The Atlantic's Andrew Cohen has issued a startling new challenge: he believes that the public should investigate the constitutional theories of federal judges' spouses.
Of course, Cohen has one and only one judicial spouse in mind: the wife of (surprise!) Justice Clarence Thomas. Virginia Thomas has announced that she's starting a political advocacy group to "get the Constitution back to a place where it means something." Cohen wants more details -- specifically, he wants to know precisely where she stands on such constitutional issues as federalism and the enumerated federal powers:
These are now legitimate questions for the justice's better half, a government spouse who has just criticized her husband's co-workers in front of the whole world. She should answer those questions fully not just because the nation now has a right to know her mind on topics so closely connected to her husband's vital job. But because her answers will likely help us better understand the justice's mind as well. Does he see himself the same way, waging a mighty struggle each day against tyranny? Heroically striving with each ruling to keep the Constitution from dissolving into meaninglessness? Wouldn't you like to know these things about Justice Thomas?
Note Cohen's rhetorical sleight of hand: He tries to limit the arguments to the Thomases alone, "now" that Mrs. Thomas "has just criticized her husband's co-workers in front of the whole world." But Cohen's limitation is a non sequitur: If Cohen's fundamental concern is that the beliefs of a judicial spouse "will likely help us better understand the justice's mind as well," then doesn't that apply equally to all judges' husbands and wives? If anything, vocal spouses like Mrs. Thomas are already an open book -- the real danger would be spouses who keep a low public profile but try to exert influence undercover (so to speak).
That said, Cohen's logic is silly, if not offensive. Husbands and wives often disagree about politics and policy -- either in the big picture or in the details. What does Cohen's contrary argument imply, that Mrs. Thomas is mindlessly furthering Justice Thomas's policy views? (An echo, not a choice?) That's hardly charitable to Mrs. Thomas, or wives generally. Or does Cohen mean that Justice Thomas is just doing his wife's bidding? An equally silly accusation, but one that Justice Thomas is accustomed to. He's long been accused of ignorantly carrying out the bidding of supposed intellectual superiors, an accusation that Jan Crawford Greenburg thoroughly debunked years ago in her excellent Supreme Conflict.
But let it never be said that Cohen's timing isn't impeccable. Most pundits expect to see a Supreme Court vacancy in the next few months, which would be followed by another high profile nomination and confirmation process. Will Cohen demand that the Senate should question the nominee's husband, wife, or anyone else close to the nominee whose views "will likely help us better understand the [nominee's] mind as well?"
Come to think of it, where does Mrs. Cohen stand on the issue?