Thurmond dragged the process out long enough that Johnson’s term expired and Vice President Hubert Humphrey lost the election to Richard Nixon (who’d committed treason to win the White House by cutting a deal with the Vietnamese to turn down the peace treaty they’d negotiated with LBJ). Once Nixon became president, he put Warren Burger on the Court and into that top slot.
But that’s only part of the story, and the rest of it, particularly in light of the most recently unearthed nakedly corrupt behavior by Clarence Thomas, brings forward a possible solution to the unwillingness of the Supreme Court to police themselves and Congress’s inability to begin impeachment proceedings.
No Supreme Court justice in history has been either prosecuted or removed by impeachment. (Samuel Chase was impeached in the House in 1805, but the Senate failed to convict and remove him from office.)
But Richard Nixon figured out how to get one off the bench — specifically, the ultra-liberal Abe Fortas — and there’s a lesson in that experience for us today.
While Nixon’s motives back then were entirely partisan and corrupt, the Court today faces a genuine crisis of confidence that shakes Americans’ trust in their government. And credibility is the only tool the Court has to enforce its decisions, as Alexander Hamilton pointed out in Federalist 78:
“[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.
“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (emphasis Hamilton’s)
The revelations about three decades of Clarence Thomas’ corrupt behavior have been coming fast and furious in the past few weeks, on top of the shocking revelations laid out last April about billionaire Harlan Crow’s spending millions, starting in 1994, to cement his “friendship” with and apparent influence over the justice.
ProPublica discovered that Crow had showered millions in gifts and luxury vacations on the Thomas’, bought Clarence’s mother’s home and lets her live there rent-free, and put the boy they were raising as their son through high-end prep schools. Since then, America has also learned that Crow also appears to be profiting mightily from Thomas’ tie-breaking votes on the Court.
For example, last week Thomas was the tie-breaking vote to gut federal protections for half the wetlands in America, putting the most ecologically diverse and fragile ecosystems in the country up for commercial and residential development.
Lever News is reporting that this accomplishes a goal that Crow’s companies and the trade associations they’re members of have been working toward for years, perhaps even decades.
They’ve spent millions on lobbying, court battles, and submitting Amicus (Friend of the Court) briefs in federal courts, including specifically advocating for the outcome Thomas assured with his tie-breaking vote in last week’s Sackett v. Environmental Protection Agency case.
Earlier, Paul Blumenthal had written for Huffington Post about how Crow’s company might benefit if the Clean Water Act was gutted by the Supreme Court, in part because they had some huge development projects that were apparently waiting on the ability to pave over, build on, or erect next to wetlands that had federal protection:
“In 2022, Crow Holdings Industrial sought authorization from the Army Corps of Engineers under the Clean Water Act for a warehouse development in Georgia that would result in ‘cumulative adverse impacts to 6.87 acres of wetland.’”
Since the Sackett decision, those wetlands are presumably no longer a concern for Crow’s company. Time to make some money!
This is just one of literally dozens — and perhaps hundreds — of decisions Thomas voted on that might have either affected Crow’s companies, affiliated entities and trade groups, or comported with Crow’s political perspective.
But while simple corruption like this would probably get a state court judge impeached or even thrown in jail, it apparently isn’t enough to draw fire from either the Justice Department (the only agency with the power and authority to take on the Supreme Court) or Congress (via impeachment).
Trying to overthrow the government of the United States, however, may be another matter altogether. And that’s where Clarence’s wife Ginni may be vulnerable.
When Richard Nixon wanted to get rid of Abe Fortas, embarrassment (via the “Fortas Film Festivals”) wasn’t enough: Fortas defended his vote to legalize pornographic movies and ignored the critics.
But then Nixon ordered his attorney general, John Mitchell, to convene a grand jury to investigate a bogus allegation that Fortas’ wife had engaged in a tax-avoidance scheme.
She was a lawyer with a prestigious DC firm and an obscure rightwing source had alleged the proof of her involvement in the tax scheme could be found in her safe. It made for lurid headlines, even though she happily emptied the safe for her bosses in the law firm.
Mitchell then began pulling together the grand jury and Fortas — knowing the old saw that “a grand jury can indict a ham sandwich” — put an end to the entire charade by resigning from the Court.
As Nixon’s White House Counsel John Dean, who was there and knew the players, wrote in his book on the era (The Rehnquist Choice):
“Did the Justice Department have the goods on Fortas? Not even close. Mitchell’s talk was pure bluff. … Lyndon Johnson’s Justice Department had investigated this question [back when Fortas was nominated for Chief Justice in 1968] and found nothing improper…. Reopening of the matter by Richard Nixon’s Justice Department was purely a means to torture Fortas.”
Nixon’s persecution of Abe Fortas’ wife was as bogus as his war on drugs, both being done for purely political reasons (as I mentioned yesterday).
With Ginni Thomas, though, the story is quite different.
One of the crimes for which Donald Trump, Rudy Giuliani, et al are being investigated is defrauding the federal government (and the voters) by fielding a slate of false or phony electors to steal the 2020 election from Joe Biden and award it to Donald Trump.
The Washington Post obtained copies of messages Ginni Thomas sent to more than half the Republican legislators in Arizona and multiple ones in Wisconsin encouraging them to do just that. She wrote:
“As state lawmakers, you have the Constitutional power and authority to protect the integrity of our elections - and we need you to exercise that power now! Never before in our nation’s history have our elections been so threatened by fraud and unconstitutional procedures.”
Asking them to watch a video purporting to prove the election was stolen (that’s since been deleted from YouTube for violating their terms of service), Thomas concluded her message with:
“[P]lease consider what will happen to the nation we all love if you do not stand up and lead.”
The Post also, in a separate article, documented multiple clear violations of ethics norms committed by the Thomas couple, some of which may rise to the level of violations of law.
Additionally, it’s possible Ginni Thomas was involved in the organization of January 6th, although she has denied it publicly. Only an investigation by an agency with subpoena power like a grand jury could determine the truth.
As The New York Times Magazine noted in February of last year:
“Dustin Stockton, an organizer who worked with Women for America First, which held the permit for the Ellipse rally, said he was told that Ginni Thomas played a peacemaking role between feuding factions of rally organizers ‘so that there wouldn’t be any division around January 6.’
“‘The way it was presented to me was that Ginni was uniting these different factions around a singular mission on January 6,’ said Stockton, who previously worked for Bannon.”
A federal grand jury investigation of Ginni Thomas would serve several purposes.
— First, it would demonstrate that there can be consequences for blatant corruption by members of the Supreme Court and their families, thus serving as a deterrent to corrupt practices by other or future justices.
— Second, it could shed light on some of the behind-the-scenes actions around the January 6th attempted insurrection and the effort to overturn the election through the criminal fake elector scheme.
— Third, it may provoke Clarence Thomas to finally pack it in and leave the Court, as his predecessor Abe Fortas did back in the day.
Given his apparent fear of appearing partisan, it’s unlikely Attorney General Merrick Garland would take an action like this on his own or directly through the DOJ. After all, he dithered and ignored Trump’s clear criminality for almost two full years until he was shamed into doing something by the public January 6th Committee hearings.
But, if there’s enough public pressure, it may provoke him to appoint a surrogate, a special counsel, to convene a grand jury and begin the necessary investigations.
And it’s entirely possible, after Jack Smith sends Donald Trump to prison (please, G-d!), that he’ll have some time on his hands which could be well spent sticking around Washington, DC…