Looking at Article II Section 2 of the United States Constitution, one sees the presidential power to nominate and to appoint individuals such as Ambassadors and Judges of the Supreme Court. While it is accepted that Ambassadors serve at the pleasure of their appointing president, there is no Section 2 mention of the duration of an appointment to the Supreme Court.
Skipping then to Article III one sees at Section 1 that judges of the Supreme or inferior courts serve “during good behavior.” It is only in Section 2 of Article III that one sees mention of impeachment. Looking back to Section 4 of Article II one sees the familiar grounds for impeachment: treason, bribery, or other high crimes and misdemeanors. Such are the grounds for removal from the office on impeachment.
So compare, if you will, the impeachment standard of Article II to the “during good behavior” standard of Article III. The CLB position is that there is plenty of potentially bad behavior that is not necessarily impeachable. Still such non-impeachable bad behavior constitutes Article III cause for the removal of a Supreme Court Justice.
About Associate Justice Clarence Thomas there seems to be an abundance of bad behavior in the form of previously undisclosed favors from rich friends. The bad behavior is either the acceptance of such favors and/or the failure to voluntarily disclose that acceptance. Chief Justice John Roberts is within the shadow of the appearance of impropriety due to the circumstance of large law firms throwing buckets of money at his wife for her “recruitment” efforts.
The CLB position is that it is time for Justice Thomas to go. He has demonstrated enough bad behavior for an Article III removal on grounds that would probably not support an impeachment.
Where do you try an Article III removal? The CLB imagines that such a trial would take place in the Senate, as in the case of impeachment. A clear Democratic majority in the Senate and a majority in the House (to charge grounds for removal) are necessary before removal proceedings stand a chance. Justice Thomas may well depart from the Supreme Court before then.
The deserved removal of Justice Thomas should be sufficient warning to the remainder of the Court to declare ethical standards and to abide by them. The theory here springs from the high Court’s 2022 reversal of Roe v. Wade simply by reason of changed conservative/liberal numbers there. An Article III removal is a logical way to impact those numbers without an unlikely impeachment or the “stacking” of an enlarged Supreme Court, as threatened once by FDR.
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