Legal analysts speculate on impeachment: Could Clarence Thomas lead the trial?

November 18, 2019

One of the Supreme Court’s most conservative justices could preside over President Donald Trump’s impeachment trial — if it comes to that.

At least, that was the assessment of constitutional law professors Josh Blackman and Seth Barrett TillmanIn a piece first published on the legal blog Balkinization on Sunday, the legal scholars argued that Clarence Thomas could be the one who oversees the trial that could lead to Trump’s removal.

What if…?

According to Blackman and Barrett Tillman, the vice president presides over most impeachments. But when it’s the president who is facing removal, that job falls to the Supreme Court’s chief justice — in this case, John Roberts.

But what if Roberts were to pass away or otherwise become incapable of conducting his duties? While the Constitution does not address the question directly, Blackman and Barrett Tillman claim to have an answer.

“By all accounts, Chief Justice Roberts is in good health,” they noted. “But in the unlikely scenario that Roberts is unavailable, Clarence Thomas, the most senior Associate Justice, would preside.”

The pair explains that “the Constitution refers to a Chief Justice and ‘judges of the Supreme Court’—not ‘Associate Justices.’ The Judiciary Act of 1789, and not the Constitution, introduced the term Associate Justice,” they added.

This, they say, “suggests that the First Congress intended that the other judges of the Supreme Court could serve as substitutes for the Chief Justice.”

In other words…

The authors go on to cite legislation from 1948 that states: “Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.”

“In other words,” Blackman and Barrett Tillman conclude, “if the Chief Justice cannot perform his duties, then the associate justice with the most seniority — known as the Senior Associate Justice — serves as acting Chief Justice.” And having served since 1991, Justice Thomas is the most senior figure on the Supreme Court.

Nominated by then-President George H.W. Bush in 1991 to fill the vacancy left by Justice Thurgood Marshall, Thomas was hit by sexual harassment allegations early in his confirmation hearings. His accuser was a former subordinate named Anita Hill, who many felt had credibility issues, according to National Review.

For his part, Thomas denied any wrongdoing and characterized efforts to derail his appointment as “a high-tech lynching,” according to The Washington Post. He was later confirmed to the high court, and has remained a strong conservative voice on the bench ever since.

Still, at 64 years old, Chief Justice Roberts remains healthy as a horse compared to other justices, like the 86-year-old Ruth Bader Ginsburg, whose health struggles have kept her home from work more in recent months than ever before. But if Thomas does get the chance to take Roberts’ place and preside over impeachment, President Trump surely wouldn’t be complaining.

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Adam Peters

Adam Peters is a Conservative Institute staff writer.