impeach Justice Thomas?

Paul Horwitz 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 
the Court.

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?

Paul Horwitz
University of Alamaba School of Law
Tuscaloosa, AL


>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?
>
>
>
>Malla Pollack
>
>Professor, American Justice School of Law
>
>mpollack at ajsl.us
>
>270-744-3300 x 28
>
>articles http://works.bepress.com/malla_pollack/
>
>
>


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