Unpack Before Packing the Supreme Court
Impeach justices before court expansion or term limits
As Republicans rush to install Amy Coney Barrett on the Supreme Court, Democrats have rumbled that if they control the levers of government in January, they might add additional seats to the Court to correct for the extremist conservative bias. Representative Ro Khanna and other progressives have also proposed limiting Court appointments to eighteen years rather than the current lifetime tenure. Before considering these structural changes we might want to revisit impeachment, specifically, impeaching Justices Kavanaugh and Thomas.
The possibility of a possible future impeachment arose during the vitriolic hearings that resulted in seating Brett Kavanaugh on the Court two years ago. Available evidence strongly indicates that both Brett Kavanaugh and Clarence Thomas lied under oath during their nomination hearings to obtain their seats on the court. Both men appear to have made untrue and misleading statements about their sexual harassment of women. In both cases, multiple credible witnesses could have refuted parts of the justices’ sworn testimony. And in both cases, Republican Senators who did not want to hear the truth foreclosed the official investigations and the public discussions about the mens’ actions.
The US Constitution explicitly establishes the rules for impeaching federal officials, including judges. The House of Representatives has impeached fifteen federal judges, including one Supreme Court Justice, with the Senate moving half (eight) of them from office, making judicial impeachment both more frequent, and more successful, than presidential impeachment efforts. One does not need to meet the legal definition of perjury to qualify for having committed a “high crime or misdemeanor”. We expect greater probity from our judges than from our elected politicians.Those holding lifetime appointments to the highest court of our land should be held to stringent ethical standards.
Issues of fairness, and of individual vs. group responsibility, support a consideration of impeachment before any attempt at expanding the Supreme Court.
The US Constitution does not enumerate the number of Justices on the Supreme Court, thus tacitly permitting enlarging the size of the court. The tradition of nine Supreme Court Justices extends back to 1869; nobody living remembers a differently configured court. Changing the conventionally accepted number of seats on the court strikes most people as “cheating”, even if not proscribed by the rules.
A majority of Americans want the Senate to wait until after the election to chose a replacement for Justice Ginsburg. Most Americans believe that Mitch McConnell and his Republican compadres are acting hypocritically and unfairly in pushing for hearings on Barrett’s nomination before the election. However, my discussions with partisans on both sides suggest that people would view expanding the size of the court as an escalation of cheating. Jumping to this option before other choices have been exhausted would refute Michele Obama’s injunction to “go high” when the other side “goes low”. An escalation of this magnitude not only invites, but virtually demands, payback from the Republicans should they regain congressional power, by adding even more seats.
Impeachment directs public attention to corrupt, malfeasant individuals, rather than to partisanship on the court. These two men are not the most conservative members of the current court, they are the two who degraded women and willfully lied to obscure their repugnant behavior. While elected Republican officials have moved pretty much in lock step to defend a host of democracy destroying measures of the Trump presidency, attacking the party as a group actually encourages them to stick together. We know that Republicans do exist who want to shrug off the mantle of Trumpism. When we frame impeachment as “removing a few bad apples” we can create a potential space for cooperation with any Republicans who want to start rebuilding our country on the basis of truth and justice, with less corruption in public positions.
Impeachment would also allow Joe Biden to atone for one of his biggest errors in judgment during his Senate career, when, as Judiciary Committee Chairman, he presided over the Clarence Thomas hearings. He essentially allowed the “high tech lynching” — not of Clarence Thomas, who adeptly played the race card, but of Anita Hill, who testified against him. Other women could have testified to Justice Thomas’ inappropriate behavior, which likely would have torpedoed his nomination. A clear apology from Biden for sacrificing the reputation of Anita Hill, and for being out-manipulated by the Republicans, accompanied by the impeachment of Clarence Thomas, would truly demonstrate that the arc of history bends towards justice.
Impeachment certainly carries risks. It may require too much time and create too much controversy at a time when our country will require so much rebuilding to recover from Trump. Unlike actions requiring just a Democratic majority, impeachment would need at least some Republican votes for success. But asking for support from across the aisle for what is true, and fair, and right, could actually help move the country forward. Even if impeachment fails, by showing that the Democrats tried, within the current system, to rectify inequities and historical injustices, could actually help foment popular support for expanding the court. If the existing tool of impeachment proves inadequate, we thereby build a stronger case that we do need to subvert and jettison our conventions, and rely on a larger Supreme Court to help restore balance and justice to the United States.
