William B. Turner
Liberals and progressives are almost as bad about jumping on any passing bandwagon without thinking carefully as are “conservatives,” although “conservatives” see conformity as a virtue, so they think jumping onto bandwagons is a good idea.
The latest ill considered liberal bandwagon is the idea of impeaching Supreme Court justice Clarence Thomas. This is a very bad idea for multiple reasons.
Thomas is a very bad Supreme Court justice. He is a vocal opponent of affirmative action programs that might benefit his fellow African Americans because he claims that they leave their supposed beneficiaries susceptible to the suspicion that they are less than fully qualified.
This would be funny, but it isn’t. Thomas himself is the epitome of the less than fully qualified affirmative action beneficiary. One has trouble imagining how he won admission to Yale law school, much less completed the degree, without the benefit of affirmative action. He is really not very smart. He takes the position that the Eight Amendment to the Constitution – the one that prohibits “cruel and unusual punishments” – does not apply to the conditions of incarceration. Feel free to ask the blindingly obvious question, “what, then does it apply to, Justice Thomas?” Only the sentence, not the conditions under which the convict serves the sentence. So, presumably, the death penalty for shop lifting might count as cruel and unusual, or cutting off the offender’s hand, as some nations apparently still do, might qualify, but suffering apparently literally any amount of physical abuse by prison guards (the sort of cases that most often come up in the Supreme Court under the Eighth Amendment) cannot, by definition, in the addled brain of Justice Thomas, amount to “cruel and unusual punishment.” Happily, only he and Justice Scalia have ever adhered to this absurd, inhumane position.
Then, as for winning nomination to the post of Supreme Court justice from Republican president George H.W. Bush, the elder president Bush, the seat opened when the distinguished Thurgood Marshall, the nation’s first African American Supreme Court justice, announced his retirement. Marshall had an impressive career as a highly accomplished civil rights litigator working for the National Association for the Advancement of Colored People (NAACP) before Lyndon Johnson nominated him to the Supreme Court. He really earned the job.
His retirement put Republicans in a pickle. Nixon had taught them that they had to be subtle about their racism and at least pay lip service to the ideal of African American equality, the rule that Donald Trump chose to ignore. To replace the first African American Supreme Court justice, they had to find another African American, but he (!) had to be a Republican. Yet African American Republicans were thin on the ground.
Here was Thomas, who had figured out long before that being the token African American Republican could be a cushy job, since Republicans have low expectations of African Americans in general and they don’t like government, so they don’t want their appointees to do too much.
He was the perfect choice! That appointing the unqualified Thomas to replace the highly esteemed, hugely qualified Marshall was an insult to Marshall and to every highly qualified African American in the country mattered not at all to the Republicans.
Then, of course, Thomas’ confirmation hearings became a zoo when Anita Hill, a young African American woman, stepped forward and alleged that Thomas had harassed her sexually on multiple instances when they worked together at federal agencies. Republicans were gleeful at the opportunity to heap calumny and invective onto a black woman. Republicans think all black women are sluts anyway, so they were only too happy to have the opportunity to call a specific black woman that, even in the absence of any good reason to think that Ms. Hill actually was a slut. But good “conservatives” never let the absence of evidence slow them down a whit when they see the chance to score cheap political points.
Apparently Thomas’ history of sexual harassment is the predicate for impeaching him.
This alone makes no sense. The Constitution clearly defines criminal conduct as the sole basis for impeachment. Many people may think, perhaps rightly, that sexual harassment should be a criminal offense, but it is not. As a legal matter, it exists only as the result of choices the Supreme Court has made about how to interpret the prohibition on employment discrimination because of sex in the 1964 Civil Right Act.
One might wish to claim that Thomas lied to Congress when he denied having harassed Hill, potentially a crime, but this would be impossible to prove. First, as to the occurrence of the harassment, which one would first have to prove to carry the argument that denying it was lying about it, that takes right back to the original debate, which boiled down to her word against his. Then there is the problem of proving that Thomas lied when he denied it. He may very well believe with all his heart that he never engaged in any sexual harassment at all. Men who engage in sexual harassment are not often known for their intelligence or self awareness.
In practical terms, it may well be the case that any thinking person who reviewed the original debate would conclude that Hill was telling the truth about the harassment, for all of the usual reasons, but the problem is that at an impeachment trial, one must convince two-thirds of Senators. Democrats have introduced resolutions to impeach the so called president twice now, with no action by the Republican Speaker of the House, Paul Ryan. Ryan is not going to advance any articles to impeach Thomas. He likes Thomas for the same reason that he likes Trump – both are reliable rubber stamps for the noxious Republican agenda.
They ain’t gonna impeach Thomas.
Even if they would, we do not want to create another vacancy on the Supreme Court for the so called president to fill. To some extent, as with Gorsuch, it would be no net loss to replace one conservative justice with another conservative justice, but in Thomas’ case, it is possible to go from bad to worse. Thomas is pretty much inert. When Scalia was alive, he just parroted what Scalia said for the most part. It is possible that his replacement would come up with his own, wacky, “conservative” ideas that would make Thomas look like a boy scout.
Thomas is a horrible justice who should never have acceded to the seat to begin with, but sometimes, one is better off sticking with the evil one knows rather than risking some new, unknown evil.
Impeaching Thomas is both impossible and undesirable. We have bigger fish to fry.