Clarence Thomas must resign — or be impeached

The proverbial faucet of ethics scandals around Supreme Court Justice Clarence Thomas continues to drip. The Washington Post reported Thursday that conservative activist Leonard Leo, a key architect of the right’s takeover of the court, arranged in 2012 for Thomas’ wife, Virginia "Ginni" Thomas, to be paid tens of thousands of dollars for consulting work. And he specifically requested that the billing paperwork have “No mention of Ginni, of course.”

While neither NBC News nor MSNBC have independently verified the report, Leo issued a statement to the Post that didn’t deny the story. Asked why he sought to hide Ginni Thomas’ name, Leo said, “Knowing how disrespectful, malicious and gossipy people can be, I have always tried to protect the privacy of Justice Thomas and Ginni.”

The new scandal follows reports from ProPublica that in the decades since Clarence Thomas became a Supreme Court justice, billionaire donor Harlan Crow has provided the Thomases with gifts and luxury trips, purchased the justice’s mother’s home and paid for the expensive private school tuition of their grandnephew, who was in the Thomases’ legal custody.

Neither NBC News nor MSNBC have independently confirmed the latter report either, but a close friend of the justice acknowledged it in a statement. In response to each ProPublica report, Crow has issued statements either confirming or not disputing the stories. While Thomas has acknowledged the gifts and trips, which he described as "personal hospitality from close personal friends," he has not commented on the real estate sale or the tuition payments.

But enough is enough. Thomas must resign — or be impeached.

Unprecedented ethical breaches demand an unprecedented response.

A few lawmakers have already grasped this reality, including Reps. Alexandria Ocasio-Cortez, D-N.Y.; Cori Bush, D-Mo.; and Summer Lee, D-Pa. Others — such as Sens. Ed Markey, D-Mass., and Richard Blumenthal, D-Conn. — have at least called for Thomas’ resignation. But even many critics of the justice have remained mum about any consequences for his behavior. Their reticence is understandable. Impeaching a Supreme Court justice, after all, is highly unusual. The legislative branch must tread carefully given concerns about separation of powers. And impeachment will never even come up for a vote in the Republican-controlled House.

But reluctance to take this extraordinary step, though rational, is mistaken. Unprecedented ethical breaches demand an unprecedented response. The closest precedent to Thomas — Justice Abe Fortas — rightly resigned over improper financial dealings. (He also stepped down to avoid a meritless investigation of his wife by Richard Nixon’s Justice Department, political hardball that Republicans would still be complaining about today had it happened to a conservative justice.) The allegations against Thomas are unlike any in the history of the high court; any other government official, including any lower court judge, would face deafening calls to step down.

And the excuses for Thomas’ behavior — both from the justice and his allies — have been ludicrous. After initially refusing to comment on the first report, about luxury trips and lodgings, Thomas then emerged to claim that “personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”

As MSNBC columnist and ethics lawyer Richard Painter and others have pointed out, the “personal hospitality” exception in the relevant statutes has never included travel. Furthermore, Crow was on the “founders committee” of the anti-tax Club for Growth, which he co-founded, when the court heard a case involving the group. Crow’s family also held a non-controlling interest in a real estate company whose case was considered by the court. In neither instance did Thomas recuse himself. Similarly, Leo’s payment to Ginni Thomas came through a group called the Judicial Education Project. The fee, and the request for “No mention of Ginni,” came the same year that JEP filed a brief with the court in a key voting rights case.

Regardless, when ProPublica confronted the justice with the real estate sale — which indisputably should have been disclosed — Thomas chose silence again, and has stuck with that course in the face of subsequent stories. Then again, his silence looks sage compared to Republican lawmakers’ reactions. Senate Minority Leader Mitch McConnell, R-Ky., for example, dismissed the first ProPublica story as “silly,” mocking the “horror that one Supreme Court justice vacations with his friends.” Sen. Mike Lee, R-Utah, labeled Thomas’ critics as “intolerant bigots.” These are defenses offered when there is no defense.

Impeachment would require Republicans to go on the record defending wealthy patrons for Supreme Court justices.

Again, in practical terms, impeachment will never pass the House, let alone receive a two-thirds majority for conviction in the Senate. But Democrats twice pursued the impeachment of Donald Trump through to the end, long after it was clear he wouldn’t be convicted. They correctly judged that even an unsuccessful impeachment was worth the message that action would send. While the fault for Thomas’ actions ultimately lies with the justice himself, his conservative allies have abetted his behavior. Impeachment would require Republicans to go on the record defending wealthy patrons for Supreme Court justices and generally beclowning themselves as unprincipled defenders of a corrupt system.

“The job is not worth doing for what they pay,” Clarence Thomas said in a 2001 speech. “But it is worth doing for the principle.” A noble sentiment — undercut by the fact that Thomas has behaved as though he is entitled to both riches and a seat on the nation’s highest court. Yet the deliberate concealment of gift after gift suggests that he knows this belief is wrong.

If Clarence and Ginni Thomas want to live in the lap of luxury, he should step down to pal around with his wealthy friends. If Ginni Thomas wants to continue her work as a conservative activist, then her husband should resign to let her pursue her passion. Every day that Clarence Thomas sits on the court is an affront to the idea of an impartial judiciary and ethical government. Democrats need not pretend they must be a part of this farce.