The Hunt for the Great White Whale 

Dr. Malcolm Cross

It’s probable that the Senate will soon vote to confirm Judge Ketanji Brown Jackson’s appointment to the U. S. Supreme Court.  But while that particular matter will be settled, controversy over the Supreme Court will continued unabated as more attention is turned to Associate Justice Clarence Thomas.

The announcement by Republican Senator Susan Collins of Maine that she’ll vote to confirm Judge Jackson’s appointment practically guarantees that by the end of the week the Supreme Court will have its first Black woman justice.  Since it’s expected that all 48 Democrats and both independents in the Senate will support Judge Jackson, Senator Collins will supply the all-important 51st vote to make her America’s newest Supreme Court Justice.

But the current political controversy will not end any time soon.  Becoming more of an issue is the role Justice Thomas should be allowed to continue to play in Supreme Court decision making, or if he should be allowed any role at all.  Revelations that his wife, Ginni, sent numerous text messages on January 6 of last year to former President Trump’s chief of staff, Mark Meadows, expressing support for Trump’s efforts to remain in power have led many to demand that Justice Thomas should, at the very least, recuse himself from any cases involving the 1/6 riot.  Some have said he should be forced to resign from office, or even be impeached and removed.

It’s obvious that should Mrs. Thomas be prosecuted for a role in the riot–or anything else, for that matter–Justice Thomas would have to recuse himself should her case actually go to the Supreme Court.  But nobody is suggesting that Mrs. Thomas, simply by expressing her opinion, has done anything illegal.  There is no evidence that she actually helped plan or participate in the riot.  Nor is there any knowledge of what impact, if any, her opinions have on how Justice Thomas rules on anything.  Hence there seem to be no legal grounds to either force Justice Thomas to recuse himself or to impeach and remove him from office.

So what’s really going on?

Justice Thomas has been the subject of intense and bitter controversy ever since 1991, when during the course of hearings on his nomination to the Supreme Court he was accused of sexual harassment.  A female colleague who had once worked for him, Anita Hill, accused him of saying dirty words in his presence and of decorating his kitchen with calendars featuring Playboy magazine “playmates.”  Ms. Hill claimed to have corroborating witnesses who wanted to testify on her behalf.  Thomas claimed that her prospective witnesses had left a federal agency he had once directed under unpleasant circumstances (he had actually fired one for alleged homophobic comments).  In any event, no less a personage than Joe Biden, who in 1991 chaired the Senate Judiciary Committee, barred testimony from anyone other than Ms. Hill herself.  Evidently he thought there was nothing to the charges against Thomas (although he voted against his confirmation anyway, on policy grounds).  

Yet throughout the 3 decades of Justice Thomas’s service, efforts have been made to find additional evidence buttressing Anita Hill’s claims in the hope that the legal groundwork for an effort to have him impeached and removed for perjuring himself when he denied harassing her.  Justice Thomas’s uncompromising conservatism and his expressed disdain for precedents he thinks were wrongly decided have made him a far greater target than any other Supreme Court Justice, including Justices Kavanaugh and Barrett.  To neutralize Justice Thomas now on the basis of Mrs. Thomas’s text message is part of the same strategy with different tactics.

And this is part of the ongoing war over the Supreme Court I discussed last week.  To recap:  Given the outsized role we’ve let the Supreme Court play in the evolution of public policy, each party seeks to control the Supreme Court’s composition and thereby its probable direction.  Currently the Supreme Court includes 6 conservatives, all appointed by Republican presidents, and 3 liberals, all appointed by Democratic presidents.  The replacement of Justice Breyer with Justice Jackson will not change the philosophical lineup.  But the removal of Justice Thomas could help make the Supreme Court more liberal—precisely what his enemies want.

So while it’s probable that Justice Thomas will neither have to recuse himself nor undergo impeachment on account of his wife’s text messages, it’s certain that the hunt for ways and means to discredit him will continue with the same unrelenting determination with which Captain Ahab sought to destroy the Great White Whale.  Yet Moby Dick survived.  Will Justice Thomas?

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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