Since the June 25 ruling overruling the 1973 decision in Roe v. Wade, over one million Americans have signed petitions demanding the impeachment of Associate Supreme Court Justice Clarence Thomas. Thomas, the second African American to serve on the nation’s highest court, has been the subject of controversy since his 1991 Senate confirmation hearings where allegations of sexual harassment were lodged against him by Anita Hill, hearings Thomas referred to as a “high-tech lynching.”
Since his ascension to the bench, Thomas has consistently made decisions that have been detrimental to the rights of the people of this nation — especially Black, brown, and poor people. They have often been so egregious that Thomas’ predecessor, Justice Thurgood Marshall, has likely turned over in his grave several times.
The problem is that there has never been a Supreme Court Justice — all of whom are appointed for life— removed from office.
In the history of the United States Supreme Court, only one justice has been subjected to impeachment proceedings. That Justice was Samuel Chase — not to be confused with Ohio’s Salmon P. Chase. The charges against Chase, brought in 1804, grew out of disputes between the Federalist Party, of which Chase was a member, and the Jeffersonian Republicans. Historians generally agree that Chase was the victim of a political witch hunt, but his acquittal established the principle that federal judges can be removed only for indictable criminal offenses, clarifying Article III, Section 1 of the Constitution that provides that federal judges shall hold office for life during good behavior.
But the question is: What is an indictable offense and what is good behavior?
Associate Justice Abe Fortas, appointed by President Lyndon Johnson in 1965, resigned in 1969 after allegations surfaced that he had accepted a retainer from the family foundation of a Wall Street financier. With threats of impeachment looming, Fortas resigned.
In the history of the federal judicial system, only 15 federal judges have been impeached. Of those 15, eight were convicted by the Senate, four were acquitted by the Senate, and three resigned before an outcome at trial. Those impeached in the 20th century were removed based on allegations of income tax evasion, bribery and perjury. In 2009 a Texas judge was removed due to charges of sexual assault, obstructing an investigation, and making false and misleading statements. Clearly not good behavior.
In the late 1930s President Franklin Roosevelt wanted to remove Justices of the Supreme Court who struck down major sections of his New Deal programs. He wanted to add additional justices — his so-called court-packing scheme. The plan went nowhere and was one of FDR’s major defeats.
The current demands for Thomas’ removal ratcheted up based on the recognition of his growing influence among the newly appointed justices and his concurring opinion in the decision overturning Roe. Thomas asserted that many prior decisions of the court, like those involving gay marriage and the right to privacy, which could include the right to obtain contraceptives, were up for reconsideration. Of course, he failed to mention that perhaps the court could reconsider the 1967 decision of Loving v. Virginia. A reversal of that decision would make Thomas’ marriage to a Caucasian woman illegal.
But those seeking Thomas’ removal focus specifically on the January 2022 decision of the Supreme Court that set in motion the release of White House documents to the January 6 committee. Donald Trump wanted them blocked. Clarence Thomas, the lone dissenter, voted to keep the records from public view.
The conflict for Thomas was that his wife — longtime conservative activist Ginni Thomas — was actively urging the White House to overturn the presidential election results both leading up to January 6 and after the deadly insurrection. The fact that Thomas didn’t want the documents released makes inquiring minds wonder if he was objecting because he didn’t want his wife’s involvement revealed and how much influence she exerted over his decision. This becomes particularly significant considering the growing evidence of Ginni Thomas’ involvement in attempted coup.
In most state courts parties can file an affidavit of prejudice against a judge. Such motions seek the removal of a judge because he or she may have a bias for or against one side or a personal interest in the outcome of the case. The motions are heard by a higher court, usually by the Supreme Court of the state, and a decision is made as to whether the judge should be removed.
There is no such procedure in the Supreme Court of The United States. It’s left up to the Justices’ integrity. But there are precedents and Justices with integrity. Justice Breyer routinely recuses himself from cases in which his brother, also a federal judge, participated. Judges traditionally recuse themselves if they were involved in a case as a judge or attorney in an earlier phase of the proceedings or have some personal interest in the outcome. Justice Sonia Sotomayor recently recused herself from a case because of her friendship with one of the parties. The usual standard for judges in issues of recusal is whether there is an appearance of impropriety.
If a House committee establishes enough evidence to find that Thomas acted improperly, there would be a vote in the House to impeach him. If passed, the matter would then be sent to the Senate for trial, with the Senate acting as a jury. Ironically that trial would be presided over by Chief Justice John Roberts.
The decision as to whether to remove Thomas would be in the hands of the Senate.
Current polling shows that only 25% of Americans have faith in the Supreme Court — which means 75% don’t. Our independent tripartite system of government is based on checks and balances between three equal branches of government. Our current system is out of sync, with the conservative majority of the Supreme Court ruling the country. Our only solution is to vote Democratic and give power to the other two branches of government to overrule some of the right-wing conservative decisions of the Supreme Court.
You have the key to fix it. It’s in the ballot box in November and every election thereafter. So please vote! Find out who’s on the ballot and register to vote if you haven’t already done by googling “board of elections” and your country name. Go here for the Cuyahoga County BOE.
In the 1960s, billboard and bumper stickers across the nation carried the message — Impeach Earl Warren. Now it’s time for a new one. Impeach Clarence Thomas! And I have plenty of room on my bumper and am willing to pay for a billboard.
3 Responses to “Impeaching Clarence Thomas – A Great Idea but Not So Fast by C. Ellen Conally”
Mel Maurer
Thanks for you insights on this issue. They beg the question on this and other “protections” (25th amendment), what good are the protections if they are so rarely used.
Jerry Dolcini
Thank you, Ms Connally for all your efforts to provide justice and enlightenment for our greater Cleveland area. I grew up in segregated Cleveland ( Ohio City ) in the 1940’s and 50’s and through playing baseball I met my first Black friend, Howard Jennings, who became a victim of our racist judicial system at that time. His story should be known.
Cindy Marx
Thank you Judge Connelly for standing up for democracy. I agree, that we need to enhance both the House and Senate with Democrats who uphold the ideals of the Constitution and give the power to the Biden administration to move his agenda forward. We all must vote in the primary on August 2nd and vote for Democrats in November to give the power back to President Biden that he deserves.