Clarence Thomas as Bill Clinton?

[stoke001]

I thought Sandy might challenge me to be consistent as well!

1.  If Clarence Thomas lied under oath, before the Senate, in his
confirmation hearings, on any material matter (which I think would
embrace both his answers re Roe and his answers re Anita Hill),
he has committed an impeachable offense and the House and
Senate (in their respective roles) properly may exercise their
judgment as to whether the seriousness of the misconduct
warrants such proceedings.  In my judgment, perjury is clearly
serious misconduct.  If proved, it would warrant impeachment and
removal.  (Incidentally, in preparing for a debate on judicial
appointments, I discovered that I had said this, in print, in 1995,
and stated that this test should apply to judicial officers or
executive branch officials, including the President.)

2.  Surely there is no "res judicata" effect to the Senate's
confirmation of Thomas, as to the question of whether he lied!  It
does not bar an impeachment action, and it does not bar a criminal
prosecution (if the statute of limitations has not run).

(For that matter, I believe that an *impeachment acquittal* has no
res judicata effect, as aainst a subsequent impeachment and retrial
for the same offense.  Now that he's out of office, would anyone like
to impeach Clinton again?)

3.  As to whether Thomas lied on any matter, I don't know.  He
struck me as over-coached and over-prepped to be Souter-like in
his answers to substantive questions.  Though I'd have to look at
the transcript, my recollection [aha!  that's never perfect either!
Does that make me a liar?!] is that he said he'd never debated the
issue, other than being present at general discussions.  Other
people's recollections cast doubt on Thomas's, at least as to the
extent of his participation in these discussions about Roe and
abortion, but it's not exactly like saying he didn't recall whether he
was ever alone with Ms. Lewinsky.  I remain unconvinced one way
or the other.

For what it is worth, I don't think it at all implausible for lawyers not
to have discussed Roe v. Wade.  A lot of folks like to avoid this
issue, because it is distasteful, controversial, or just not "their"
issue.  I remember being somewhat disturbed at the idea that he
might not *care* about the issue, or not have *thought* about the
issue from a constitutional standpoint in any serious, systematic
manner -- that would seem to me to be an important qualification
for the job of Supreme Court justice.  But it did not seem
outrageous to me that he might not have had any serious
substantive conversations about that particular issue.  (Heck, I
can't recall having any serious conversation about *Good News*
from last term; nor have I even *read* it yet, and it's supposed to be
my area.)

4.  As to Anita Hill, when I listened to her testimony, I was totally
convinced.  When I listened to Thomas's testimony, I was totally
convinced.  The various chunks of evidence marshalled on both
sides to buttress their accounts do not fully persuade me one way
or the other.  This always disturbed me greatly:  one of these two
was *lying* -- I find it impossible to reconcile their accounts -- and I
don't know which one.  I surely would not vote to impeach or
convict on the basis of what (I think) I know on this issue.

By contrast, Bill Clinton was a plain perjurer, beyond any
reasonable doubt.  Look at his interrogatory answers.

5.  Thomas is a great Supreme Court justice!  But this would be
utterly irrelevant to me in my decision to impeach or remove a
perjurer.  Bill Clinton was a dreadful president!  But this would be
utterly irrelevant to me in my decision to impeach or remove a
perjurer.

Michael Stokes Paulsen
University of Minnesota Law School


        Date sent:              Tue, 9 Oct 2001 16:37:19 -0500
Send reply to:          Discussion list for con law professors <CONLAWPROF at listserv.ucla.edu>
From:                   Sanford Levinson <SLevinson at MAIL.LAW.UTEXAS.EDU>
Subject:                Re: Clarence Thomas as Bill Clinton?
To:                     CONLAWPROF at listserv.ucla.edu

