The Supreme Court is a Partisan Body...Let's Stop Pretending It's Not

Supreme Court Justice Clarence Thomas

Clarence Thomas should have never been a Supreme Court Justice, let's start there.  For starters, had Thurgood Marshall hung on longer, Bill Clinton would've replaced him with Stephen Breyer or Ruth Bader Ginsburg, and Democrats would've had the majority on the Court for much of the past two decades (Marshall was dying, and assumed that George HW Bush would win reelection...little did he know that he would die four days into the Clinton presidency).  Thomas is the only sitting judge on the court to not receive the distinction of "Well Qualified" when he was nominated, and even that wasn't unanimous (the only other sitting judge not to get a unanimous rating was Amy Coney Barrett, and she managed to get a majority vote of "Well Qualified").  It's also pretty clear in the decades since he was put on the Court that Anita Hill was telling the truth.  Thomas's financial improprieties, willingness to challenge established fact about his behavior & ethics, and the behavior of his wife have all contributed to an aura of "we should probably trust Anita Hill," who's remained consistent in her behavior in the decades since.  His tenure on the Court has long been a joke, barely speaking for decades at a time, and he's by far the most flagrantly conservative justice on the Court, frequently indulging in the logic not of someone grounded in legal fact, but instead grounded in the thought processes of a politician shaping the law.

Thomas' behavior and a national conversation about the Supreme Court is a worthwhile endeavor, in my opinion, but it needs to come with some provisos.  I strongly disagree with John Roberts decision, not based in any sense of law, to decline an invitation to testify before the Senate Judiciary, and I think that Sen. Durbin should press the issue by issuing a subpoena.  The behavior of Thomas, who potentially broke federal ethics law, is a serious endeavor, and both Durbin & the Justice Department should get answers on behalf of the American people, regardless of what happens.  The Court is not above checks-and-balances.  It's the right thing to do, and quite frankly, it's good politics.

What this won't do, and I want to be perfectly clear, is give the Democrats the opportunity to fill Thomas's seat as a result of a resignation.  Thomas is not resigning with Joe Biden in the White House under any circumstance; I doubt even if he was arrested if he'd consider resigning.  The reality is that we have gotten to a point as a country that a Supreme Court seat is worth more than any moral failing.  Donald Trump famously said "I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters."  That wasn't quite the case (as far as I know, Trump has not shot anyone in Manhattan or anywhere else), but it's probably the case for a Supreme Court Justice at this point.  Trump has put a stubbornness and lack of decorum that has made it easy for virtually anyone to stay in office, no matter their sins...honor is out the window in the Trump Era, and no one embodies that quite like Clarence Thomas.

Cynical liberals will use that as an invitation to basically end the conversation-he's not going to resign, what's the point?  The point is because it takes some of the sheen off of a Court that doesn't deserve any cover.  The Supreme Court has flagrantly acted in a partisan manner, perhaps as far back as Bush vs. Gore, but certainly in recent years.  Both in their Court decisions (like the recent Dobbs decision which upended decades of established law) or in the behavior of the judges (not just Thomas, but people like Amy Coney Barrett doing public events with Mitch McConnell or Brett Kavanaugh's behavior in regard to Christine Blasey Ford), the Court is badly in need of reform.  Politicians are reluctant to say this because it upsets established order-if people doubt the legitimacy of the Court, it makes their decisions harder to enforce.  But the Court is already broken-pretending it's not broken is not going to fix it.  We need Court reform, up-to-and-including additional judges and/or term limits onto the Court, to become a mainstream viewpoint of the Democratic Party.  Right now, it isn't, but showing the worst parts of it (namely, Thomas) in a public light would help that conversation.

The other part it underscores is it addresses the reality of this situation-the Democrats are only going to get back the Court by holding power in the executive & legislative branches for as long as possible.  Clarence Thomas would be 80 years old if Joe Biden was reelected, Samuel Alito would be 78.  Both of them would retire immediately if given the chance; in retrospect, it's shocking Thomas didn't retire during the Trump presidency, and perhaps was a true believer like his wife that he would have the opportunity to do so in a second term.  Democrats cannot afford to give them that chance.  The whole "they'll hold conservative majority for 40 years" sky-is-falling only becomes true if R's get to replace Alito/Thomas.  They need to take a lesson from the Wisconsin Democratic Party, which spent a decade trying to align all of the pieces of the puzzle together to be able to control the Wisconsin Supreme Court, and play the long game just like Republicans did for so many decades.  That means reelecting Joe Biden, it means trying to hold the Senate as long as possible (for those who pipe up "Sinema! Manchin!," both of them are likely to be out of the Senate come 2025 so they're not worth worrying about long-term).  Even if Thomas or Alito won't resign...not to be morbid, but eventually the clock will run out for us all.  It is extremely rare for a justice to die in office (it's only happened three times in the last 50 years), and in all three cases a very close presidential election cost the Democrats the chance to replace those judges (Rehnquist, Scalia, & Ginsburg were all replaced by Republicans).  The Democrats are never going to win back their majority unless they are able to deny the Republicans the opportunity to appoint a judge to replace one of their sitting justices, and as a result...they have to keep winning for as long as it takes, even if it means holding your noise to vote for someone you don't love.