Back in July, there was talk on the left about the prospect of impeaching future-Justice Kavanaugh. There was talk about Trump’s nomination being impermissible due to him being an “unindicted co-conspirator.” And now there is talk of removing Justice Thomas from the bench.
It is patently obvious that this is a desperate cry for help from the left. The left is literally shaking at the notion of the Supreme Court being reduced to an objective interpreter of law. The left longs for the day when judicial activists would remake the nation and its law in favor of progressive policy aims. They are now faced with the reality of Scalia’s seat being preserved by Gorsuch. They are now facing the possibility of Kennedy’s seat being converted by Kavanaugh. They may face the possibility of losing Ginsburg’s seat.
All of this is frightening to them as the liberal utopian nightmare will come to an end.
The thought of abortion being legal up to the age of thirty in California or Illinois and the thought of it being *gasp* illegal in Texas or Indiana is too much to handle. Heaven forbid states making their own decisions.
So what do they do? Trump adds two, the left will subtract two via impeachment.
If only Neil Gorsuch’s father had used a racial slur thirty years ago, then the left could impeach Gorsuch too! It’d be the trifecta, no Gorsuch, no Kavanaugh, and no Thomas! Maybe Alito ate at Chick-Fil-A once.
The framers made it clear that justices were not to be removed for capricious reasons. There was some debate as to the scope of the judiciary’s insulation from the political processes and accountability.
The Anti-Federalists believed that “there is no authority that can remove them from office for any errors or want of capacity.” They lamented that wickedness masked by error would insulate judges from political and legal accountability.
Hamilton argues that such accountability would give “scope to personal and party attachments and enmities, [rather] than advance the interests of justice or the public good.”
If Supreme Court justices were to be removed for anything other than law breaking, we’d be removing them all the time. While the definition of “during good behavior” is malleable, both the anti-federalists and later congresses understood it to match the criteria mentioned in Article II. Judges are considered civil officers. They can only be removed for misconduct.
There is an excellent article that delves into this subject, though it was written in the context of judicial mental capacity.
So what does this mean for Justice Thomas?
Barbara L'Italien, a state senator running in a crowded field to replace retiring Rep. Niki Tsongas, is declaring her intention to file an impeachment resolution against Thomas as part of an effort to address sexual assault if elected to Congress.
Thomas' 1991 confirmation hearing was marked by sexual harassment allegations against him relating to his conduct at several federal agencies. L'Italien said she would file the impeachment resolution against Thomas for perjury during his confirmation hearings to the Supreme Court, insisting there is "considerable evidence that Thomas lied under oath" about his professional conduct, namely claims that he sexually harassed Anita Hill.
L’Italien added “There is an elephant in the room for Congress in the #MeToo era. Our leaders have to start talking about it. Two of the most powerful men in the country have been credibly accused of sexual crimes and gotten away with it.”
There are several issues to be addressed.
1: Assuming everything is true, Justice Thomas is insulated from impeachment because the conduct did not occur while he was on the bench. It is out of Congress’ hands to filter out former lechers, lushes, and any assortment of shady characters once they have been confirmed. This is why they serve during “good behavior.” It is not contingent upon past offenses, prior to serving in that capacity. L’Italien has no power here. If Thomas is currently talking dirty to RBG, then by all means, have him impeached.
2: Assuming everything is true, Justice Thomas committed no crime, so she is wrong there, but Justice Thomas was never accused of sexual harassment either. According to an article from CBS in 1999, “[Anita] Hill herself did not accuse Thomas of outright harassment.” According to FindLaw, sexual harassment is a tort i.e. a civil offense. The victim can sue for damages or a remedy. Sexual harassment, by definition, is not a criminal offense. Conduct is only criminal when it reaches the level of sexual assault. Both of which, were never alleged.
3: We cannot assume it’s true. L’Italien makes the claim that Thomas perjured himself, when there are a number of factors that lead one to conclude that Thomas was the credible party, not Hill. The DailyWire had this piece two years ago. It says “the Left painted Thomas as a misogynistic monster despite the glaring contradictions, lies and lack of evidence to support such a narrative. The U.S. House and Senate dismissed the baseless accusations presented by Hill, confirmed Thomas to the court, and the public largely viewed Hill as discredited.”
And in my best rendition of whataboutism, I find it interesting that she is using perjury as her vehicle of impeachment. We all know that perjury is the go-to for impeachment these days. Get someone under oath, get them to lie, bam, impeached! It’s why Clinton was impeached. But here, the standards of the left fall apart. What happened to “everyone lies about sex”? It’s okay for Bill to lie about sex with an intern WHILE he was president, but not okay for Clarence to lie about having inappropriate conversations BEFORE he was a judge? Perjury is still a crime by the way.
But even that is unsatisfactory. My first two points, plus my whataboutism, reflect a problem with how the left goes about making claims. It is impossible to dip down into the muck and simply reply with “who cares” or “so what.” To argue that there is no case because the conduct doesn’t meet a certain standard is to be a “harassment apologist.” But to deny the accusation altogether is to ignore the victims of sexual assault. It’s a no win scenario predicated on the firm belief that Joe Biden’s “I believe Anita Hill” is sufficient to ward off any challenges to the claim. Well creepy Uncle Joe says it’s true so it must be true.
I don’t think L’Italien believes her own garbage. She is doing this for practical reasons, but staking a moral claim plays well with the base. There is only one goal: undo Trump’s accomplishments and prevent any further success, by any political means necessary.
Thomas has always been a threat to the size of government and to the hegemony of the federal government over states and individuals. It is only natural that they would seek to have him removed from office.
I can hear the protesters…“Impeach now, we don’t care how.”