Reviews | How to Impeach a Supreme Court Justice

In the country’s history, 15 federal judges have been impeached and eight removed from office; others resigned following a scandal instead. So one thing, at least, is clear: unlike presidents, there are many precedents for firing federal judges by impeachment. Although no Supreme Court justice has ever been removed this way, there have been two attempts. Thomas is not immune to this constitutional challenge simply because he sits on the highest court in the land.

Moreover, the standard for the removal of judges is arguably lower than that of presidents. Certainly, Article I’s reference to “treason, bribery, or other serious crimes and misdemeanors” governs judges and presidents – as does the two-step procedure outlined in the Constitution, under which Articles of impeachment are passed by the House of Representatives. majority vote, and conviction in the Senate comes after a trial by a two-thirds supermajority. The supermajority threshold ensures that Thomas would almost certainly never be removed from office, however ugly the facts after investigation, because it is inconceivable that Senate Republicans would vote against Thomas and give Biden another choice on the Supreme Court. .

But Article III of the Constitution injects a separate standard for federal judges who retain their employment, expressly providing that they “shall hold office during good conduct.” Arguably, “high crimes and misdemeanors” should be read with this gloss when dealing with judges, for the Constitution rarely offers such definite clues as to the direction and meaning of its terse prose.

The grounds for dismissal of federal judges were thoroughly examined by Congress in 1970, during an investigation by a special subcommittee of the Judiciary Committee into the conduct of Associate Justice of the Supreme Court William O. Douglas. At the behest of President Richard Nixon, then-Republican Minority Leader Gerald Ford called for the removal of the famous liberal Douglas. The allegations included conflicts of interest (Douglas sold an article to a magazine and did not recuse himself when a defamation case against him later went to the Supreme Court and, separately, had been paid to run a foundation whose namesake would have criminal associations), and political leftism (recent book by Douglas, Rebellion Pointssaid Ford, “has fanned the fires of unrest, rebellion and revolution. After a six-month investigation, the majority Democratic committee voted along party lines to do nothing.

But the committee produced a lengthy report that actually helped clarify the standard for removal. It has ruled on the behaviors for which judges can be dismissed, ie for criminal behavior (in relation to their judicial function or in a private capacity) or for abuse of public duty. The report also cites the federal law governing federal court challenges, 42 USC § 455. It still provides: “Every judge, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned. By its terms, therefore, this law applies to justices of the Supreme Court, although there is no way to apply it short of impeachment. (Those who claim the Supreme Court has no code of conduct can ignore this.) The law goes on to state that a judge must recuse himself”[w]here he has a personal bias or prejudice regarding a party, or personal knowledge of disputed evidence regarding the proceeding” or “[h]We know he… or his spouse at [an] interests likely to be substantially affected by the outcome of the proceedings”. (Emphasis added.)

Ginni Thomas’ far-right activism is well known. Earlier this month, Thomas told an interviewer that she attended a Jan. 6 “Stop the Steal” rally in Washington, although she says she was cold and left before the Capitol is pierced. In December, she co-signed a letter calling on House Republicans to kick out Rep. Liz Cheney (R-Wyo.) and Rep. Adam Kinzinger (R-Ill.) simply because they joined the House Select Committee investigating the January 6 attack. on the Capitol. etc

The leaked texts, which were part of a treasure trove of documents that Meadows gave to the committee, are particularly troubling. Three days after the election, she texted Meadows: “Don’t back down. It takes time for the army to gather for his back. And later: “Make a plan. Free the Kraken and save us from the left that is bringing America down. On Nov. 10, 2020, Thomas texted Meadows, “Help this great president stand firm, Mark!!! … You are the leader, with him, who defends American constitutional governance on the brink. Most know that Biden and the left are attempting the greatest heist in our history. In another note responding to Meadows’ characterization of the election as a “fight of good versus evil,” she wrote, “Thank you!! Need this! This plus a chat with my best friend just now. hour…. I’ll try to keep going. America is worth it!

