19 March 22
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While Ginni Thomas has worked as a GOP operative, her husband has refused to recuse himself.
It’s become conventional wisdom that there’s nothing that can be done to pry a Supreme Court justice, like Thomas, from the bench after they receive what is more often than not a lifetime appointment. But every Democratic member of the House of Representatives should be Googling the name "Samuel Chase" right now.
The oft-forgotten Chase, in addition to being a signatory to the Declaration of Independence, was a member of the Maryland General Assembly, a member of the Continental Congress and the eighth justice to be appointed to the United States Supreme Court.
Still, his long and distinguished résumé didn’t win him many fans. The conservative mayor of Annapolis called him a “busy, restless incendiary, a ringleader of mobs, a foul-mouthed and inflaming son of discord and faction,” noted a 1974 retrospective that ran in Maryland's Evening Capital newspaper. Chase didn’t hold back against his critics either, calling them “despicable tools of power, emerged from obscurity and basking in proprietary sunshine.”
His enemies included President Thomas Jefferson, who saw the judge as an extreme partisan, with a biased attitude toward defense lawyers and jurors. In 1804, nine years into Chase’s term on the court, Jefferson and his allies turned to what is still the only way to force a justice out: impeachment. In recent years, we have become all too familiar with the process for impeaching a U.S. president. Chase is a reminder that the Constitution contains the same rules for impeaching federal judges as it does for presidents.
While the associate justice was impeached on eight charges in the House, the Senate — despite being dominated by Jefferson’s Democratic-Republicans — didn’t reach the two-thirds majority required to force him out on any of them.
Nevertheless, convicted or not, Chase remains the only Supreme Court justice in American history to be impeached. And it was not for some conflict of interest or violation of judicial ethics. It was because his political opponents, including the then-president, thought he was too partisan to rule in a fair or impartial manner.
Today, we agree that a judge cannot, and should not, be removed simply because we disagree with their rulings. But we should then also agree that if judges are violating ethics or subject to conflicts of interest, they should in theory be impeached and removed from the bench.
Which brings us back to Justice Clarence Thomas. In January, The New Yorker’s Jane Mayer profiled Thomas’ wife, Ginni, a longtime conservative operative and lobbyist, and revealed how her lobbying firm was on the payroll of far-right activist Frank Gaffney’s Center for Security Policy. Gaffney and others submitted an amicus brief to the court in 2017 in support of the Trump administration’s travel ban, arguing that “the challenge of Islam must be confronted.”
Shockingly, Thomas did not recuse himself from the case given the clear financial conflict. He never even disclosed the $200,000 paid to his wife despite being required to report the source of a spouse’s income as part of his annual financial disclosures, according to The New Yorker. Thomas would later join his fellow four conservative justices in voting to uphold Trump’s shameful Muslim ban.
In February, The New York Times Magazine reported that Ginni Thomas served on the board of a secretive right-wing group called CNP Action. In November 2020, it circulated a “November ‘action steps’ document” instructing its members in the days after the election “to pressure Republican lawmakers into challenging the election results and appointing alternate slates of electors,” according to the report.
But when former President Donald Trump asked the Supreme Court to block the House Jan. 6 committee from obtaining hundreds of pages of White House records from the National Archives, Thomas was the sole justice to vote against the House investigators.
Then on Monday, in an interview with a conservative blog, Ginni Thomas admitted to having attended the "Stop the Steal" rally at the Ellipse on Jan. 6, 2021. She admitted to being in Washington, D.C., on Jan. 6, thereby endorsing that day's Trump-led rally to overturn the election, but she claimed to have left before Trump addressed the crowd because she “got cold.”
To recap: These reports showed that the wife of a Supreme Court justice not only took undisclosed money from an activist who filed a brief in front of the court, but that she was also part of a campaign to try to overturn the 2020 election result and attended the rally that preceded the attack on the Capitol. And as Ginni Thomas herself helpfully explained in Monday’s interview: “Like so many married couples, we share many of the same ideals, principles, and aspirations for America.”
Ridiculously, Clarence Thomas wants us to believe he can carry on as an associate justice and remain above the fray. In September, speaking at the University of Notre Dame, he railed against growing criticisms of the court’s partisan behavior. If he really wanted to avoid looking like a politician, why allow his wife’s political activism and income streams to have even the appearance of an impact on his decisions instead of recusing himself?
In fact, unlike others on the court, such as Justices Brett Kavanaugh and Stephen Breyer, who have recused themselves from cases involving family members, Clarence Thomas has never recused himself from a case because of Ginni Thomas or her work.
Why should we continue to tolerate his outrageous and unethical behavior? Bear in mind, the nine justices on the Supreme Court are the only federal judges in America not bound by a formal judicial ethics code. Instead, they are supposed to regulate themselves. (Stop laughing.)
Plenty of House Democrats will say there is no point even considering an impeachment of Thomas, correctly — if defensively — pointing out that the current Senate would never vote to convict. Can you imagine Sens. Joe Manchin, D-W.Va., or Kyrsten Sinema, D-Ariz. — let alone 17 Republican senators — agreeing to vote to remove a Supreme Court justice for the first time in our history?
But from a purely political point of view, Democrats should be loudly drawing attention to the fact that the wife of a sitting Supreme Court justice supported Trump’s coup attempt. That justice then refused to recuse himself from a case involving the investigation of that coup attempt. There is a clear value in holding impeachment hearings to draw attention to Thomas and his wife and their inappropriate behavior, especially as an increasingly partisan, conservative-majority court guts voting and reproductive rights. What would Republicans be doing if they had held a House majority and, say, Justice Sonia Sotomayor’s spouse had supported attempts to block a duly elected GOP president from taking office and she refused to recuse herself from related cases?
Perhaps above all else, impeachment by the House is still impeachment, no matter what the Senate decides in the trial. A Supreme Court appointment may be for life. But so, too, are impeachments, as House Speaker Nancy Pelosi aptly put it in 2020. Democrats in the House have both the constitutional authority and moral obligation to put a permanent asterisk next to Justice Clarence Thomas’ name.
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