Op-Ed: Justice Thomas' refusal to recuse himself is thumbing his nose at the law
Laurence H. Tribe and Dennis Aftergut
Wed, October 26, 2022 at 7:58 PM·4 min read

https://news.yahoo.com/op-ed-justice-thomas-refusal-235810353.html

There’s a sad lesson for the law and the country in Supreme Court Justice Clarence Thomas’ Oct. 24 stay of a federal appeals court’s order that Sen. Lindsey Graham (R-S.C.) comply with a subpoena to testify before a grand jury in Fulton County, Ga. The district attorney there is conducting a criminal investigation into the parties involved in trying to overturn the results of the 2020 presidential election.

In government, even Alexander Hamilton's “least dangerous" branch — the judiciary — becomes dangerous when there is no enforcement mechanism behind a law.

Title 28, Section 455 of the United States Code is the federal statute that applies to Thomas. It provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" or his spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."

The statute says "shall" — meaning, this is not discretionary. Congress has imposed on federal judges a mandatory duty to disqualify themselves if their impartiality might be reasonably questioned. It does not matter whether Thomas issued Graham’s desired stay or denied it; he wasn’t supposed to rule at all.