Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The Federal Judiciary is considering whether there should be more
Speaker 2: guidance for judges about hiring law clerks after two judges
Speaker 2: hired a clerk who was reported to have sent racist texts,
Speaker 2: and that clerk then went on to get a clerkship
Speaker 2: with Supreme Court Justice Clarence Thomas joining me is an
Speaker 2: expert in legal ethics. Arthur Hellman, a professor at the
Speaker 2: University of Pittsburgh Law School. So House Democrats in twenty
Speaker 2: twenty one had filed a complaint against Chief Judge William
Speaker 2: Pryor of the Eleventh Circuit and District Judge Corey Mays
Speaker 2: of the Northern District of Alabama into the hiring of
Speaker 2: this clerk. Tell us about the controversy and what ended
Speaker 2: up happening well.
Speaker 1: The controversy centers around the investigations that judges Prior and
Speaker 1: May's the circuit judge and the district judge carried out
Speaker 1: with respect to this individual. Because I understand it, the
Speaker 1: question is whether they adequately vetted her before hiring her.
Speaker 1: And the chief Judge of the second Circuit, to which
Speaker 1: the proceeding was transferred, found that they did all they
Speaker 1: were required to and dismissed the complaint, and the Judicial
Speaker 1: Council of the Circuit affirmed that dismiss So the proceeding
Speaker 1: was completed, but the Committee of the Judicial Conference of
Speaker 1: the United States what it should be reopened, and that's
Speaker 1: what gave rise to one of the requests at the
Speaker 1: March meeting of the Judicial Conference to look into that
Speaker 1: review process. So we have two separate issues here, one
Speaker 1: that involves the Committee on Codes of Conduct and the
Speaker 1: other that involves the Committee on Judicial Conduct and Disability.
Speaker 2: How much investigation of clerks should judges be doing well?
Speaker 1: I think that's one of the issues that the Committee
Speaker 1: on Codes of Conduct will be looking into. What is
Speaker 1: due diligence in this respect and what are the ethical
Speaker 1: obligations of a federal judge. It's important to emphasize that
Speaker 1: the Committee on Codes of Conduct is tasked with interpreting
Speaker 1: and giving guidance based on the Code of Conduct. It
Speaker 1: is not otherwise in the business of telling judges how
Speaker 1: to run their chambers or here the two overlap a
Speaker 1: little bit, But for example, is it enough that the
Speaker 1: judge asks the clerk Is there anything you've done in
Speaker 1: the past that would embarrass you or me if it
Speaker 1: came out now, or should the judge carry out is
Speaker 1: it her own investigation? Now? I don't do much social
Speaker 1: media myself, so I'm not really the person to talk
Speaker 1: about that in detail. But my sense is that a
Speaker 1: thorough background investigation of that time will be very time
Speaker 1: consuming and laborious, and I'm not sure a judge should
Speaker 1: be expected to do that. A judge should be able
Speaker 1: to ask the law clerk if there is any such
Speaker 1: material in the works past, and take the clerk's word
Speaker 1: about that. But the Committee on Codes of Conduct might
Speaker 1: decide that something something more than that is required. But
Speaker 1: their task at this point is to consider the process
Speaker 1: by which judges hire their law clerks, law clerks who
Speaker 1: may have something in their past that cast doubt on
Speaker 1: the fitness of the clerk presence service as a law
Speaker 1: clerk to a federal judge.
Speaker 2: How long might this process take?
Speaker 1: That I think is one of the issues that the
Speaker 1: committee will have to consider. I mean, this is not
Speaker 1: the major thing that a judge does. I mean, it's
Speaker 1: a very important part of the judges work. But the
Speaker 1: judges nominated and confirmed to decide cases. So every minute
Speaker 1: that is taken away from those tasks, the judges not
Speaker 1: doing what or she was nominated and confirmed to do so.
Speaker 1: Figuring out how thorough the investigation should be and whether
Speaker 1: there are any particular things a judge should do in
Speaker 1: checking on a law clerk is one of the questions
Speaker 1: that the Committee and Codes of Conduct will now be
Speaker 1: looking into.
Speaker 2: They also wanted to get your position on the conservative
Speaker 2: federal judges who announced they were going to boycott and
Speaker 2: clerks from particular law schools where there were demonstrations and
Speaker 2: disruptions on campuses. These are law schools that would be
Speaker 2: considered liberal. So just eliminating a whole block of students
Speaker 2: because of what happened on their campuses.