If Ginni Thomas was simultaneously discussing these efforts with her husband (they would refer to themselves as “best friends”), it means, first, that Clarence Thomas – at a minimum – was aware of the concerted efforts to thwart a legitimate presidential election on factual grounds. erroneous and did not let it be known.

Second, and worse, the texts call into question the motives behind Thomas’s votes in a number of court cases relating to the 2020 election. Thomas and Judge Samuel Alito were the only two dissenters in the failed attempt by the Texas Attorney General Ken Paxton to file a lawsuit seeking to overturn election results in four other states. (The problem with this lawsuit, in part, was that there is no legal cause of action for one state to reach out and nullify votes in another state; so the suggestion that Thomas was just enforcing established law is questionable.) Thomas also dissented at the length of the court’s refusal to upset Pennsylvania’s acceptance of mail-in ballots that arrived after Election Day, calling the majority’s decision ” inexplicable”. And most disturbingly, Thomas was the only judge to object — without explanation — to the court’s decision supporting the National Archives’ release of Trump administration documents to the select committee. (Judge Brett Kavanaugh wrote a separate statement, noting that there may be circumstances in which a former president, here Trump, could assert presidential communications privilege over the contrary posture of a sitting president.) compelling question is whether Thomas had inappropriate ulterior motives. when he voted in these very important cases.

Federal judges have been impeached and removed for transgressions that, while serious, seem far less objectionable because they had no bearing on the viability and stability of American democracy. This contrasts sharply with what could amount to legal cover-ups by Thomas for his wife’s activities and an apparent complacency about the events leading up to the January 6 insurrection.

John Pickering was removed from office in 1804 from a federal trial court for mental instability and intoxication. Robert W. Archbold was impeached in 1912 and dismissed in 1913 from a position on the court of appeals for having an improper financial relationship with litigants. Halsted L. Ritter was impeached and dismissed from the Florida District Court in 1936 for showing favoritism in appointing bankruptcy receivers and practicing law from the bench. More recently, in 2010, G. Thomas Porteous, Jr. lost his seat in the U.S. District Court for the Eastern District of Louisiana for accepting bribes and committing perjury.

The only Supreme Court justice to be successfully impeached was Samuel Chase in 1804, accused of arbitrary and oppressive conduct during trials (by then the Supreme Court conducted trials; it no longer does ). The Senate acquitted him. In 1969, after President Lyndon B. Johnson nominated him to replace Earl Warren as Chief Justice, Associate Justice Abe Fortas resigned from the court under threat of impeachment. Although conservative senators ostensibly obstructed Fortas’ appointment to the post of chief justice on the basis of his accepting a $15,000 fee to attend college seminars, he was the subject of a scrutiny for his close relationship with Johnson while in court. If Congress investigates today’s scandal more deeply, Thomas’ career could also be in jeopardy – even if formal conviction and removal are a practical impossibility.

Also, keep in mind that his colleagues in the court’s conservative majority could not “save” Thomas if Democrats managed to pass impeachment clauses. The question of what behavior warrants the impeachment and removal of a Supreme Court justice must be resolved — if at all — in Congress alone. The meaning of “good conduct” or “serious crimes and misdemeanors” with regard to the specific obligations of judges would undoubtedly be considered as a “political question” not justiciable, that is to say too close to home.

At a minimum, Thomas’ apparent involvement in the subject matter of the Jan. 6 committee’s work needs to be fully investigated by the legislature. The committee has already flagged a plan to interview Ginni Thomas and may also seek testimony from her husband. The Senate Judiciary Committee has just held confirmation hearings on the nomination of Justice Ketanji Brown Jackson to fill the seat of Justice Stephen Breyer. He could also take on the task of determining whether a sitting Supreme Court justice compromised his solemn vow to uphold the Constitution in the peaceful and legal transfer of presidential power on January 6, 2021. A decision in either other body to undertake a formal investigation wouldn’t require a supermajority vote, mind you — just political courage around what is perhaps the most solemn task the U.S. Congress has ever faced: the protection of the American system of government itself.


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