Published on Tuesday, December 12, 2000 in the New York Times
Job of Clarence Thomas's Wife Raises Conflict-of-Interest Questions
by Christopher Marquis
WASHINGTON, Dec. 11 — The wife of Supreme Court Justice Clarence Thomas said today that she was working at a conservative research group gathering résumés for appointments in a possible Bush administration but that she saw no conflict between her job and her husband's deliberations on a case that could decide the presidency.
The comments from the justice's wife, Virginia Lamp Thomas, a former Republican Congressional aide, came as a federal judge in Nashville said Justice Thomas faced a serious conflict of interest as a result of his wife's work for the Heritage Foundation.
The foundation has close ties to the Republican Party and would probably have a say in the hiring of key government officials if Gov. George W. Bush assumed the presidency. In e-mail distributed on Capitol Hill earlier this month, Mrs. Thomas solicited résumés "for transition purposes" from the government oversight committees of Congress.
A decision by Justice Thomas to recuse himself could alter the outcome of the case now before the court, which is weighing whether to allow a manual recount of votes in Florida. On Saturday, by a vote of 5 to 4, the court blocked the recount for now. Justice Thomas, who was appointed to the court by President George Bush, Governor Bush's father, was in the majority.
If Justice Thomas were to recuse himself, it could result in a 4-to-4 tie in the case now before it, which would allow the ruling by the Florida Supreme Court to stand.
"There is no conflict here," Mrs. Thomas said in an interview. She insisted that she rarely discussed matters before the Supreme Court with her husband and that Justice Thomas therefore should not consider recusing himself from the landmark case.
A spokesman for Vice President Al Gore said he had no comment on accusations of a conflict of interest. "The Vice President has the highest regard for the independent judiciary, so we're not going to comment on the various questions that have been raised," said Mark Fabiani, a Gore campaign spokesman.
Ari Fleischer, a spokesman for the Bush transition team, said he was aware that the Heritage Foundation regularly collected job résumés during presidential transitions, but he said he did not know if the organization was coordinating its efforts with the Bush camp.
"Like many professional women, Mrs. Thomas should not be judged by her spouse," Mr. Fleischer said, denying any conflict of interest. "She should be judged on her own merits and qualifications."
He suggested that the accusations were the work of the Gore campaign.
A federal appellate judge, Gilbert S. Merritt of the United States Court of Appeals for the Sixth Circuit, said he saw a serious conflict of interest for Justice Thomas in deciding a case that could throw the election to Governor Bush.
"The spouse has obviously got a substantial interest that could be affected by the outcome," he said in an interview from his home in Nashville. "You should disqualify yourself. I think he'd be subject to some kind of investigation in the Senate."
Judge Merritt, who has long association with the Gore family and was considered a leading contender for the Supreme Court early in the Clinton Administration, said he would not launch a formal complaint against Justice Thomas.
But he urged Justice Thomas to remove himself from the case in order to prevent any violation of a federal law — he cited Section 455 of Title 28 of the United States Code, "Disqualification of Justices, Judges or Magistrates" — that requires court officers to excuse themselves if a spouse has "an interest that could be substantially affected by the outcome of the proceeding."
Judge Merritt offered his views about Justice Thomas after someone in the Gore campaign provided The New York Times with his name and telephone number. Judge Merritt said he had had no direct contact with the Gore campaign.
Kathy Arberg, a spokesman for the Supreme Court, said she had no comment on the accusations of a conflict of interest. The Court has also been unwilling to comment on a suggestion from Gore campaign aides that Justice Antonin Scalia should consider recusing himself because his son works for a firm that represents Mr. Bush.
The son, Eugene Scalia, is a partner in the Washington office of Gibson, Dunn & Crutcher. Another partner, Theodore B. Olson, argued Mr. Bush's case before the Supreme Court today.
Referring to her husband, one of the court's most conservative and taciturn members, Mrs. Thomas said, "We don't talk about Supreme Court business. Clarence just isn't the kind. He protects me. We have our separate professional lives."
On Dec. 4, Mrs. Thomas sent an e- mail message to members of the House and Senate committees on government oversight seeking résumés for the presidential transition. She directed would-be applicants to forward their résumés along with a history of political activities or references to an associate at the foundation.
Mrs. Thomas said tonight that her recruitment efforts were bipartisan and not on behalf of the Bush campaign.
"The Bush campaign would be as surprised as I was by any implication that I was working with them," she said.
Mrs. Thomas acknowledged, however, that her search was likely to generate more interest among Republicans, because of the foundation's conservative orientation.
Copyright 2000 The New York Times Company