Speaker 1: Well, that raises some related but distinct and very interesting
Speaker 1: and important issues. Actually, I think our key to this
Speaker 1: is why the federal judges are taking that possession. For example,
Speaker 1: a judge might say, if a student has gotten his
Speaker 1: or her legal education at a law school that discourages
Speaker 1: dissent and allows raucous intrusions on presentation of unpopular views,
Speaker 1: that environment diminishes the quality of the education that the
Speaker 1: student gets. Because an important part of legal education, important
Speaker 1: part of legal reasoning is listening to other views and
Speaker 1: processing them and responding to them in a professional way.
Speaker 1: So a judge might think the person in his chambers
Speaker 1: should be somebody who's gotten a legal education that is
Speaker 1: not tainted in that way. And you know, maybe we
Speaker 1: should back up a minute, because it really relates to
Speaker 1: both of these topics very were Judges today have very
Speaker 1: very heavy workloads, and they're very heavily dependent on their
Speaker 1: law clerks. So it's important that these clerks have gotten
Speaker 1: the best possible training. So as I say, if the
Speaker 1: judge believes that some of the practices at a particular
Speaker 1: law school diminish the quality of the training, I think
Speaker 1: that would be a legitimate job related reason for not
Speaker 1: hiring students from that law school, even though it is
Speaker 1: in a sense to the students. Although you know, if
Speaker 1: you look at it more broadly, you talk about boycotts. No,
Speaker 1: there are many judges who are their law clerks only
Speaker 1: from let's say top fourteen or top twenty, whatever it
Speaker 1: is law schools. Are they boycotting the other one hundred
Speaker 1: and eighty? I don't think we would ordinarily say that,
Speaker 1: would say that the judges decided, rightly or wrongly, that
Speaker 1: the most effective way of finding good law clerks is
Speaker 1: to stick with a small number of elite law schools
Speaker 1: where they know some faculty and can rely on recommendations.
Speaker 1: So if the reason is related to the carrying out
Speaker 1: of the judge's adjudicated responsibilities, I'm not sure I see
Speaker 1: a problem in them.
Speaker 2: Choosing law clerks from the best law schools because you
Speaker 2: think that they'll be the best clerks. Seems different to
Speaker 2: me than not choosing students from top schools like Stanford
Speaker 2: and Yale because some conservative speakers face blowbacks on campus.
Speaker 1: It may be problematic if the judges are doing this
Speaker 1: to change the culture in the law schools. I say, maybe,
Speaker 1: because judges are allowed to write and speak out on
Speaker 1: the improvement in the legal profession, and maybe it's part
Speaker 1: of that, or a small step further to say that
Speaker 1: judges can hire their law clerks in a way that
Speaker 1: they believe will improve the culture at law schools. But
Speaker 1: that's a very different kind of motivation or purpose, and
Speaker 1: that when I think, would be more controversial. As I say,
Speaker 1: I think you can make a case that that is
Speaker 1: legitimate within the code of conduct. But other people might
Speaker 1: say that it looks like using the judge's position to
Speaker 1: advance the judge's personal interests, which is one of the
Speaker 1: things that the code explicitly prohibits. So it's a question
Speaker 1: of how you view that. Is it a way of
Speaker 1: improving the legal profession, which is something the judge is
Speaker 1: explicitly allowed to do under the code, or is it
Speaker 1: advancing a personal interest, which is something the judge is
Speaker 1: explicitly prohibited from going.
Speaker 2: I'll just note these conservative judges were Trump appointees. Did
Speaker 2: they face any consequences because of this?
Speaker 1: I think possibly a complaint has been filed a while
Speaker 1: that I'm pretty sure no order has been issued. Certainly
Speaker 1: there have been criticisms from other judges about the so
Speaker 1: called boycott. The grounds have been along the lines that
Speaker 1: I suggested that the judges are using their position to
Speaker 1: change the culture at law schools, and that's a misuse
Speaker 1: of the judicial position, that judges should be concerned in
Speaker 1: their hiring only with getting the people for their chambers.
