The revelations that Virginia Thomas exchanged at least 29 (known) text messages with former White House chief of staff Mark Meadows, urging the disruption of the November 2020 election results favoring President Joe Biden, have sparked a conflict-of-interest scandal involving the Supreme Court, where her husband Clarence Thomas is an associate justice.
Justice Thomas’ involvement in many election-related issues, notably his lone vote to block the Jan. 6 committee from seeing White House materials essential to its probe of the Capitol disturbance, has prompted demands for ethical changes at the court – as well as his resignation.
Given the improbability of Thomas admitting misconduct, legislators seeking to hold him responsible for jeopardizing the court’s impartiality and credibility have a more severe option: impeachment.
It’s too early to say if impeachment is substantively warranted in the absence of further information about Thomas’ probable participation in his wife’s attempts. After two unsuccessful efforts to convict former President Donald Trump on impeachment allegations, not to mention former President Bill Clinton’s acquittal prior to that, impeachment as a remedy for wrongdoing in office has largely become outdated. Democrats in Congress are so far hesitant to go down this politically risky road, but the precedent exists, and it is worth analyzing as fresh damaging revelations about Virginia Thomas’ quest to reverse the election surface.
Over the course of the country’s history, 15 federal judges have been impeached and eight have been removed from office; others have resigned in the aftermath of controversy. So one thing is certain: unlike for presidents, there is enough precedence for impeaching federal judges.
Despite the fact that no Supreme Court judge has ever been removed in this manner, there have been two attempts. Thomas is not exempt from this constitutional remedy just because he sits on the nation’s highest court.
Furthermore, the criterion for removing judges is probably lower than that for presidents. To be clear, Article I’s reference to “Treason, Bribery, or other high Crimes and Misdemeanors” governs both judges and presidents — as does the Constitution’s two-step procedure, in which articles of impeachment pass the House of Representatives with a simple majority vote, and conviction in the Senate occurs after a two-thirds supermajority trial.
The supermajority requirement assures that Thomas will very definitely never be removed from office, no matter how bad the facts become after an inquiry, since it is impossible for Senate Republicans to vote against Thomas and give Biden another Supreme Court candidate.
However, Article III of the Constitution adds a specific criteria for federal judges to preserve their employment, stating explicitly that they “shall hold their Offices during good Behavior.” When it comes to judges, “high Crimes and Misdemeanors” should be interpreted with this context, since the Constitution seldom provides such specific signals as to the force and meaning of its concise text.
During an investigation of the behavior of Associate Supreme Court Justice William O. Douglas by a special subcommittee of the Judiciary Committee in 1970, Congress looked closely at the grounds for impeaching federal judges. At the request of President Richard Nixon, then-Republican House Minority Leader Gerald Ford advocated for Douglas’ impeachment.
Conflicts of interest and political leftism fanned the fires of unrest, rebellion, and revolution, according to Ford. This comment was triggered by Douglas who sold an article to a magazine and did not recuse himself when a libel case against it later reached the Supreme Court and, separately, had been paid to run a foundation whose namesake allegedly had criminal associations. The majority-Democratic committee decided along party lines to take no action after a six-month probe.
However, the committee did create a comprehensive report that aided in clarifying the criterion for removal. It expressed an opinion on the conduct for which judges may be impeached, either criminal activity (either in connection with their judicial job or privately) or abuse of public responsibility.
The report also highlighted 42 U.S.C. 455, the federal law regulating federal court recusals. “Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned,” it still says.
According to its words, this legislation applies to Supreme Court judges, yet there is no way to enforce it short of impeachment.
Those who argue there is no rule of behavior for the Supreme Court may be missing this.
The statute goes on to say that a justice should recuse himself “[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding” or “[h]e knows that he … or his spouse has [an] interest that could substantially be affected by the outcome of the proceeding.”
Ginni Thomas is well-known for her far-right activities. Earlier this month, Thomas informed an interviewer that she attended a “Stop the Steal” event in Washington on January 6, despite the fact that she was freezing and had to leave before the Capitol was stormed. In December, she co-signed a letter urging House Republicans to oust Reps. Liz Cheney (R-WY) and Adam Kinzinger (R-IL) for their participation in the House Select Committee probing the Jan. 6 Capitol assault. The hypocrisy is ripe.
Part of a trove of documents Meadows gave the committee were the leaked texts from Ginni, and they are especially troubling.
Three days after the election, she texted Meadows: “Do not concede. It takes time for the army who is gathering for his back.” And later: “Make a plan. Release the Kraken and save us from the left taking America down.” On Nov. 10, 2020, Thomas texted Meadows: “Help This Great President stand firm, Mark!!! … You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.” In another note responding to Meadows’ characterization of the election as a “fight of good versus evil,” she texted: “Thank you!! Needed that! This plus a conversation with my best friend just now. … I will try to keep holding on. America is worth it!”
The legislative branch must thoroughly examine Thomas’ apparent participation in the subject matter of the Jan. 6 committee’s work. The committee has already indicated that it intends to interrogate Ginni Thomas and may perhaps call her husband to testify.
Although a supermajority vote isn’t necessary, political integrity is. This is possibly the most important responsibility the United States Congress has ever faced: safeguarding the American system of governance itself.