Twelve years ago, I penned a four-page memo laying out the case for impeaching Supreme Court Justice Clarence Thomas. My memo was forwarded to then-Sen. Hillary Clinton by a mutual friend and became public in 2015, when Clinton’s emails were released after the Russian hacking.
As far as I know, the memo was read and, understandably, set aside. But it’s worth revisiting now that public confidence in the high court, already at record lows, is at issue after the court stripped away the Constitutional right to abortion from tens of millions of American women.
I have a long history studying Clarence Thomas. When law professor and former Thomas employee Anita Hill came forward and testified to the Senate that he had sexually harassed her, I assailed Hill’s credibility and protected Thomas’ reputation in order to please my right-wing tribe in an article and a subsequent book written with the full cooperation of Thomas’ allies. Years later, after Thomas’ own close friends confided to me that they never believed him and that he indeed had a penchant for raunchy pornography ― a key proof point for Hill’s case ― I recanted my reporting, concluded that Thomas was guilty as charged, and publicly apologized to Hill.
The hook for my 2010 memo were new interviews, in the New York Times and other outlets, of Lillian McEwen, a romantic partner of Thomas’ during the time Hill worked for him. McEwen had informed the committee that she had relevant information about Thomas, but she was never called to testify. (Then-Judiciary Committee Chairman Joe Biden allowed the testimony of three other female corroborating witnesses for Hill to be similarly suppressed).
McEwen, a former prosecutor and judge, revealed that “pornography was just part of [Thomas’] personality structure,” and that he “frequented a store in Dupont Circle that catered to his needs.” Further, and more damaging, McEwen stated that Thomas brought talk of sex into the workplace. She said Thomas scouted women he worked with as sexual partners, and in one instance at work, told her he asked about a woman’s bra size. And yet, under questioning from Democratic Sen. Pat Leahy during the hearing, Thomas categorically denied any sexual discussion within the workplace with any woman, including Hill. This was a baldfaced lie.
Like presidents, justices and judges can be impeached on a majority vote of the House of Representatives and convicted by a two-thirds majority in the Senate. To my mind, McEwen’s interviews were smoking-gun evidence that Thomas had perjured himself to win Senate confirmation and therefore should face impeachment, even if the effort failed to remove him from office.
That was then. If Democrats had the fortitude now, they would take up impeachment in light of recent revelations that Thomas’ wife, Ginni, was an active participant in former President Donald Trump’s undemocratic and likely criminal pressure campaign to overturn the results of the 2020 election. All too often, Democrats do not know how to fight and will not do what it takes to win. In this case, impeachment is not only the right thing to do, it’s good politics for Democrats in this moment. The coming midterms will be won by motivating and energizing the Democratic base, which rightly despises Clarence Thomas, and swaying Democratic-leaning independent women in the suburbs, who overwhelmingly support the right that the de facto Thomas court just stripped away. The electorate turning out this year is already highly partisan; further polarizing it will only help Democrats.
Thus Democrats should immediately open impeachment hearings on Thomas ― complete with dramatic televised hearings ― and then vote to remove him from office, even if on a party-line vote. The effort will fall short in the Senate, but devastating political points will have been scored, and the Republicans will have been put on defense only weeks before the November ballot. President Biden, whose poll numbers are way underwater with the left flank of the party, should endorse the impeachment drive, signaling to the Democratic base that he regrets having misjudged the politics of the Thomas hearings in 1991. As in 1992, when a backlash against the Thomas-Hill hearings ushered a record number of women into office, Democrats should make 2022 the “year of the woman” again by attempting to correct the grievous mistake of confirming Thomas in the first place.
As a former right-winger turned Democrat, I often ask myself what my former allies would do strategically given a political opportunity. If the shoe were on the other foot, Republicans would not hesitate to impeach a vulnerable figure like Thomas; not only to punish him for past sins, but also to discredit with the public a host of spurious decisions undoubtedly coming down the line in the future from this radical 5-4 MAGA majority.
The facts are there. Recently surfaced texts and emails show that Ginni Thomas was in communication with the White House chief of staff and Arizona lawmakers, falsely arguing that the election was stolen and beseeching them to take wrongful actions to reverse it. Ginni Thomas also corresponded with lawyer John Eastman, the architect of the plot to reverse the election. In one communication, she mentioned having spoken to her “friend” about the election, a likely reference to her husband. In another, she wrote, “Make a plan...and save us from the left taking America down.” At the time, Ginni Thomas was serving on the board of a right-wing group called CNP Action, the political advocacy arm of the Council for National Policy, which was urging Republicans to try to keep Trump in power.