Speaker 2: Let's turn out of the resignation last week of a
Speaker 2: judge in Alaska over allegations of sexual misconduct. A federal
Speaker 2: judge in Alaska Joshua Kindred resigned and could face impeachment
Speaker 2: after an investigation found that he had an inappropriate sexual
Speaker 2: relationship with a female law clerk, and that he created
Speaker 2: a hostile work environment and appeared to have no filter
Speaker 2: in his discussions with clerks, discussing his romantic preferences, his
Speaker 2: sex life, his divorce, the law clerk's boyfriends and dating lives,
Speaker 2: on and on. The investigation by the judiciary into the
Speaker 2: Trump appointee resulted in a one hundred and five page
Speaker 2: report with more than one thousand pages of exhibits, including
Speaker 2: seven hundred pages of text messages between the judge and
Speaker 2: his clerks. The inquiry could lead to the reopening of
Speaker 2: multiple criminal cases that came before Kendrick during his more
Speaker 2: than four years on the bench. I've been talking to
Speaker 2: legal ethics expert Arthur Hellman, a professor at the University
Speaker 2: of Pittsburgh Law School. So there was this outrageous conduct,
Speaker 2: but it took almost two years after the chief Judge
Speaker 2: learned about it for the judiciary to complete its investigation.
Speaker 2: And in those two years there were criminal cases that
Speaker 2: came before Kindred, And now these findings could lead to
Speaker 2: the reopening of many of those cases.
Speaker 1: And others well, it is somewhat caauseling because the evidence
Speaker 1: has presented in the Judicial Council report is so strong.
Speaker 1: You would think it would not have taken almost two
Speaker 1: years to find all that evidence and to come to
Speaker 1: a conclusion that this individual was unfit to serve as
Speaker 1: a federally the conclusion they reached when they referred the
Speaker 1: matter to Judicial Conference at the United States for a
Speaker 1: consideration of possible recommendation to Congress for consideration of impeachment,
Speaker 1: that is a little hard to understand. What maybe is
Speaker 1: that the people they talk to were initially reluctant to
Speaker 1: speak out, and if that's so, it really raises some
Speaker 1: very troubling issues because, as you know, it was it
Speaker 1: five or six years ago now, the Judiciary completely revamped
Speaker 1: its procedures regarding the workplace in the wake of the
Speaker 1: accusations against pulling the judge Alex Kozinski, and I have
Speaker 1: to say I thought they had done a pretty good
Speaker 1: job and that they were really trying to create, as
Speaker 1: Chief Justice Roberts put it, an exemplary workplace in every
Speaker 1: judicial chamber, and particularly in the Ninth Circuit, which has
Speaker 1: been a leader in this as in so many other
Speaker 1: administrative aspects of the federal judicial that this took that
Speaker 1: long to get resolved is very troubling, and I think
Speaker 1: it does call lass for another look at how the
Speaker 1: judiciary is handling this very important aspect of the administration
Speaker 1: of the federal courts.
Speaker 2: The repercussions from this are going to be enormous. Federal
Speaker 2: prosecutors in Alaska have identified nearly two dozen criminal cases
Speaker 2: with potentially undisclosed conflicts of interest involving former Judge Kindred
Speaker 2: and the attorneys who worked on the cases before him.
Speaker 2: Three of those are in the US Attorney's office.
Speaker 1: Well, I'm not an expert on federal criminal prosecutions, but
Speaker 1: what I will say is that that aspect of this
Speaker 1: particular case underscores the point you made initially that there
Speaker 1: was a particular reason here for proceeding with some swiftness,
Speaker 1: giving all due process to the judge. But there were
Speaker 1: some particular reasons here why the matter should have been
Speaker 1: resolved as quickly as possible so that these repercussions would
Speaker 1: be minimized.
Speaker 2: The judge did recuse himself in some cases. How is
Speaker 2: it determined whether there was a conflict of interest?
Speaker 1: Well, what the statute says is apart from some specific
Speaker 1: circumstances where a judge must recuse, for example, where the
Speaker 1: judge has a financial interest in the outcome of the case,
Speaker 1: the more general provision says that a judge must accuse
Speaker 1: if a reasonable person would doubt the judge's impartiality, and
Speaker 1: judicial interpretations of that statute set from four fifty five
Speaker 1: have said that you look at that question from the
Speaker 1: standpoint of a re reasonable person outside the court, but
Speaker 1: informed of all the circumstances. So those are the elements
Speaker 1: of the test. It's an objective test. Again, it's a
Speaker 1: reasonable person, but not a person within the judiciary, because
Speaker 1: the courts have said that people within the judiciary may
Speaker 1: be too inclined to discount the possibility that the judge
Speaker 1: would look partial or biased. So you look at the
Speaker 1: reasonable person outside the judiciary. But at the same time,
Speaker 1: the reasonable person is fully informed of the circumstances, and
Speaker 1: so the judge has to put himself or herself in
Speaker 1: the position of that reasonable person.
