What if the Democrats in the US Senate took a leaf out of the book of the Republicans in West Virginia when it came to the US Supreme Court?
Now there was a group of legislators who knew how to keep a Supreme Court in check, and they would not let anything or anyone stop them from doing so.
As most readers will be aware, the ability of two U.S. Supreme Court justices, Clarence Thomas and Samuel Alito, to fairly decide cases has been significantly questioned.
A flag flew outside Alito’s home around the time of President Joe Biden’s inauguration. The flag is associated with the movement that falsely claims the 2020 election was rigged. Another flag associated with the movement flew outside Alito’s beach house. He has blamed his wife for it. Recently, Alito was secretly recorded at an event saying the conflict between the political left and right may be irreconcilable and “one side or the other is going to win.”
Thomas has received numerous generous gifts from a right-wing billionaire and only disclosed them years later when they became public knowledge. His wife was part of the effort to overturn the 2020 election.
Top Democratic politicians in the U.S. Senate, particularly Judiciary Committee Chairman Dick Durbin of Illinois, have been under pressure to confront the justices head-on about their ethical dilemmas. But Durbin recently told the New York Times that the court is “a separate branch of government and has its own authority. There are precedents for what we can and cannot do.”
Many Democrats are frustrated with this approach. But it may be useful to remember what happens when a legislative body goes too far in the other direction and decides to neat up the judiciary at all costs.
Six years ago, Republicans in West Virginia didn’t care much about precedent, so they impeached the state’s entire Supreme Court – the only time in American history that has happened.
At the time, three of the five justices—Margaret Workman, Robin Davis and Menis Ketchum—had been elected as Democrats. Another justice, Allen Loughry, was elected as a Republican. The fifth justice, Beth Walker, won after the state switched to nonpartisan judicial elections, but she had previously run as a Republican (and lost to Workman and Ketchum).
For months, news of state judges overspending had been circulating. Loughry was removed as chief judge by his colleagues after he fired the court administrator and called for a federal investigation. This idea backfired spectacularly for Loughry, as a federal grand jury ended up indicting him on 22 counts. He was ultimately convicted on ten counts.
Likewise, Ketchum was charged with wire fraud for using a government vehicle and credit card on a private golf outing. He pleaded guilty to a felony charge and was sentenced to a fine and probation.
Ketchum resigned one day before the House began impeachment proceedings. But on August 7, 2018, members of the House Judiciary Committee recommended impeaching the other four judges. Loughry had already been charged in federal court, but the charges against the other three mainly concerned expenses for office equipment and salaries for senior judges.
Six days later, the House of Representatives decided to impeach the four judges. Davis resigned the same day and sharply criticized the representatives for their actions.
Just imagine for a moment that Democrats in Congress were to impeach the entire U.S. Supreme Court because there was “an atmosphere of entitlement” among the justices.
That’s what then-House Judiciary Committee Chairman John Shott said after his committee recommended impeaching the entire state court. (Shott also cited the judges’ “arrogant disregard” for using taxpayer money, but it’s protected to say there would have been greater concerns if a judge had secretly received millions of dollars from a donor.)
Walker was acquitted in her impeachment trial. Workman filed suit against her, claiming that the legislature’s machinations violated the separation of powers. A group of district judges, sitting as a provisional Supreme Court, agreed with her.
But in the end, Republicans got what they wanted. With Davis and Ketchum gone, Governor Jim Justice was able to appoint Republican jurists – and not just any Republican jurists. The positions were filled by former House Speaker Tim Armstead (who remains on the court) and Evan Jenkins, who gave up his seat in Congress for the judgeship.
At his press conference with Armstead and Jenkins, Justice said, “What we need to do more than anything is to make amends, to move on, and to show the nation how committed we are as West Virginians to a solid and, in my opinion, unquestionably conservative court.”
Imagine, again, if Dick Durbin or Chuck Schumer said that America had lost faith in the Supreme Court and one of their goals was to replace right-leaning justices with left-leaning ones.
No one is seriously suggesting that Democrats nationally should follow the West Virginia Republicans’ 2018 plan to nuke the entire court. But there is a lot of middle ground between that plan and what Democrats are doing now.
