Our recent suggestion that Justice Clarence Thomas consider a presidential run in 2012 has caused some chatter in the legal and political blogosphere (as well as the ATL comments section, where the commenter “President Obama” took all comers). Despite this healthy buzz, CT has not yet indicated any plans to slap a campaign poster on his RV this summer.
We submitted inquiries about our proposal to Justice Thomas, through the Supreme Court’s Publication Information Office, and to Mrs. Thomas, through Liberty Central, her new conservative nonprofit. Neither had any comment. We hear through the grapevine, however, that the idea of “Thomas for President” has been proposed to the justice by clerks in years past (and not embraced by the justice; apparently His Honor is content to remain a justice, despite his conspicuous silence from the bench).
Law professors had interesting things to say about our idea of a Thomas presidential run. George Mason law professor Ilya Somin took us very seriously (perhaps a little too seriously). Northwestern law professor Steven Lubet pointed out that Charles Evan Hughes isn’t the only SCOTUS justice who has previously given up a seat at One First Street for a shot at the Oval Office. And although we suggested that Thomas shed his robes to make his run for the Republican presidential ticket, UCLA law professor Stephen Bainbridge noted that CT could keep them on…
In our whimsical Washington Post piece suggesting Thomas disliked his SCOTUS perch and should consider a POTUS run, we cited historical precedent for such a move:
Thomas wouldn’t even be the first to attempt this in the reverse order: Charles Evans Hughes, appointed to the court in 1910, resigned in 1916 to run as the Republican nominee for president. He lost to Woodrow Wilson by a mere 23 electoral votes.
Northwestern Professor Steven Lubet, who has a book coming out this fall about courtroom resistance to the Fugitive Slave Act of 1850, emailed us to note two justices from the 19th century who made failed runs for their parties’ presidential nominations:
In addition to Hughes, sitting Associate Justice John McLean (of Ohio) sought the Republican nomination in 1856, finishing second to John Fremont (he also got a handful of delegate votes on the first ballot in 1860). McLean is most famous for his strong dissent in the Dred Scott case…
Also, Salmon P. Chase attempted to obtain the Democratic nomination in 1868, while he was the sitting chief justice, although nothing came of the attempt.
Indeed, Thomas could do the same thing — attempting to get the nomination without casting off his robes — according to Stephen Bainbridge, in his critique of James Joyner’s argument that giving up a conservative Court seat to Obama would kill Thomas at the polls. Bainbridge wrote:
Joyner’s argument, however, assumes a prior I’m not sure is true; namely, that Thomas would have to resign from the court before being inaugurated. Granted, the federal code of judicial conduct says that “A judge should resign the judicial office if the judge becomes a candidate in a primary or general election for any office.” (Canon 5(B) at p. 16) On its face, however, the code does not apply to Supreme Court justices (see p.2). While Justices often voluntarily comply with the Code, I am unaware of any rule of ethics or law binding Thomas to comply with Canon 5 or some similar ethics code.
So I believe Thomas could remain on the court until at least the election is over. If he loses, he stays on the court. If he wins, he quits, the GOP senate caucus filibusters a lame duck Obama nominee (in an ideal world, of course, there will be a GOP majority in the Senate in 2012), and then Thomas gets to nominate his replacement.
In our reader poll, 63% of voters said Clarence Thomas should step down from SCOTUS and run for POTUS. How many of you would change your vote if the scenario didn’t involve Thomas stepping down?
The Clarence Thomas Presidential Run meme [Professor Bainbridge]
Clarence Thomas for President? [Volokh Conspiracy]
Clarence Thomas in 2012: Time for Another ‘Silent Cal’ in the White House? [Politics Daily]
Clarence Thomas for President? [Hit & Run / Reason]
Justice Clarence Thomas seems bored. Why doesn’t he run for president in 2012? [Washington Post]