Speaker 2: Can you think of another case where there was misconduct
Speaker 2: like this by a judge and criminal cases got thrown
Speaker 2: out or retried.
Speaker 1: No, nothing comes to mind. I mean, you do have
Speaker 1: a somewhat parallel situation with the bankruptcy judge in Texas,
Speaker 1: don't you where they are in the process of upsetting
Speaker 1: I think, or at least questioning some of the decisions
Speaker 1: made by the bankruptcy judge who was in a romantic
Speaker 1: relationship with a bankruptcy lawyer. So I think that is comparable.
Speaker 1: You mentioned the repercussions going forward. I think one of
Speaker 1: the most interesting questions and important questions about the Alaska
Speaker 1: judge is how did a person get to be a
Speaker 1: federal judge. I mean, this is a young guy, and
Speaker 1: this kind of behavior seems to me not the sort
Speaker 1: of thing that suddenly happens that a person suddenly engages in,
Speaker 1: and you would think that there would be some evidence
Speaker 1: of this in his career and his behavior as a lawyer. Now,
Speaker 1: as you know, before somebody is appointed to the federal bench,
Speaker 1: there's a very intense investigation. As it's more than one.
Speaker 1: There's the FBI, there's the White House, there's the ABA.
Speaker 1: The FBI in particular is very thorough. For example, I've
Speaker 1: gotten calls about people who worked for me briefly thirty
Speaker 1: years earlier because the nominee is required to list every
Speaker 1: person he or she has ever worked for. So how
Speaker 1: did Joshua Kindred get through that process where there are
Speaker 1: no warning signals in any of the conversations that FBI
Speaker 1: agents or the ABA committee members had members of the
Speaker 1: Alaska legal community that would have alerted them to the
Speaker 1: very real possibility, which turned out to be the reality
Speaker 1: that this that you or just did not have the
Speaker 1: temperament to be a federal judge. Now, by the way,
Speaker 1: you had a similar failing twenty five years ago with
Speaker 1: Judge Fortius, who was impeached and convicted for actual bribery
Speaker 1: and other criminal activity that he had engaged in for
Speaker 1: many years in Louisiana and which has to have been
Speaker 1: known by many of the people in Louisiana legal community.
Speaker 1: That was another failure in my view, the vetting process,
Speaker 1: as far as I know, nobody has ever looked into
Speaker 1: or written about. But I think there's a serious concern
Speaker 1: here that the vetting process at the nomination slash confirmation,
Speaker 1: and it's really a nomination, you don't expect the Senate
Speaker 1: Judiciary Committee to carry out the kind of in depth
Speaker 1: investigation that the FBI, with all of its resources can
Speaker 1: do or that the a BA can do with its
Speaker 1: members in every state and every legal community. Those two
Speaker 1: organizations have the resources to carry out in depth investigations,
Speaker 1: and we really have to depend on them. In a
Speaker 1: likelihood they missed this. You know, it's possible that you know,
Speaker 1: that he had a complete personality change on the belt,
Speaker 1: and there's some suggestion that the isolation in the COVID
Speaker 1: lockdowns had some influence. But you know, isolation doesn't turn
Speaker 1: a man into this, this course speaking individual who harasses
Speaker 1: women in the way he did. You know, even to
Speaker 1: read about his behavior, it's an embarrassment, and behavior of
Speaker 1: that extreme, it seems to me doesn't start overnight or
Speaker 1: when a man takes the oath as a federal judge.
Speaker 1: To have been some signals in his earlier behavior that
Speaker 1: should have been called. So I would hope that one
Speaker 1: of the consequences of this very sad and unfortunate proceeding
Speaker 1: is that there will be a look not only at
Speaker 1: the procedures within the federal judiciary we haven't talked about,
Speaker 1: but within the executive branch and the vetting of judicial nominees.
