Washington Post Staff Writer
Sunday, October 31, 2010; 6:03 PM
All across the country Tuesday, political incumbents are bracing for judgment from an angry electorate. So perhaps members of the Supreme Court should not be surprised that they are in somebody's sights, as well.
Justices, of course, can't be voted out. They serve for life, or as the Constitution puts it, "shall hold their Offices during good Behavior."
But that hasn't stopped calls from both the left and the right recently for the House to open impeachment hearings for, alternately, Justice Clarence Thomas, Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor.
None of the complaints is gaining traction, but they do seem to indicate a desire to do something about the court's rulings or recent developments that some say violate testimony given at justices' confirmation hearings.
"These are sulphurous times," said Dennis Hutchinson, a Supreme Court scholar at the University of Chicago law school. "And the only stick you can wave at a federal judge is impeachment."
He quickly noted that such demands almost never get very far.
The only justice ever served with impeachment was Samuel Chase in 1805, charged with being overtly partisan. He was cleared by the Senate and served another six years.
Those old enough will remember "Impeach Earl Warren" billboards that sprouted across the South after the court's desegregation rulings in the 1950s. And there were two impeachment attempts against Justice William O. Douglas: one for granting a brief stay of execution in the Rosenburg spy case and another for alleged financial improprieties.
Gerald R. Ford, then the House minority leader, led the latter, and the House Judiciary Committee held hearings in 1970. No credible evidence emerged, and the hearings closed without a public vote.
"But Douglas used to say that he was terrified he was going to be thrown off," said Hutchinson, a former clerk to the justice.
In Thomas' case, it is an old charge renewed. It was resurrected by the call his wife Virginia Thomas made to Anita Hill, asking her to apologize for the sexual harassment charges Hill made at Clarence Thomas' confirmation hearings more than 19 years ago.
Hill instead publicized the call and repeated the accusations. Then came a former girlfriend of Thomas, who had kept her silence since the 1991 controversy.
Administrative law judge Lillian McEwen told The Washington Post that she found Hill's description of Thomas "consistent with the way he lived his personal life then." Thomas has declined comment.
The disclosure has not prompted much interest in Congress to relive the controversy. But a small band of liberal civil rights activists say it should.
"The laws are clear [that] perjury to Congress is a crime and an impeachable offense," Earl Ofari Henderson of the Los Angeles Urban Policy Roundtable wrote to House Judiciary Committee Chairman John Conyers on behalf of himself and others. "The House is duty-bound to bring articles of impeachment against Thomas."
Rep. Peter DeFazio (D-Ore.) is pushing the case against Roberts. His offense, DeFazio said, was the court's 5 to 4 decision in Citizens United v. Federal Election Commission , which said corporations and unions are protected by the First Amendment in using their general treasuries for unlimited electoral advocacy.
DeFazio, on the negative end of some of that spending in Tuesday's elections, told Huffington Post that he'd had enough.
"They've opened the floodgates, and personally, I'm investigating articles of impeachment against Justice Roberts for perjuring during his Senate hearings, where he said he wouldn't be a judicial activist, and he wouldn't overturn precedents," DeFazio said.
His calls have not received much support. But they have prompted some conservatives to say: Well, what about Sotomayor?
Republican senators have complained about Sotomayor's testimony, in which she said the court's ruling in District of Columbia v. Heller , which for the first time recognized an individual's right to gun ownership, was "settled law."
But last term, when the court was asked whether that right also applied to state and local government efforts to restrict gun ownership, she sided with the three dissenters from Heller in an opinion that made the question seem anything but settled.
According to the group Justice at Stake, which says its purpose is to support an independent judiciary, such decisions should not provoke retaliation.
"Almost every American, liberal and conservative, has been angered by particular legal rulings, but that's because we ask courts to settle tough legal disputes," the group's executive director Bert Brandenburg said in a statement.
"It is reckless to threaten judges with ouster simply because we don't like a particular decision."
Still, the Internet buzzes with impeachment calls, including one for new Justice Kagan, who has heard a total of four cases.
Adam Freedman, a commentator at Ricochet.com, lays out a prospective perjury case against the former solicitor general, who said there is not a federal constitutional right to same-sex marriage. If she finds later that banning same-sex marriage is unconstitutional, maybe hearings will be warranted.
Freedman brings up the point mainly to call DeFazio a "crank" for his Roberts remarks. But "being a crank myself," Freedman wrote, "I like to get started early."