in the Citizens United case, which eased restrictions on independent campaign spending by corporations and unions. In that case, Justice Thomas, long an advocate of dismantling campaign finance restrictions, was in the 5-to-4 majority. Wealthy individuals and some corporations, emboldened by the ruling, are giving to such groups to influence the election but still hide their tracks.

Unlike many other conservative nonprofit groups that are pouring donations into television advertising to benefit Republican candidates, Liberty Central has not done so, and it is not clear whether it will.

This month, Liberty Central began what it called its first ad campaign, but the ads were limited to Web sites for the conservative talk-show hosts Rush Limbaugh and Mark Levin — suggesting an effort to build membership for Liberty Central, not elect candidates. The ads link to Liberty Central’s Web site and a video of Mrs. Thomas soliciting 100,000 signatures against the “Obama tax increase” — referring to the scheduled expiration of theBush tax cuts on Dec. 31.

The bigger question for many is how she is financing these activities. Liberty Central reported the initial $550,000 on its 2009 tax return, though the identities of the two donors are redacted.

A federal law requires justices to recuse themselves in a number of circumstances where real or perceived conflicts of interest could arise, including in cases where their spouses could have a financial interest. But the decision to step aside is up to each justice; there is no appeal from the nation’s highest court.

“It’s shocking that you would have a Supreme Court justice sitting on a case that might implicate in a very fundamental way the interests of someone who might have contributed to his wife’s organization,” said Deborah L. Rhode, a law professor and director of theStanford University Center on the Legal Profession.

“The fact that we can’t find that out is the first problem,” she said, adding, “And how can the public form a judgment about propriety if it doesn’t have the basic underlying facts?”

Steven Lubet, who teaches legal ethics at Northwestern Law School, said Mrs. Thomas’s solicitation of big contributions raised potential recusal issues for her husband. But he added, “There’s no reason to think that Justice Thomas would be anything other than extremely careful about it.”

“I think this is the world we live in, where two-career families are the norm and there are no constraints on the political activities of judicial spouses,” Mr. Lubet said.

Stephen Gillers, a law professor at New York University, said: “There’s nothing to stop Ginni Thomas from being politically active. She’s a private citizen and she has all of her constitutional rights.”

But as for the big donors, Mr. Gillers, citing a 1988 Supreme Court decision, said, “She has to tell him because the public is going to assume he knows,” and, Mr. Gillers said, fair-minded citizens could question Justice Thomas’s objectivity as a result.

The Supreme Court’s public information office said Mrs. Thomas had told court officials of her plans but it declined to provide any more information.

“Around the time of the launch of Liberty Central, Mrs. Thomas reviewed her involvement with the Supreme Court legal office. Discussions with the legal office that are part of efforts to obtain legal and ethics advice are not made public,” Kathy Arberg, the court’s information officer, wrote in an e-mail.

In past interviews, Mrs. Thomas has suggested she is being singled out unfairly; other spouses of judges are politically active, she has argued, usually mentioning Gov. Edward G. Rendell of Pennsylvania, a Democrat who is married to a judge on the Court of Appeals for the Third Circuit. Mr. Rendell has to disclose direct contributions to his campaigns. And parties can appeal to the Supreme Court should his wife not recuse herself when her impartiality is questioned.

Mrs. Thomas’s political work has drawn criticism before from Democrats. In the weeks before a 5-to-4 majority of the Supreme Court, including her husband, decided the 2000 election for George W. Bush over Al Gore, Mrs. Thomas was compiling résumés for potential appointees to a Bush administration from her job at the Heritage Foundation, a conservative, Republican-leaning research group
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