Thursday, October 04, 2007

Impeach Clarence Thomas: Sometimes You Feel Like a Nut. Sometimes You Don’t.

It looks like Congress will have to impeach Clarence Thomas.

He has retaliated publicly against a former employee who accused him of sexual harassment.

That is a violation of the law and an abuse of his office as a Supreme Court Justice of the United States.

Not only does the retaliation bolster the original sexual harassment charge; it constitutes a new act of harassment based on sex.

The victim of the harassment, Anita Hill, may have remedies of her own. She might, for instance, file a complaint with the EEOC (the Equal Employment Opportunity Commission). That would be poetic, since she alleged in 1991 that Thomas had sexually harassed her while he was head of that agency. That and the age of the charges probably ruled out an EEO complaint in 1991. But now that Thomas, in print and in recorded interviews, has engaged in current acts of retaliation against Hill’s original charges, he may finally have opened a door to that administrative remedy.

If an EEOC complaint is unsuccessful, or impossible, Hill might also consider a civil suit. The grounds might include: the failure of Justice Thomas’s employer (presumably Chief Justice Roberts) to stop Mr. Thomas from violating EEO laws; the failure of the EEOC to enforce those laws; and perhaps libel or slander.

But even if Ms. Hill succeeded these pursuits, would it be a sufficient remedy for Congress, the citizens of the United States, or the rule of law under the U.S. Constitution? I suggest that it would not.

Congress, which had ample justification not to confirm the nomination of Justice Thomas in the first place, should face the consequences of the flawed decision it made in 1991.

Justice Thomas has had 16 years to prove his detractors were wrong. As Supreme Court watchers have observed repeatedly, his record reeks lack of judicial temperament in case after case. And now he resorts to judicial misconduct at its worst: he misuses his platform as a sitting Supreme Court justice to heap public abuse on a black female who questioned his commitment to following the law.

This latest behavior simply magnifies the assessment of Antonin Scalia, the only other justice whose conservative activism comes even close, that Clarence Thomas has more loose screws the Supreme Court can endure.

I close with the account of Scalia’s assessment, in this 10/1 post by Nicole Belle at

60 Minutes: Clarence Thomas addresses abortion and Uncle Tom accusations

Supreme Court Justice Clarence Thomas was interviewed on 60 Minutes yesterday to promote his book, My Grandfather’s Son, and he had some just odd things to say about his critics. When asked why there was so much controversy about his nomination to the highest court in the land, his answer: abortion. Huh? While he is correct that there was an overriding concern amongst Democrats of the time that a conservative majority would result in the overturning of Roe v. Wade, I think it’s a vast oversimplification to put the focus solely on that.

But then again, Thomas has a habit of
making strange oversimplifications and assertions. As Marty Kaplan recounts:

But no less an authority than arch-conservative fellow Associate Justice Antonin Scalia told Thomas’ biographer,
Ken Foskett, that Thomas “doesn’t believe in stare decisis, period.” If you think nutcase is too strong a word to summarize that view, listen again to Scalia, as quoted in this Terry Gross interview with Jeff Toobin about his new Supreme Court book, The Nine:

TOOBIN: Clarence Thomas is not just the most conservative member of the Rehnquist court or the Roberts court. He’s the most conservative justice to serve on the court since the 1930s. If you take what Thomas says seriously, if you read his opinions, particularly about issues like the scope of the federal government, he basically thinks that the entire work of the New Deal is unconstitutional. He really believes in a conception of the federal government that hasn’t been supported by the justices since Franklin Roosevelt made his appointments to the court. You know, I went to a speech that Justice Scalia gave at a synagogue here in New York a couple of years ago, and someone asked him, `What’s the difference between your judicial philosophy and Justice Thomas?’ I thought a very good question. And Scalia talked for a while and he said, `Look, I’m a conservative. I’m a texturalist. I’m an originalist. But I’m not a nut.’

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