By Bill Blum
AP/Manuel Balce Ceneta
Of all the justices on the Supreme Court, none—not even the fulminating homophobic Antonin Scalia—deserves more consideration for impeachment than Clarence Thomas, and for reasons having nothing to do with Anita Hill.
But can a sitting justice really be removed from office, and if so, when is removal warranted?
The answer to the first question, of course, is a straightforward yes. Although the justices are appointed for life, their tenure is subject to “good behavior.” Under Article II, Section 4 of the Constitution, all federal officials—including judges—can be removed from office “on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”
Technically, the removal process consists of two steps. First, members of the House of Representatives adopt by a simple majority vote articles of impeachment, which read very much like a criminal complaint or grand jury indictment. Step two proceeds with a trial in the Senate, which has the power to convict on a two-thirds ballot. Ouster from office follows conviction automatically, and cannot be appealed.
More challenging by far is the second question, even with a justice as adrift on the constitutional fringe as Thomas. Impeachment is an extreme remedy, deliberately reserved by the Constitution for only the most desperate cases. It is also very difficult politically to engineer.
Only one Supreme Court justice in our entire history has been impeached. Samuel Chase was charged by the House on March 12, 1804, with eight counts of arbitrary and oppressive conduct while serving as a circuit judge in certain Sedition Act cases during an era when Supreme Court justices also held trials. An outspoken Federalist and supporter of John Adams, Chase was targeted by Thomas Jefferson and his Republican allies for increasing the scope of federal judicial authority to review acts of Congress and the executive. In a trial presided over by Vice President Aaron Burr that concluded the following March, the Senate acquitted Chase in all respects.
Apart from Chase, there have been 14 other impeachments of federal judges, resulting in eight convictions, three dismissals and one resignation before the commencement of trial in the Senate. The last judge to be impeached was G. Thomas Porteous Jr. of the Eastern District of Louisiana, a Clinton appointee who was convicted by the Senate and ejected from office in December 2010 for accepting bribes and committing false statements under penalty of perjury.
The annals of impeachment also include two failed attempts to expel the famed civil libertarian Supreme Court Justice William O. Douglas, the first in 1953 in response to Douglas’ issuance of a temporary stay of execution to Julius and Ethel Rosenberg, and the second orchestrated in 1970 by the Nixon administration over alleged financial improprieties. Alleged financial improprieties also forced Supreme Court Justice Abe Fortas to resign in 1966 rather than face impeachment for accepting a $20,000 annual retainer to provide advice to a foundation run by Wall Street financier Louis Wolfson.
This brings us back to the current court in general and specifically to Thomas. Not only has he been embroiled in serious financial controversies reminiscent of those that drove Fortas from the bench, but Thomas’ written opinions on topics as diverse as gun rights, abortion, capital punishment, affirmative action, voting rights, and the separation of church and state mark him as the most ideologically reactionary member of the court, even compared with Scalia.
The American people are growing increasingly fed up with the court’s overtly conservative direction, and they want to take action. According to a recent survey conducted for Democracy Corps, a nonprofit founded by longtime Clinton adviser James Carville and polling strategist Stanley Greenberg, Americans by a nearly two-to-one margin believe many of the court’s most critical 5-4 decisions are driven more by the political views of the justices than by sound legal analysis. An overwhelming 80 percent oppose the 2010 Citizens United ruling on election finance law and over half believe this term’s McCutcheon decision will lead to more political corruption. Equally important, substantial majorities favor ending lifetime judicial appointments.
So, are we prepared to take the next step after a lapse of more than 200 years and translate our profound disapproval of the present Supreme Court into an impeachment campaign against the court’s most egregious right-wing outlier? Unfortunately, the Democracy Corps poll didn’t ask the question, no doubt because there is absolutely no chance that the Republican-controlled House would ever hand down an article of impeachment against Thomas or, for that matter, any of the court’s four other conservatives.
Still, in recent years, several low-budget grass-roots petition drives calling for Thomas’ removal have been undertaken, including one circulated by Change.org that garnered nearly 38,000 signatures before closing in 2012. A new petition seeking to dump both Thomas and Scalia is being circulated by MoveOn.org.
Taken together, the petitions have charged Thomas with three impeachable offenses:
1. Disclosure Violations: For 13 years, Thomas failed to report his wife Ginni’s income on the mandatory annual financial disclosure forms that he signed under penalty of perjury, indicating that his spouse had no non-investment income when in fact she was steadily employed in high-level jobs as a policy analyst and conservative activist. According to Common Cause, Ginni—who is also a lawyer and a one-time aide to former House Majority Leader Dick Armey, R-Texas—received over $686,000 between 2003 and 2007 working for the Heritage Foundation. In 2011, claiming incredulously that he had misunderstood his reporting responsibilities, Thomas amended his financial disclosures, which can now be examined on the OpenSecrets.org website.
2. Conflicts of Interest: Thomas failed to recuse himself, as a result of Ginni’s political advocacy, on the Citizens United and Obamacare cases when they were argued before the Supreme Court. In 2009, Ginni co-founded Liberty Central, a tea party organization dedicated to repealing Obamacare. Seed money for Liberty was raised in part by means of a $500,000 donation from Texas real estate magnate Harlan Crow, a close friend and patron of the Thomas family and a supporter of conservative causes who stood to benefit from a favorable outcome of the Citizens United litigation. In 2013, Mother Jones’ David Corn reported that Ginni had joined Groundswell, a right-wing discussion group promoting a “30 front” public relations war against progressive causes.
3. Political Bias: Thomas gave a talk, the nature of which has never been disclosed, at a secret 2008 political retreat in Palm Springs, Calif., sponsored by the Koch brothers. Thomas later explained that his expenses for what turned out to be a four-day junket to the confab were paid by the Federalist Society. The justice’s close relationship with the Federalists persists unabated, as he highlighted the Society’s 2013 lawyers’ convention, sitting before an adoring crowd for a live onstage interview with ultraconservative federal appellate judge Diane Sykes.
In August, in response to the scandals surrounding Thomas, a group of 61 House Democrats introduced HR 2902, the Supreme Court Ethics Act of 2013. If passed, the bill would require the Supreme Court to promulgate a binding code of ethics defining outlawed conflicts of interest and prohibited activities similar to the canons of conduct currently in place for lower-court judges, but from which the Supreme Court is exempt.
As mild as the measure is—especially when at least an official pre-impeachment investigation of Thomas seems justified—HR 2902 is gathering dust in the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. In the meantime, Thomas and the conservative court majority continue with business as usual while the rest of us look on with dismay.
Impeach Clarence Thomas? Don’t count on it anytime soon.
AP/Manuel Balce Ceneta