The Constitution of the United States of America provides a nifty device to chasten not only the president, but even the justices of the highest judicial body, the U.S. Supreme Court. Although its justices receive lifetime appointments through which to ultimately decide constitutional legal disputes, misbehaved justices can be removed through an impeachment process.
In 2021 the presidency and the Congress have flipped to the Democrats’ control. Some housecleaning at the SCOTUS would enable Democratic President Joe Biden to make two nominations to the highest court in his first year.
Justices Clarence Thomas and Brett Kavanaugh could be impeached for lying to Congress about — you guessed it — sex. Both cases open old wounds, one decades old. But these issues can be fresh reminders of the old saw that you can run but not hide.
In 1991, Republican President George H.W. Bush nominated Black conservative U.S. Court of Appeals Judge Clarence Thomas to replace the retiring liberal Thurgood Marshall, the court’s first African American associate justice. The Senate hearings on the nomination were conducted by the Judiciary Committee, then-chaired by Democratic Sen. Joe Biden.
As the hearings’ ending neared, a Black University of Oklahoma law professor, Anita Hill, surfaced to testify that Judge Thomas repeatedly sexually harassed her at two federal agencies where he supervised her — the Department of Education and the Equal Employment Opportunity Commission. In a booming voice, the 43-year-old judge ferociously denied the young law professor’s accusations, essentially calling her a liar. Senators from both sides had their way with the courageous academic also ... on live television. The grilling was merciless.
After publicly managing the hearing ineptly and striking an overly Thomas-friendly back-room deal with the Republicans to limit scope, Mr. Biden presided over a tied committee vote that moved the nomination to a favorable full Senate 52-48 confirmation vote. For the past 30 years, Judge Thomas has been a reliably hard right-wing voter on the Supreme Court.
Just to keep life interesting, Republican Senate Majority Leader Mitch McConnell extra-constitutionally determined that President Barack Obama was entitled to exercise the presidential power to forward to the Senate the names of court nominees during no more than the first three years of his presidency. President Obama’s 2016 nominee to fill the vacancy that occurred in the president’s final year in office, therefore, was not acted on by Mr. McConnell.
In 2017, newly elected Republican President Donald Trump filled the seat — vacated in 2016 by the death of Antonin Scalia — with conservative Neil Gorsuch. Then the president nominated conservative Brett Kavanaugh to fill the retiring Anthony Kennedy’s seat in 2018. Enter Christine Blasey Ford.
During sworn testimony at the Kavanaugh Senate confirmation hearings, Stanford psychologist Ms. Blasey Ford testified that the nominee sexually assaulted her in Maryland when they were teenagers. As in the Thomas/Hill kerfuffle, the nominee denied the charge in an unhinged outburst under oath. With a meaty Trump thumb on the scale, an anemic limited FBI investigation was of little help. The Senate, also in a 52-48 vote, confirmed Justice Kavanaugh.
Considerable gamesmanship, wheeling and dealing and white-male privilege conspired to defeat righteousness and justice in the Thomas/Hill controversy of 1991. Yet, there is evidence that at least four credible witnesses to support Anita Hill were available to testify at the Senate Judiciary Committee hearings but were not called. These women, according to journalist Jill Abramson, in a Feb. 19, 2018, New York Magazine article, can provide overwhelming evidence that Justice Thomas lied under oath to Congress 30 years ago in order to secure lifetime employment.
There is evidence that President Trump’s 2018 Supreme Court nominee lied to Congress under oath as well. His accuser passed a lie detector test — which he did not take — through which she reported that an alcohol-besotted Brett Kavanaugh attempted to rape her at an unsupervised underage house party in the early 1980s.
Vox, an online news website, describes five circumstances evidencing sworn untruthfulness on Justice Kavanaugh’s part during his 2018 Senate confirmation hearings. Public drunkenness and sexual assault are at the heart of two of them.
Feckless Democrats “controlled” the Clarence Thomas confirmation process in 1991; powerful Republicans controlled the shenanigans for Brett Kavanaugh in 2018. In both cases a Republican president nominated an unfit conservative candidate for whom confirmation was rushed, FBI investigations were fatally flawed and two unfit accused sex-offending liars are ensconced as until-death-do-they-part-members of the world’s most prestigious ultimate tribunal.
In each case, impeachment — an indictment — is a remedy; then trial in the Senate, after which two-thirds voting could result in conviction and removal respectively of Justices Thomas and Kavanaugh from the Supreme Court. But there is no rush. Even if it takes a year, proper and thorough FBI investigations could ensue, with the first two government branches — the legislative and executive — playing their parts to restore dignity, rectitude and lawfulness to the third, the judicial.
In that manner, should two vacancies on the Supreme Court result, President Joe Biden likely would fill the seats with more centrist-leaning candidates who not only rebalance the court, but also constitutionally seize back the seat hijacked by Mr. McConnell from Mr. Obama in 2016.
Robert Hill is a Pittsburgh-based writer and communications consultant.
First Published: February 9, 2021, 5:00 a.m.