Speaker 2: Considering all the information out there about hostile work environments
Speaker 2: and the legal case is over. It it's almost hard
Speaker 2: to believe that this judge didn't recognize what he was doing.
Speaker 1: Going back to our prior discussion of the Ninth Circuit
Speaker 1: and the Federal Judiciary putting new procedures in place, is
Speaker 1: that it may be that the panoply of procedures is
Speaker 1: possibly part of the problem now because one of the
Speaker 1: things I think that is absolutely essential is that there'd
Speaker 1: be one person who is responsible. You know, if everybody
Speaker 1: is responsible, then nobody is responsible. And here it's the
Speaker 1: Chief Judge. And I don't know if the Chief Judge
Speaker 1: addedly conveyed the message that if federal judge is misbehaving,
Speaker 1: I want to know about it. I will take action
Speaker 1: and I will make sure there's no retaliation.
Speaker 2: Thanks so much for coming on the show, Arthur as
Speaker 2: Professor Arthur Hellman of the University of Pittsburgh Law School
Speaker 2: coming up next on The Bloomberg Law Show. Articles of
Speaker 2: impeachment have been filed against Justice Clarence Thomas and Justice
Speaker 2: Samuel Alito. You're sure to fail, So what are the repercussions.
Speaker 2: I'm June Grosso. When you're listening to Bloomberg, New York
Speaker 2: Representative Alexandria Zeo Cortes has filed articles of impeachment against
Speaker 2: Supreme Court Justices Clarence Thomas and Samuel Alito for what
Speaker 2: she said was their failure to report gifts and refusal
Speaker 2: to recuse from cases in which they were conflicted. Progressives
Speaker 2: and others have criticized both justices over reports they accepted
Speaker 2: vacations from wealthy people and failed to recuse from cases
Speaker 2: despite conflicts they said were created by their spouses. The
Speaker 2: success of either resolution against arguably the Court's two most
Speaker 2: conservative justices is unlikely given the Republican control of the House.
Speaker 2: The New York Democrat and Maryland Democratic Representative Jamie Raskin
Speaker 2: wrote to Chief Justice John Roberts on June twentieth, urging
Speaker 2: him to investigate Thomas and Alito. Democratic senators have sent
Speaker 2: similar requests to the Chief Justice. Of course, the Chief
Speaker 2: has taken no action. Joining me is an expert in impeachment.
Speaker 2: Frank Bowman, a professor at the University of Missouri Law School,
Speaker 2: so tell us about the articles against Thomas well.
Speaker 3: There are three articles that have been filed by Representative
Speaker 3: Ocasio Cortes and some of her colleagues, Essentially they allege
Speaker 3: that Justice Thomas really improperly refused to recuse himself from
Speaker 3: a variety of matters based on three things. The first
Speaker 3: article has to do with his receipt of gifts from
Speaker 3: Harlan Crow and other folks broadly associated with the American
Speaker 3: Enterprise Institute and other conservative entities, the argument there being
Speaker 3: that these entities at least file Amiekus briefs in matters
Speaker 3: that appeared before the court, even if they're not parties,
Speaker 3: and thus they have an ongoing interest in the outcome
Speaker 3: of cases in the court. The second article has to
Speaker 3: do with Missus Thomas's professional activity. She has, over the
Speaker 3: years had various consulting arrangements or consulting entities which are
Speaker 3: through interwoven in the conservative legal political movement, and various
Speaker 3: folks in that constellation of people and enterprises and think
Speaker 3: tanks and so forth have funneled money to Jenny Thomas
Speaker 3: through her entities, And here too, the argument is that
Speaker 3: Thomas should have refused himself in any matters in which
Speaker 3: any of the various entities that have funneled money to
Speaker 3: his wife might have filed a brief more habit some
Speaker 3: sort of interest, and the third one is the one
Speaker 3: which probably has the most bite to me, and that's
Speaker 3: one in which the argument is that Justice Thomas should
Speaker 3: have recused himself essentially in all the cases that had
Speaker 3: anything to do with Trump's effort to overturn the twenty
Speaker 3: twenty election results, because his wife was involved in the
Speaker 3: Trump coup attempt. Now, the degree of her involvement is
Speaker 3: a little bit unclear, but she certainly was actively advising
Speaker 3: various people in clinical staff and others about how to
Speaker 3: proceed during Trump's effort to overturn the election between November
Speaker 3: twenty twenty and January twenty twenty one. And the argument
Speaker 3: there is, you know, your wife, Justice Thomas, is actually,
Speaker 3: you know, directly involved, albeit not at the center, but
Speaker 3: directly involved in this effect conspiracy to overturn an election,
Speaker 3: And you have no business ruling on the merits of
Speaker 3: any cases involving in involving that coup, whether they involve Trump,
Speaker 3: whether they involve neither other people were charged, or just
Speaker 3: the general issues that are raised by that coup attempt,
Speaker 3: because there's certainly a reasonable inference to be drawn that
Speaker 3: you're not impartial in these cases because a your wife
Speaker 3: was directly involved in this she was potentially at least
Speaker 3: a witness, indeed was a witness in front of the
Speaker 3: January sixth committee. Arguably she could have been a defendant.
