To Impeach Thomas,Too Little, Too Late

      Clarence Thomas should never have been confirmed as a Supreme Court justice. His professional qualifications for the lifetime post were paper thin as of 1991, with only a little over a year on the federal appeals court for the District of Columbia. His temperament as displayed on the bench, in his eight years at the Equal Employment Opportunity Commission (EEOC), and in public speeches and remarks was blatantly injudicious.
      Thomas very likely committed perjury while under oath before the Senate Judiciary Committee when he denied the accusations of sexual harassment made by law professor Anita Hill. Newly uncovered evidence tends to substantiate Hill's accusations and thus buttress the suspicion that Thomas's Senate confirmation by the historically narrow margin of 52-48 was ineradicably tainted. Thomas also dissembled before the committee by responding to persistent questioning that he had never "debated" abortion. That evasion was unmasked by his dissenting vote in his very first term to overturn Roe v. Wade.
      With this new evidence, journalist Jill Abramson, co-author with Jane Mayer of a critical account of the confirmation in Strange Justice, argued in an article in New York magazine in mid-February that it is "time to raise the possibility of impeachment" to examine the "overwhelming evidence" of Thomas's past perjury and post-confirmation accusations of sexual harassment. The call has gone nowhere in the Republican-controlled Congress, which views control of the Supreme Court as its signature accomplishment of the post-Scalia era..
      The evidence against Thomas, even if believed, is too little and too late, however, to warrant the extraordinary step of impeaching a Supreme Court justice. Thomas may not deserve his seat on the Supreme Court, but the country and the Court itself cannot withstand another traumatic episode in the politicization of the nation's last, best hope for equal justice under law.
      History has judged the only impeachment of a Supreme Court justice ever to have been a mistake, however unworthy the justice in question. The early 19th century justice Samuel Chase was an openly partisan Federalist when riding circuit: he openly advocated prosecuting political opponents in what was then called the Republican Party, but he survived impeachment in the Republican-controlled Senate in 1805. President Thomas Jefferson fretted afterward that impeachment was a toothless weapon against entrenched Federalist judges, but history has deemed Chase's acquittal to have helped establish an important safeguard for the independence of the judiciary.
      Impeachment has been of some use, however, in removing corrupt or dishonest judges from lower federal courts, according to a compilation by the Congressional Research service. Among dozens of investigations, 14 lower federal court judges besides Chase have been impeached, including five since 1986. In all, eight have been removed after Senate convictions and four others resigned with impeachment proceedings pending. As Abramson notes, three of those removed in the modern era faced charges for lying: two for perjury (Alcee Hastings and Walter Nixon, both in 1989) and the third for false financial disclosures (Thomas Porteous, in 2010).
      The post-confirmation allegation of sexual harassment by Thomas surfaced in October 2016 from an Alaska lawyer, Moira Smith, who was prompted to go public with a 17-year-old episode after the controversy over Donald Trump's Hollywood Access tape. In her account, as reported by Marcia Coyle in National Law Journal, Smith said that she had felt honored to attend a social dinner with Thomas in 1999 and then embarrassed to have been groped twice by the justice and pressured to sit next to him for the dinner. Thomas denied the accusation.
      In her magazine article, Abramson, who covered the Thomas confirmation for The Wall Street Journal and then served in senior management positions at The New York Times for 17 years, recapitulates the evidence that was available back in 1991 but never formally presented in a public hearing. Joe Biden, then the chairman of the Senate Judiciary Committee, made the fateful — and now apologized for — decision not to call additional witnesses after Hill's dramatic testimony and Thomas's indignant denials.
      Three of those witnesses, including Angela Wright Stanton, a former EEOC staffer like Hill, would have provided similar depictions of Thomas's sexually aggressive conduct while chairman of the agency. Three others would have testified about Thomas's collection of Playboy magazines and his interest in porn videos. It is unknowable whether the testimony would have changed the minds of some in the public or in the Senate. But Stanton has now written an op-ed for Huffington Post that echoes Abramson's call to consider impeachment against Thomas.
      Two other women have belatedly accused Thomas of sexual harassment. Lillian McEwen, who dated Thomas around the same time as Hill's tenure at the EEOC, described a pattern of sexual aggressiveness to Michael Fletcher, co-author with his then Washington Post colleague Kevin Merida of a critical biography of Thomas in 2007. In addition, Abramson reports that an attorney, Karen Walker, has quoted a former BNA reporter, Nancy Montwieler, as recounting sexual harassment by Thomas while she covered the EEOC. But Montwieler refused to confirm the account when Abramson tracked her down in February and then sent Abramson an email denying having made any accusation.
      In short, the new evidence for present-day impeachment is weak, far too weak to expose the Supreme Court to what would inevitably be an intensely partisan proceeding. History does not allow do-overs. The Moving Finger writes, the poet reminds us, and having writ, moves on.