impeach Justice Thomas?
phorwitz at hotmail.com
Tue Oct 2 06:53:42 PDT 2007
I gather from other communication with Prof. Pollack that her answer to my
question would have been two-fold: 1) She was primarily interested, given
the usual subject matter of the listserv, in whether Justice Thomas has
committed an impeachable offense, regardless of whether he should actually
be impeached. 2) She would also be content to hear argument on the
proposition that he *should* be impeached, because it would be good for the
left; she may not be advancing that proposition here, but would be curious
to hear debate on the question, if it is not too off-topic. While I think a
discussion of 2) could get off-topic rather easily, I think it's within the
reasonable scope of discussion on this listserv, given the eternal questions
concerning the interplay between the impeachment remedy and ordinary or
extraordinary politics, and is worthy of at least some discussion, although
one hopes things won't wander too far afield.
On point 1), I guess I am wondering whether, even if we assume Justice
Thomas's words could constitute defamatory content, they should properly
form the basis of an impeachment attempt. I assume the book was vetted
carefully by the usual cadre of lawyers, and that Justice Thomas did not set
out to commit an intentional tort for which there was no available legal
defense. Doesn't this make it somewhat less than clearly an example of
deliberate wrongful conduct, and therefore far less clearly impeachable?
Should even a clear intentional tort be impeachable conduct? On the other
hand, if his statements about Hill are false, would they be impeachable as
some kind of serious misconduct even if we took the legal element away?
Really, how much does the fact that this takes place in the shadow of tort
law really contribute to the impeachability question?
On point 2), I guess the real question is, *how* would such an impeachment
be good for the left? Ilya Somin on the VC blog says, and I tend to agree,
that what the whole episode shows more than anything is the way in which
such incidents tend to polarize both sides indefinitely and to no great end.
So what would be the result of an unsuccessful impeachment attempt (which
this surely would be)? To confirm Justice Thomas more strongly in his
views, to raise the temperature of debate around the Court and judicial
nominations, to reduce civility -- and for what purpose? Of course, it
might be "good for the left" in the sense that most of these debates end up
being less about changing anyone's mind and more about the simply goal of
rallying the troops -- and an impeachment attempt would certainly be good
for that, although really it would only galvanize the genuine left while
turning off massive numbers of moderate and liberal Democrats. Then there
is the other reason behind such controversies, whether over judges,
abortions, or various other hot-button debates: in addition to increasing
the value of all the solidary goods that go along with being a member of an
ideological group, they're great fund-raising vehicles. If that is your
goal, then, sure, impeach away. (I might add that, for the same reasons,
impeaching Thomas would be even better "for the right" than it would be for
the left, since it would unite the Republicans and splinter the Democrats.)
But I would think most of us would conclude that such an effort would yield
polarization and debased discourse without garnering any actual change on
Wouldn't it be better just to go Professor Levinson's route, as I understand
it in the context of the President, and impeach Justice Thomas for wanton
incompetence? Let me make absolutely clear that I don't think there are any
grounds on which such a claim can be asserted against Justice Thomas. But
if impeachment is going to be a political remedy, isn't it better if it's a
political remedy in the sense of using impeachment as a means of ensuring
competent politicians by focusing on substantive questions of quality and
competence, rather than using muddy and ugly questions of public or private
virtue as a wedge to overturn election and appointment decisions arrived at
through democratic processes?
University of Alamaba School of Law
>From: "Malla Pollack" <mpollack at ajsl.us>
>To: <conlawprof at lists.ucla.edu>
>Subject: impeach Justice Thomas?
>Date: Tue, 2 Oct 2007 07:54:28 -0500
>According to the information in Anita Hill's NY Times OP Ed today, Thomas'
>new book includes defamatory material (though she does not use this term).
>I would consider this an impeachable offense. Comments?
>Professor, American Justice School of Law
>mpollack at ajsl.us
>270-744-3300 x 28
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>Please note that messages sent to this large list cannot be viewed as
>private. Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly or
>wrongly) forward the messages to others.
More information about the Conlawprof