Speaker 3: She has not been charged, of course, but she was
Speaker 3: certainly potentially a defendant in any case charging a criminal
Speaker 3: conspiracy arising from January sixth in its antecedents. So those
Speaker 3: are the three arguments against Thomas. I think the first
Speaker 3: two are at least undeveloped. The third one is a
Speaker 3: stronger case for recusal certainly, and thus maybe as fractionally
Speaker 3: stronger case for impeachment.
Speaker 2: By contrast, the allegations against Justice Samuel Alito are shorter.
Speaker 3: Explain those well, I mean, I think they're really really
Speaker 3: released in both actually and on a constitutional basis. I mean,
Speaker 3: in essence, they arise out of the flag controversy. In essence,
Speaker 3: the argument is, well, Alito or somebody and his family
Speaker 3: flew an upside down US flag and the appeal to
Speaker 3: Heaven revolutionary flag, which are in some circles associated with Trump,
Speaker 3: or the effort to overturn the twenty twenty election. That,
Speaker 3: by extension is said to indicate that Lee to himself
Speaker 3: had some sympathy with the effort to overturn the election,
Speaker 3: and therefore you have to refuse himself and so forth
Speaker 3: and so on. And the two problems with that, I mean,
Speaker 3: one is that the facts as to who flew what flags, when,
Speaker 3: and you know why, are extremely unclear, and you don't
Speaker 3: go around impeaching people on webs of supposition like that.
Speaker 3: And the second issue is a more difficult constitutional one.
Speaker 3: We've only impeached one Supreme Court justice in our history,
Speaker 3: and he was acquitted of Samuel Chase in eighteen oh
Speaker 3: four eighteen oh five. And Chase was essentially an impeached
Speaker 3: for being a vocal Federalist and therefore an opponent of
Speaker 3: Thomas Jefferson's Republicans, and of saying and doing some things
Speaker 3: on the bench that suggested he had a very strong
Speaker 3: affinity for the Federalists. And he was essentially impeached for
Speaker 3: statements that he made from some rulings he made in
Speaker 3: some cases, but the real argument was that he was
Speaker 3: an ardent federalist and was letting that effect are his rulings,
Speaker 3: his statements, and he was acquitted by the Senate. And
Speaker 3: we've generally thought the meaning of that acquittal was that
Speaker 3: Supreme court justes and other judges should not be impeached
Speaker 3: for their opinions. Now, they certainly could be impeached if
Speaker 3: they were overtly basing their rulings on partisan political affinity,
Speaker 3: and there was they ruled for Republicans because their Republicans
Speaker 3: are against Democrats, because of Democrats. But there was no
Speaker 3: proof that that was true in just Jase's case, and
Speaker 3: the Senate finally concluded not going tompeach people just because,
Speaker 3: you know, of the other party were appointed by the
Speaker 3: other party. Indeed, there were arguments in that impeachment. One
Speaker 3: Center basically stood up and said, no, we we think
Speaker 3: and this is a Remember this is very early in
Speaker 3: the Republic, not quite twenty years after the Constitution has
Speaker 3: been ratified, and weren't quite sure how we were going
Speaker 3: to treat impeachments. But the congressman stands up and says, no,
Speaker 3: we think that impeachment is to be used for precisely
Speaker 3: this purpose. You know, you people have bad opinions, and
Speaker 3: we're going to get rid of you to put in
Speaker 3: your place. This is Jason, others like you, people who
Speaker 3: have good opinions. And that view was essentially rejected, and
Speaker 3: ever since we just don't have impeached justices for their opinions.
