Politics / September 11, 2023

Democrats Need to Grow a Spine and Actually Fight for the Courts

The GOP is trying to impeach judges over nothing, but Dems won’t even go after Clarence Thomas for his very real mega-corruption. Come on!

Elie Mystal
Activists hold signs during a news conference outside the U.S. Capitol calling for immediate resignation of U.S. Supreme Court Associate Justice Clarence Thomas on April 19, 2023

During an April 19, 2023, news conference outside the US Capitol, activists hold signs calling for the immediate resignation of Supreme Court Associate Justice Clarence Thomas.

(Alex Wong / Getty Images)

This past April, Democrat Janet Protasiewicz defeated Republican Daniel Kelly for a seat on the Wisconsin Supreme Court, winning by a whopping 11 points. Her election had massive implications, as it flipped control of the state’s court to the Democrats, 4-3. Protasiewicz is likely to join the other Democrats on the court in overturning the state’s ban on abortion, and un-gerrymandering Wisconsin’s electoral maps, which currently allow for permanent Republican control of the state legislature.

At least all of that would happen, if Republicans accepted the will of the voters. But you must have just fallen off a turnip truck–or be an elected Democrat serving in Washington, D.C.—to think that Republicans are just going to accept losing an election without some antidemocratic trick up their sleeve to nullify those electoral results.

In Wisconsin, as my colleague John Nichols wrote, the Republican plan is to impeach Protasiewicz, before she ever hears a case, for refusing to recuse herself from the redistricting case. Republicans claim that Protasiewicz’s comments during the election (where she expressed preferences for democratic self-government and women being treated as people as opposed to incubators) mean that she’s predetermined her vote on those issues, and cannot rule impartially. Of course, recusal in the state of Wisconsin is left to the sole discretion of judges, but since when do “rules” stop Republicans from getting what they want? They control the state House and Senate (again, thanks to those completely gerrymandered maps), and they don’t intend to give that power up just because a little thing like democracy gets in the way. If all the Republicans toe the line, they have enough votes to impeach Protasiewicz for the crime of winning an election as a Democrat.

But this strategy isn’t just limited to Wisconsin. It’s quickly becoming the GOP playbook all over the country. In North Carolina, the state’s Judicial Standards Commission launched an investigation into state Supreme Court Judge Anita Earls, after Earls said in an interview that the court should examine why it lacks diversity. Earls is the only Black woman judge on the state supreme court. When she was elected to an eight-year term in 2018, Republicans threatened to impeach her if she did not recuse herself from (wait for it) gerrymandering cases involving North Carolina’s redistricting maps. But in 2020, Republicans took control of North Carolina’s courts, 5-2, obviating the importance of Earl’s vote, just like the votes of everybody else Black in North Carolina. Earl has sued North Carolina over its sham investigation into her comments.

And then, of course, there’s Georgia. There, the Republicans aren’t threatening to impeach a judge but a prosecutor, Fulton County’s Fani Willis. Her apparent crime is trying to bring Donald Trump and his 18 coconspirators to justice for their attempts to overturn the results of the 2020 presidential election in Georgia. Willis was elected with 71 percent of the vote in the 2020 Democratic primary for district attorney of Fulton County. She ran in the general election unopposed. The Republicans who couldn’t even be bothered to field a candidate against her in an open election are now interested in impeaching a candidate who, technically, received 100 percent of the vote in her election.

It cannot be said enough that the Republican Party simply rejects democracy, and a vote for any Republican, anywhere, is a vote against the principles of democratic self-government. Republicans believe that they, and they alone, have the right to rule, and they are only interested in counting the votes of those who agree with them.

But what these three fledgling impeachment attempts also show is that Republicans understand that the legal system is a political battlefield, and they are willing to use any means necessary to bend it to their political will. Courts are just politics by other means for Republicans, and they would rather break the legal system entirely than allow Democrats to have any measure of control over it.

Have Democrats gotten the memo? Are Democrats willing to fight for the courts as fiercely as Republicans do? Are they willing to get down into the trench and fight Republicans, jab for thrust, over this political branch of government?

All signs suggest that the answer is “no.” The unwillingness of Democrats to fight can be seen in the case of a judge who isn’t being threatened with impeachment by his political opponents: Clarence Thomas. Which is weird because, unlike the people the GOP is going after, Thomas is one of the most impeachable judges of all time.

Based on what data I have available to me, Clarence Thomas is the most corrupt Supreme Court justice in American history. His vacations, private travel, and even his mother’s house are paid for by wealthy Republicans. His wife was an active and determined supporter of the 2020 coup attempt, and yet he has not recused himself from the coup-related cases that have already made it to his court and shows no signs of doing so in the future. There is simply no charge or innuendo leveled at any Democratic judge or justice that Thomas isn’t guilty of in plain sight.

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But calls to have Thomas impeached are largely being made by people like me who hold no power and aren’t running to get any. Mainstream elected Democrats continue to treat Thomas (and his court) like he is untouchable, and that doing anything to reign him in would make the courts “political.”

To recap: Republicans are trying to impeach state-level judges, and district attorneys they didn’t even run against, because they don’t like their politics. Democrats are afraid to even talk about impeaching a Supreme Court justice who takes his orders from a Nazi memorabilia collector and has conservative billionaires paying for seemingly every part of his life for fear of making the courts look political. As usual, Democrats are trying to master the rules of chess to best their opponents, while Republicans are whittling their queens into shivs so they can stab their opponents in the eye.

Obviously, Republicans have the power to impeach judges they don’t like at the state level, while Democrats don’t have that power at the federal level. I can count to 218 and 60. But my point is that Democrats aren’t threatening to do this, and they certainly aren’t running on it. All 435 Democratic candidates for the House should be running explicitly on a platform of impeaching the cartoonishly corrupt and embarrassing Thomas, and all the Democratic senators, and the Democratic president, should be echoing the calls.

The ironic thing is that, at its core, the case for impeaching Thomas is not even about partisan politics. It’s about the basic principles of clean government. If Democrats started acting like Republicans and moved to impeach judges simply because we don’t like their politics, the impeachment list would stretch for miles. It includes Aileen Cannon, Matthew Kacsmaryk, and a host of unqualified antidemocratic judicial land mines Trump left behind in his wake that I do not want to have to try to dodge for the rest of their natural lives. Candidates running against Ted Cruz in Texas, for instance, should also be explicitly running against Kacsmaryk, and tie every idiotic statement he’s made to Cruz and the entire Republican operation.

That’s because voters get it. After a long time of ignoring the courts the way their Democratic establishment leaders told them to, liberal voters now understand that the courts are where the political action is at. Voters get that the rights and issues they care most deeply about will be decided by the courts. Remember, Protasiewicz, a liberal, won with 55 percent of the vote in Wisconsin. That’s six points better than what Joe Biden did in the state, where he narrowly beat Trump by 1.5 percent. Biden should be running on Protasiewicz’s coattails next time around.

I know it makes some Democratic voters squeamish to use the tactics of our enemies. But that mentality is largely how Democrats lost control of the courts in the first place. Republicans politicized the courts because the courts stood in the way of their racist, anti-gay, forced-birth agenda. If Democrats refuse to fight back, that agenda will be the law of the land, and elections will become the political force that doesn’t really matter.

Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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