Monday, March 28, 2022

Lifetime Federal Judicial Appointments was a Mistake by the Founders

 CNN reports:

The House Select Committee investigating the January 6 riot has in its possession more than two dozen text messages, 29 in total, between former Trump White House chief of staff Mark Meadows and Virginia "Ginni" Thomas, a conservative activist and the wife of Supreme Court Justice Clarence Thomas, according to multiple sources familiar with the messages.

These text messages, according to sources, took place between early

Ginni Thomas
 November 2020 and mid-January 2021. Thomas recently revealed that she attended the pro-Trump rally that preceded the US Capitol attack on January 6, 2021, but says she "played no role" in planning the events of that day.

The text messages, reviewed by CNN, show Thomas pleading with Meadows to continue the fight to overturn the election results.

"Help This Great President stand firm, Mark!!! ... You are the leader, with him, who is standing for America's constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History," Thomas wrote on November 10, 2020.


Thomas regularly checked in with Meadows to encourage him to push claims of voter fraud and work to prevent the election from being certified. Meadows often responded. On that same day as the previous text, he wrote: "I will stand firm. We will fight until there is no fight left. Our country is too precious to give up on. Thanks for all you do."

On November 24, 2020, Meadows promised he wasn't done battling on then-President Donald Trump's behalf and evoked his faith as a source of strength.

"This is a fight of good versus evil. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it."

Thomas wrote to Meadows on November 19, 2020, "Sounds like Sidney and her team are getting inundated with evidence of fraud. Make a plan. Release the Kraken and save us from the left taking America down." Attorney Sidney Powell, who worked on Trump-aligned lawsuits seeking to challenge the results of the 2020 election, was also referred to by herself as "The Kraken" in reference to the ancient mythological sea creature.

By the end of November, Thomas was getting increasingly frustrated with the lack of progress of the attempt to find a path to overturn the results.

On November 24, 2020 she wrote: "I can't see Americans swallowing the obvious fraud. Just going with one more thing with no frickin consequences... the whole coup and now this... we just cave to people wanting Biden to be anointed? Many of us can't continue the GOP charade."

The committee is in possession of only one text from the month of January 2021, four days after the riot on Capitol Hill.

Thomas wrote to Meadows that she was angry with then-Vice President Mike Pence for not taking the steps necessary to block the certification of the election results.

"We are living through what feels like the end of America. Most of us are disgusted with the VP and are in a listening mode to see where to fight with our teams. Those who attacked the Capitol are not representative of our great teams of patriots for DJT!! Amazing times. The end of Liberty," Thomas wrote.

While it's hard to fashion a rule limiting the political activity of a judge's spouse, conflict of interest rules still constrain the judge's participation in cases involving spouses and family members.  In January of this year, Justice Thomas was the lone dissenter in an order that rejected Trump's attempt to keep documents from the select committee investigating events surrounding January 6th.  At the time Justice Thomas participated in that vote, he had to have known his wife was lobbying in support of the coup attempt.  Indeed, considering her role in the effort, she very possibly will be called as a witness before the January 6th Committee.  Yet, Justice Thomas did not recuse himself from participating in the ruling earlier this year.  

Judicial ethics demand judges recuse themselves on cases that could involve family members.  But here's the thing.  Supreme Court justices, unlike other judges, are not bound by ethics rules. They are literally above the law.  Whether they recuse themselves is totally up to them.

In the Constitution, the Founding Fathers gave federal judges lifetime appointments, subject only to removal through the impeachment process.   As a result, lower court federal judges have very few restraints  as they only answer to the federal judges at the level of above them. But Supreme Court justices have no one above them.  If they choose not to follow judicial ethics, the only remedy is impeachment by the House and removal by the Senate.  In 235 years, not a single United States Supreme Court justice has ever been removed through the impeachment process.  Only 15 lower court federal judges have been so removed.

Lifetime appointments of federal judges was almost certainly a mistake by our founders.  It's been particularly problematic at the Supreme Court level where justices often serve 30 or more years, exerting virtually absolute power in deciding major policy issues.

I like the idea of the nine Supreme Court justices serving 18-year terms, with a term expiring every two years.  That way, every President would have two appointments during a single four-year term.  But it may require a constitutional amendment to make the change.  

But maybe it would not.  There is an argument that lifetime tenure only applies to the appointment as a federal judge, not to a particular court. 

Finally, I should note that I'm not one of those who philosophically oppose Justice Clarence Thomas.  Most of his opinions reflect my own conservative views, although there are major exceptions such as Thomas' desire to limit free speech by revisiting the "actual malice" standard set out in NY Times v. Sullivan.  The Democrats' effort to dig up dirt on Thomas and then smear him with a factually specious and uncorroborated claim of sexual harassment which supposedly happened decades earlier is one of the worst things I've seen in politics, rivaled only by what the Democrats attempted to do to now Justice Kavanaugh.

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