Speaker 3: Coming back to Justice Alido, you know, has he perhaps
Speaker 3: behaved intemperately at times? You bet, in my view, But
Speaker 3: you know, has he in any provable way acted? Can
Speaker 3: we prove that he ruled in a particular case based
Speaker 3: on his partisan political affinity rather than you know, he's
Speaker 3: genuinely held jurisprudential convictions? Well, I don't think so. And
Speaker 3: so I think the article against him is both factually
Speaker 3: weak because it's based on disputed facts, and I think
Speaker 3: it's constitutionally extremely extremely thin, if not non existent.
Speaker 2: So, with a Republican majority in the House, this impeachment effort,
Speaker 2: I mean, there's no chance that will even be voted on,
Speaker 2: let alone pass. So what's the point of doing this?
Speaker 3: Well, you know, I think this is this is a
Speaker 3: purely performative exercise, right because not only is the Republican
Speaker 3: House not going to impeach either Thomas or Alito, they're
Speaker 3: not even going to investigate the allegation. Now, I think that,
Speaker 3: you know, there may be time when it's clear to
Speaker 3: a majority of remembers the House that the Senate perhaps
Speaker 3: is not going to convict or is unlikely to convict
Speaker 3: on a particular set of impeachment allegations, but nonetheless makes
Speaker 3: a logical and constitutional sense to embark on an impeachment
Speaker 3: inquiry into the House because it gives you an opportunity
Speaker 3: to investigate, to bring forward facts about official wrongdoing. And
Speaker 3: I think that in essence the justification, and certainly for
Speaker 3: the first Trump engagement, where it was at least reasonably
Speaker 3: probable that the Senate would not convict, but the Democrats felt,
Speaker 3: at a minimum, we need to use the special powers
Speaker 3: of investigation that arise in an impeachment situation to unearth
Speaker 3: the facts regarding Trump's and connections with Ukraine and his
Speaker 3: effort to use Ukraine to secure good on his political
Speaker 3: pont I think that's arguably justifiable, even if you're not
Speaker 3: going to get a conviction in the end. But in
Speaker 3: this case, not only do we know that the Senate
Speaker 3: would never convict either Alito or Thomas, we know that
Speaker 3: the House is presently constituted isn't even going to open
Speaker 3: an investigation into these allegations. I think, particularly when the
Speaker 3: allegations are themselves I think constitutionally pretty weak. As I said,
Speaker 3: I think the Alito case is in the non existent
Speaker 3: constitutionally the case made against Thomas, particularly the first two
Speaker 3: articles I think are very very tho and the third
Speaker 3: article is borderline. I think it makes very very very
Speaker 3: little sense to launch into impeachments where you're not even
Speaker 3: getting an investigation. I personally, I disapprove of using a
Speaker 3: constitutional mechanism as serious as impeachment as a means of
Speaker 3: political signaling or it has no other function. I think
Speaker 3: that trivializes impeachment, and I think trivializing impeachment is itself dangerous,
Speaker 3: rapidly reaching that point if we haven't passed it in
Speaker 3: days gone by, certainly in the days of my relative youth,
Speaker 3: you know, somebody brought an impeachment allegation. You know that
Speaker 3: was serious business, and people who pay the content in
Speaker 3: national government picked up their ears and said, Mogley, if
Speaker 3: you know this, if somebody is seriously maintaining that this
Speaker 3: or that conduct by an officials impeachable, well that's something
Speaker 3: we ought to pay attention to. We ought at least
Speaker 3: listen to the to the case for impeachment, impeaching people
Speaker 3: or you know, filing impeachment resolutions when it can't accomplish anything.
Speaker 3: Not even getting an investigation seems to me a very
Speaker 3: bad idea. It just trivializes the mechanism of impeachment. It
Speaker 3: creates a situation where where nobody even cares, and I
Speaker 3: think that's bad. We've already gone a long distance to
Speaker 3: rendering impeachment effectively useless against official misconduct, and I think
Speaker 3: this kind of thing goes further in that direction.
Speaker 2: Thanks so much for joining us. That's Professor Frank Bowman
Speaker 2: of the University of Missouri Law School, and that's it
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
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