Democrats have been trying to bring down President Donald Trump for almost three years.
After former Special Counsel Robert Mueller failed to produce anything, Democrats have gone all-in on the faux Ukraine “scandal.”
If the Democratic-controlled House of Representatives votes to impeach Trump, the trial will move to the Republican-controlled U.S. Senate.
If that happens, which is a possibility, it appears a different Supreme Court Justice could oversee the Senate impeachment trail — and it would not be good news for Democrats.
In a piece published on the legal blog Balkinization, constitutional law professors Josh Blackman and Seth Barrett Tillman argued that conservative SCOTUS Justice Clarence Thomas could be the one who oversees the impeachment trial.
Why is this a big deal?
Blackman and Tillman write that 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 — which, in this case, is John Roberts.
Initially, Democrats probably liked their chances given Roberts is usually the wild card on the court, meaning it’s never clear whether he will side with Republicans or Democrats with his vote.
But what if Roberts were to pass away, recuse himself, or otherwise become incapable of conducting his duties?
Blackman and Tillman write that the U.S. Constitution does not address the question directly, which means the next most senior Justice would lead the impeachment hearings in the U.S. Senate.
If Roberts doesn’t lead the hearings, that means it would go to Thomas, arguably one of the most conservative Justices on the court.
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 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.
This suggests that the First Congress intended that the other judges of the Supreme Court could serve as substitutes for the Chief Justice.
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, 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.
Thomas has served on the Supreme Court since 1991, making him the most senior figure.
At this point, most of this is speculative.
The House has not even held a formal vote on whether to impeach Trump from office.
And if they did, it would more than likely fail given Republicans control a 53-47 majority in the Senate.
To impeach Trump in the Senate, 67 Senators would need to vote in favor of removing the president. That means all 47 Democrats and 20 Republicans would need to vote in favor of it.
Spoiler: that’s probably never going to happen.
There may be a few Never-Trumpers in the Senate, but there’s nowhere close to 20 who would turn their back on Trump and vote to impeach him from office.