In January of this year, after Ginni Thomas had sent her zealous emails, Clarence Thomas was the sole dissenter in an 8-1 decision by the court requiring that the National Archives release Trump’s White House records to the House committee investigating the Jan. 6, 2021, insurrection. Given Ginni Thomas’ active involvement in the events leading up to Jan. 6 ― and especially since the 29-text exchange she had with then-White House Chief of Staff Mark Meadows in the weeks before appear to have been covered by the House document request ― Thomas should have recused himself from the case to avoid the appearance of impropriety. In other words, it looks like he was covering for his wife.
Federal law says judges and justices must recuse in cases where a spouse has “an interest that could be substantially affected by the outcome” and where their “impartiality might be reasonably questioned.” In the Archives case, Harvard Law Professor Laurence Tribe concluded Thomas broke that law.
The issue of Thomas and his failure to recuse with respect to his wife’s political advocacy has been raised before. In 2011, 74 House Democrats said Thomas was required by federal law to recuse himself from any appeals involving the Affordable Care Act, since Ginni Thomas was a highly paid lobbyist working for clients seeking to overturn the law. Thomas ignored the letter, and in a subsequent case joined the minority that would have struck down the law. Thomas also failed to recuse himself from the court’s Muslim travel ban decision in 2018 even though, according to the New Yorker, Ginni Thomas was paid $200,000 in 2017 and 2018 by the Center for Security Policy, which submitted an amicus brief supporting the ban.
By the same logic, Thomas, the critical fifth vote to overturn Roe, should have recused himself from the Dobbs case as well. Ginni’s Thomas’ ardent anti-abortion advocacy has been well-documented. Documents unearthed by the New York Times showed that while she was working with CNP and its affiliates, Ginni Thomas co-moderated a panel called “The Pro-Life Movement on Offense.” Thomas is also a key player in a secretive group called Groundswell, a right-wing coalition dedicated to a “30 front war seeking to fundamentally transform the nation,” according to documents obtained by Mother Jones. Groundswell “zeroes in on contentious issues that come before the high court, including voting rights, abortion and gay marriage,” the magazine found. The Eagle Forum, which opposes abortion rights, has honored Ginni Thomas with an award, and Clarence Thomas has twice headlined the group’s annual conference.
Late last week, a new analysis by Advance Democracy Inc., a non-partisan research group, found that 51% of the parties who filed amicus briefs ― written legal arguments used to lobby justices ― calling for an end to a federal abortion rights have political ties to Ginni Thomas.
In his Senate confirmation hearing in 1991, Thomas said he supported the right to privacy, which undergirds Roe, and that he had no personal biases in approaching the abortion issue. Thomas testified: “I believe the Constitution protects the right to privacy. And I have no reason to prejudge or to predispose to rule one way or the other on abortion, which is a difficult issue.” Given his and his wife’s long-standing ties to the anti-abortion movement, this sworn testimony was disingenuous at best. (Impeaching Thomas is also a useful way of highlighting for the public the fact that Justices Brett Kavanaugh ― who denied under oath credible accusations of sexual assault ― and Amy Comey Barrett similarly misled the committee in their sworn testimony about Roe).
Thomas also ran afoul of the law when he failed to disclose $686,000 his wife made at the Heritage Foundation between 2003 and 2007. Instead, he checked boxes indicating Ginni Thomas had no non-investment income in those years. The New Yorker reported that in 2017 and 2018, Thomas again failed to mention payments to his wife from the Center for Security Policy. The Ethics in Government Act requires all high-ranking federal officials to file yearly financial disclosure statements for themselves and their spouses, signed under penalty of perjury, to safeguard against conflicts of interest. It’s hard to believe that Thomas’ multiple disclosure failures were simply unintentional accounting errors. University of Colorado law professor Paul Campos has called the Heritage omissions “criminal.”
Clarence Thomas is an outlaw and a liar. He has not only misled the Senate, but, importantly, the public. Legal scholars have noted that the authority and legitimacy of the judicial branch, which is shielded from the whims of voters, depends on its perceived fairness, impartiality and integrity. On all three counts, Thomas fails the test. He should go.
Chief Justice John Roberts worries about the reputation of the court, but it is not really his court. It is Thomas’ court. Until that reality is recognized, it cannot be properly dealt with. Would it be perceived partisan to impeach Thomas? Of course it would. But there is a higher reason, which is to show that the constitutional rule of law can and will be upheld and the government in all its branches can be remedied.