A Job Without Rules

Spectator

By Stephen Tuttle | May 6, 2023

Being a federal judge is a pretty good job that lasts forever.

Article III, Section 1 of the U.S. Constitution says federal judges “…shall hold their Offices during good Behaviour…” The practical result is that judges essentially hold those offices regardless of their behavior.

The mechanism for removing them is impeachment and conviction, but in the entire history of our country, during which there have been thousands of federal judges, only 66 have even been investigated for the possibility of impeachment, only 15 have actually been impeached, and only eight have been convicted and removed from office.

At the very top of the federal judiciary, the Supreme Court of the United States (SCOTUS), not a single justice has ever been removed via impeachment, and only one, Samuel Chase in 1805, has ever been impeached. Chase, accused of favoritism and bias, was acquitted by the Senate.

Only one sitting Supreme Court justice has ever been removed by any means. John Rutledge was a recess appointment—appointed while the Senate was in recess so they did not have the chance to confirm—of George Washington. The Senate returned somewhat cranky because Washington had circumvented them. They refused to confirm Rutledge and he lost his seat, the only justice ever to leave the court involuntarily.

It’s not as if every justice has been an ideal citizen. It’s just that it is very hard to get rid of those who are not.

James McReynolds, who was U.S. Attorney General under Woodrow Wilson and was appointed to SCOTUS in 1914 by Wilson, was not what you would call open-minded. Raised on a Kentucky plantation, he was an overt racist, sexist, and antisemite (he would leave the SCOTUS hearing room rather than listen to a Jewish lawyer) who served until his retirement in 1941. So detested by his colleagues was McReynolds that when he died in 1946, not a single SCOTUS justice attended his funeral. But he could not be removed from the court.

Hugo Black, considered one of the more influential members of SCOTUS during his 34 years on the bench, was nominated by Franklin Roosevelt. After his confirmation it was revealed he was a former member, organizer, and leader of a Ku Klux Klan chapter. He claimed he had reformed and stayed on the court despite his background.

Abe Fortas, a Lyndon Johnson nominee, became the first and only justice to resign from the court under the threat of impeachment. Though he always steadfastly denied the accusations, there was evidence he had agreed to receive annual payments from a shady financier in exchange for favorable treatment at the court.

All of this comes to mind as we discover more about the outside influences potentially infecting our current SCOTUS.

It’s already been widely reported that Clarence Thomas has received many millions of dollars worth of free luxury travel and gifts from billionaire Harlan Crow, who also financed an organization for Thomas’ wife and then paid her $120,000 annually to run it. We now also know Crow bought a house owned by Thomas, his mother, and his brother. Thomas justified it all by claiming he has a close personal friendship with Crow. As has been previously reported, the Crow/Thomas friendship did not begin until after Thomas had been on the court for five years.

Thomas is not the only justice who got a lucky house-selling break after being confirmed. Neil Gorsuch and partners owned acreage and a cabin in Colorado they had been trying to sell for two years. Nine days after he was confirmed, a lawyer working at the mega law firm of Greenberg Traurig, which appears frequently before SCOTUS, purchased the property. (During Gorsuch’s tenure, 12 cases have reached SCOTUS in which Greenberg Traurig either represented clients or had some affiliation with them. In those cases, Gorsuch voted favorably for Greenbereg Traurig interests eight times and against them four.)

Even Chief Justice John Roberts, who has otherwise been above reproach, now has questions to answer. His wife started a business after Roberts became chief justice in which she recruited lawyers for elite law firms, many of which had, or still have, business before SCOTUS. She was paid more than $10 million in commissions for her eight years of work.

You would think there must be some kind of conflict-of-interest rules for federal judges, and you would be right. There is, in fact, a federal statute requiring federal judges to recuse themselves from any case “…in which his impartiality might reasonably be questioned.” But that rule does not apply to SCOTUS, which has almost no rules regarding ethics at all.

And it appears at least some members of the court, free from the consequences of their own behavior, are willing to take full advantage of a job without rules.