Impeach Clarence Thomas and Remove Dianne Feinstein

Commentary from The Nation magazine

The controversies surrounding Clarence Thomas and Diane Feinstein are issues I’ve wanted to write about for quite some time. But, I thought, why should I write it when I couldn’t possibly do better than this editorial by D.D. Guttenplan, the editor of The Nation?

(Note: I’ve kept all the links from the original article for your further reading. Also, after The Nation’s editorial, I’ve added some commentary of my own.)

Although we commonly refer to justices on the federal bench as being appointed “for life,” Article III of the Constitution says rather that judges “shall hold their Offices during good Behaviour.” Violations of this standard, the Constitution stipulates, are determined via impeachment by the House and trial by the Senate. A total of 15 federal judges have been impeached—on charges ranging from drunkenness and mental instability to bribery, perjury, and treason. Eight were removed from office, including Robert Archbald, who in 1910 took his wife on a trip to Europe paid for by Henry Cannon, an officer of railroad and coal companies that sometimes had business before the court.

Archbald’s wife testified that Cannon was her cousin and that the two families frequently enjoyed traveling together. The New York Times described Archbald’s testimony, in which he admitted accepting the gifts but denied any impropriety, as “strong in his defense.” But the Senate felt otherwise, and he was convicted.

The corrupt relationship between Clarence and Ginni Thomas and the Texas billionaire and right-wing donor Harlan Crow clearly exceeds the standards set by Archbald’s impeachment. As ProPublica’s stunning investigation has revealed, Crow—who not only picked up the tab for luxury travel by the Thomases but also bought the justice’s childhood home(where his mother still lives, rent-free)—was a member of the founding committee of the Club for Growth, a trustee of the American Enterprise Institute, and a donor to other right-wing groups that have all filed amicus briefs with the Supreme Court. Thomas’s promise to amend his disclosure is as risible as a bank robber’s vow to give back the money.

Given his wife’s strenuous efforts to overturn the 2020 presidential election and the fact that he was the court’s lone vote against the ruling that forced Donald Trump to turn over documents to the National Archives, Thomas has also easily met the standard used to remove Judge Halsted Ritter. In 1933, Ritter was accused of accepting kickbacks and of tax evasion but was convicted only of conduct sufficient “to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the Federal judiciary.”

The relevant question, it would seem, is not whether Thomas is plausibly guilty, but whether the Democrats have the political courage to do anything about it. That’s a test congressional Democrats have already failed once—and at a time when the party had sufficient control of the House to easily approve articles of impeachment.

Now, of course, the Democratic Caucus has a better excuse for inaction, since Republicans control the House and the Senate remains unlikely to convict. But there is good reason to proceed regardless. As Representative Alexandria Ocasio-Cortez recently pointed out, Thomas’s corruption has reached “cartoonish” proportions. Her call for an independent investigation has been joined by Senator Sheldon Whitehouse and Representative Hank Johnson.

But Democrats will have to do much more than that if they want to be seen as anything other than a party of impotent hand-wringers. They’ll have to seriously pursue impeachment, which requires just a bare majority and is far from out of reach given the divisions among House Republicans.

Even without control of the House, Democrats lead Senate committees with enough power to compel testimony and inform the public about the scale of the corruption. Normally, the Judiciary Committee would be first in line.

But Dianne Feinstein’s mental incapacity—an open scandal currently hidden behind references to a case of “shingles” from which she is expected to recover—has deprived the committee of the majority vote needed not only to investigate Thomas but also to confirm President Biden’s nominees to the federal bench. Again, Democrats seem more disposed to make excuses than to take action. That, too, is a scandal.

It may well suit the party’s corporate-friendly, Wall Street–funded leadership to posture about its commitment to working people while failing to act—not just on Thomas but on student loan relief, voting rights, and abortion access. But voters won’t be fooled forever by politicians who don’t actually fight for them. If Democrats want to show they mean business, they could do a lot worse than cleaning house by removing Feinstein—and then impeaching Clarence Thomas.

Commentary from Ted Block

Full disclosure: I cheated. I did not reprint everything from The Nation’s story; I omitted the original sub-heading: We’ve booted Supreme Court justices for a lot less.

Why did I leave it out? Because it’s not true.

The opening paragraph includes this:

“A total of 15 federal judges have been impeached—on charges ranging from drunkenness and mental instability to bribery, perjury, and treason. Eight were removed from office…”

That excerpt is the editorial’s only reference to impeached and/or removed judges. Only one of those 15, Associate Justice Samuel Chase, was a sitting SCOTUS justice. He was impeached by the U.S. House of Representatives on March 12, 1804. The charges against him were “arbitrary and oppressive conduct of trials.” Chase was acquitted by the U.S. Senate on March 1, 1805.

So, if the “booting out” is referring to Chase, it’s somewhat disingenuous in that: a) he wasn’t “booted out; b) it happened 218 years ago; and c) in those intervening 218 years no other Supreme Court justice was booted out. (Or at least, I couldn’t find one.)

And, if the booting out references concern state Supreme Court justices, that’s simply not relevant; state justices and judges, “supreme” or not, are not part of the federal judiciary and, importantly, most state Supreme Courts have term and/or mandatory retirement limits. They are, unlike SCOTUS, not lifetime appointments.

In my mind, a more appropriate, in fact the most applicable subhead would have been:

Clarence Thomas: Emulate Abe Fortas and do the right thing – resign.

Abe who?

Abe Fortas, a lawyer and close personal friend of President Lyndon B. Johnson was nominated by Johnson as an associate justice of the United States Supreme Court in 1965. He was confirmed by the Senate in a voice vote ( oh my, how things have changed). Then, in 1968, Johnson nominated Fortas to replace Earl Warren as Chief Justice. That confirmation hearing did not go as smoothly.

Antisemitism likely played a role in the confirmation battle, during which Mississippi Democratic senator and chairman of the Judiciary Committee, James Eastland, reportedly said, “After [Thurgood] Marshall, I could not go back to Mississippi if a Jewish chief justice swore in the next president.” Ultimately, Johnson withdraw Fortas’ name.

But that nomination and the antisemitism encountered by Fortas is not the story here.

Fortas remained an associate justice, but in 1969, a scandal arose (there had been other Fortas impropriety scandals before). Fortas had accepted a $20,000 (equivalent to $148,000 today) retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas’s life (and then pay his widow for the rest of her life).

Wolfson was under investigation for securities violations at the time, and it was alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon. He asked Fortas to help him secure a pardon from Johnson, which Fortas claimed that he did not do. Although Fortas, unlike Clarence Thomas, recused himself from Wolfson’s case when it came before the Court, there was more to come.

In May 1969, Life magazine chronicled Fortas’s relations with Wolfson. The story’s revelations accelerated calls for Fortas to be impeached. Chief Justice Earl Warren and Justice Hugo Black wanted Fortas to resign not only to avoid impeachment hearings, but in order to maintain the integrity of the Court. (Are you listening, Chief Justice Roberts?). Fortas ultimately decided resignation would be best for him and for his wife’s legal career, particularly after Richard Nixon’s attorney general, John Mitchell, threatened to prosecute him, and potentially investigate his wife for tax evasion. (Are you listening Merrick Garland??)

Abe Fortas resigned from the Court on May 14, 1969.

Wolfson was convicted of violating federal securities laws later that year and spent time in prison.

As of this writing, Clarence Thomas is still an associate justice of the Supreme Court.

And, Harlan Crow continues to collect Nazi memorabilia while maintaining his “Garden of Evil” containing  a collection of stone and bronze statues of fallen communist leaders.