ASPEN, Col. – Both times I’ve seen Sandra Day O’Connor here, I’ve seen audience members try to pin down her opinion of Clarence Thomas’s financial disclosures. On Monday, a questioner asked, without naming Thomas, whether a justice should be investigated if he was making decisions relating to a financial interest. And yesterday, a questioner asked O’Connor and sitting justice Stephen Breyer another phony hypothetical – should a justice recuse himself if he had a spouse active in an issue that was being decided? Hint, hint. The reference, as some chucklers in the crowd understood, was to Clarence and Ginni Thomas.
“As you know, there’s no code in the Constitution telling judges at any level, federal judges at any level, when they should recuse themselves,” said O’Connor. “It’s been left to the good judgment of the judges themselves. In some cases, courts have adopted general guidelines to be used by the judges… I have yet to find a situation where any judge on our court would not try to comply the same way.”
Breyer answered the question more directly. “As far as what your wife does, or your husband, I myself try to stick to a principle that a wife or husband is an independent person, and they make up their own minds as to what their own career is going to be,” he said. “If the wife decides she wants this career, that’s just fine with me. If there is something in the disclosure form every year, I have to disclose every penny that I earn or have as an asset, that my wife earns or have an asset, that my children earn or have as an asset. And it costs quite a lot of money to pay an accountant to do that, because you know one thing wrong and there’s going to be a headline.”
That wasn’t really an endorsement of Thomas’s situation, but the next part of his answer was more sympathetic.
“If I recuse myself on the Supreme Court, there is nobody else [to take my place],” he said. “And that could change the result. I think the fact that my wife, who happens to be a clinical psychologist… when I get a case about psychology, I sit in those cases.”
So the conference continues without anyone drawing blood or making a headline about l’affaire Ginni.