> Perhaps Thomas should be impeached for having committed perjury before
> the Senate.  (We know that's a crime because Eliot Abrams and Richard
> Helms both pleaded guilty to having done it, though the first was
> pardoned by G.H.W. Bush and the latter was feted by his Washington
> friends after having done so.)  I presume that the statute of
> limitations has long since elapsed for ordinary criminal punishment
> (which, I suppose, raises an interesting question whether there is a
> s.o.l. for impeachment-worthy offenses).  If Thomas were merely
> evasive, he gets off.  That's easy.  (Indeed, I remain angrier at the
> Democratic Senators who basically were scared to confront him on this
> than at Thomas.)  As to the Anita Hill allegations, I would apply the
> same standards that I did with regard to Clinton.  That is, I agree
> with Richard Posner and others that Clinton committed impeachable acts
> in lying at the deposition and before the grand jury (though I do
> think that the meaning of "is" is important), but that this did not,
> prudentially, justify impeachment.  I'd be inclined to say the same
> for Thomas.  (Does this prudential standard let him off the hook even
> with regard to perjury re his having discussed Roe?  Probably.)  The
> reason I posted the AP dispatch was more to tweak anti-Clintonians
> than to suggest that we should go after Clarence Thomas (who, in some
> ways, is a law professor's dream justice insofar as he is willing to
> challenge so many aspects of "conventional wisdom" and force us to
> think about bedrock issues). Given Michael's views on the Clinton
> impeachment, I'd reverse the questioning and ask him what he would
> counsel if he were convinced both that Brad Reynolds (among others) is
> telling the truth and that Thomas lied to, rather than merely evaded,
> the Senate.
>
> sandy
>
> At 03:40 PM 10/09/2001 -0500, you wrote:
> >What is your position on this, Sandy (and others)?
> >
> >Is it that, assuming (arguendo) that Thomas misrepresented his
> >recollection, he should be impeached?  That he should be
> >prosecuted criminally (after the expiration of his term of office)?
> >Would your answer be the same if you conclude that Thomas were merely
> >evasive, but not dishonest?  Would your answer be the same if you
> >were persuaded that there is evidence that he lied about the Anita
> >Hill allegations?
> >
> >Michael Stokes Paulsen
> >University of Minnesota Law School
> >
> >
> >
> >
> >
> >  Date sent:            Mon, 8 Oct 2001 15:22:59 -0500
> >Send reply to:          Discussion list for con law professors
> <CONLAWPROF at listserv.ucla.edu>
> >From:                   Sanford Levinson
> ><SLevinson at MAIL.LAW.UTEXAS.EDU> Subject:                Re: Clarence
> >Thomas as Bill Clinton? To:
> >CONLAWPROF at listserv.ucla.edu
> >
> >>  Book: Thomas Discussed Roe v. Wade
> >>
> >>              By THE ASSOCIATED PRESS
> >>
> >>               Filed at 2:52 p.m. ET
> >>
> >> WASHINGTON (AP)-- A biography of Supreme Court Justice Clarence
> >> Thomas contends he discussed the Roe v. Wade abortion decision with
> >> at least three people before his confirmation hearings, even though
> >> he told a Senate committee he had not.
> >>
> >>        Under Senate questioning in 1991, Thomas said he had never
> >>        debated
> >> the contents or outcome of the 1973 Supreme Court decision that
> >> found a constitutional right to abortion, and had no personal
> >> opinion about it.
> >>
> >>        ``Clarence Thomas, a Biography'' by Andrew Peyton Thomas,
> >>        includes
> >> interviews with three people who
> >> say Clarence Thomas discussed the case in varying detail in
> >> conversations in the mid-1970s through the 1980s.
> >>
> >>         The first, a lawyer named Michael Boicourt, worked with
> >>         Thomas in
> >> the Missouri attorney general's office. He said Thomas was against
> >> abortion, but Boicourt could not recall more specific views the
> >> future justice might have expressed on what was then a recent
> >> decision.
> >>
> >>          While working for the Reagan administration in Washington
> >>          in the
> >> 1980s, according to the book, Thomas talked about the case with
> >> then-Assistant Attorney General William Bradford Reynolds, and with
> >> a friend, Armstrong Williams, who went on to become a conservative
> >> commentator and radio host.
> >>
> >>          ``I know we discussed it. I think that he thought little
> >>          of Roe v.
> >> Wade,'' Reynolds is quoted as saying. While Thomas did not state
> >> his views as forcefully as Reynolds, who said he found the decision
> >> ``constitutionally bankrupt,'' it was clear from their
> >> conversations that Thomas took a dim view of the decision on
> >> constitutional grounds, Reynolds said.
> >>
> >>         Williams said both Thomas and he opposed the decision.
> >>
> >>         ``He would also talk about where the Supreme Court ...
> >>         erred on
> >> some of these decisions,'' Williams said in the book. ``He thought
> >> they weren't interpreting the Constitution but trying to make
> >> law.''
> >>
> >>          A spokeswoman for the high court said Justice Thomas would
> >>          have no
> >> comment on the unauthorized biography.
> >>
> >>          The book, published this month by Encounter Books, is
> >>          mostly a
> >> sympathetic portrait that grew out of an article in the
> >> conservative Weekly Standard.
> >>
> >>          Author Andrew Peyton Thomas, who is not related to
> >>          Clarence
> >> Thomas, referred to the nominee's confirmation answers under oath
> >> about Roe v. Wade as possibly ``Clintonesque.''
> >>
> >
>