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The Poisonous Cry for Judicial Impeachment

by David E. Kyvig on Apr 19, 2005

David E. Kyvig

Outrage over disagreeable judicial decisions — such as those in the Terri Schiavo case — is nothing new. Judges seeking to apply the law properly in a deeply emotional and divisive situation are bound to provoke harsh criticism.

What’s extraordinary about the current uproar are calls from Rep. Tom DeLay, Sen. John Cornyn, Phyllis Schlafly and others for the wholesale impeachment of judges of whose rulings they disapprove. These critics call for an “originalist” jurisprudence in which judges interpret the Constitution as they think that the Framers would. In fact, the calls for policy-driven judicial impeachments disregard both the Framers’ will and two centuries of constitutional practice.

These particular originalists ignore the original intent of the impeachment power. They propose a usage the Founders never envisioned. They appear to have forgotten the lesson of their recent abysmal failure to impeach Bill Clinton: The broad political consensus to dismiss properly chosen officials is obtainable only when a serious offense is widely perceived to threaten the integrity of government.

The Framers provided for judicial life tenure because they understood that judges must operate in the face of aroused public feelings, such as the Schiavo case. They understood that “judicious conduct,” in the best sense of those words, comes from judges insulated from popular emotions.

The Framers reserved impeachment for dealing with cases of extraordinary misconduct, specified by the Founders as “treason, bribery, or other high crimes and misdemeanors.” Impeachment was clearly not meant for ordinary disputes over rulings that aroused public passions. This view seemed settled by 1805, when the Senate refused to remove Supreme Court Justice Samuel Chase, whom the House of Representatives had impeached for legal views that offended a partisan majority.

Impeachment has led to the Senate removal of only seven federal judges among the thousands who have served during more than two centuries. Eight others faced impeachment, with five resigning before proceedings began and three others acquitted. Congress removed Judge John Pickering in 1803 for drunkenness and dementia. After the Pickering and Chase cases, every judicial impeachment involved criminal misconduct. Congress cast out West H. Humphreys in 1862 for supporting the Confederacy, removed Robert W. Archibald in 1913 for bribery, and forced Halsted L. Ritter to leave in 1936 for taking kickbacks and evading taxes. More recently, Congress expelled Harry E. Claiborne in 1986 for tax evasion. In 1989, it removed two judges, Alcee L. Hastings, charged with conspiracy to solicit a bribe, and Walter L. Nixon, convicted of lying to a grand jury.

In fact, in the five cases since 1980, two of the impeached judges were already in federal prison. Two resignations involved plea bargains following criminal indictment, with impeachment impending. The fifth case was most controversial because before Judge Alcee Hastings’ impeachment a jury had acquitted him of criminal charges. Hastings won vindication of sorts by subsequent election to the U.S. House of Representatives, the very body that had voted to impeach him.

In recent years, attacks on the judiciary achieved some traction when the John Birch Society began putting up “Impeach Earl Warren” billboards in 1961. Later, campaigns were launched against Warren’s colleagues, Justices Abe Fortas and William O. Douglas. Since 1961, eight of twelve federal impeachments or near-impeachments have involved judges. Of the eight, three — Claiborne, Hastings, and Nixon — were impeached by the House and removed by the Senate. Three others resigned with impeachment pending. Justices Warren and Douglas escaped relatively unscathed. A 75-percent removal rate of targeted judges makes impeachment look mighty promising to the new judicial critics.

The use of the impeachment power as DeLay, Cornyn and Schlafly propose would mark a dramatic departure from previous practice. In the past, the procedure has only worked to remove judges in those rare cases where moral turpitude has been persuasively raised. In 1980, Congress’s adoption of the Judicial Conduct and Disability Act spelled out elaborate guidelines for the judiciary to discipline itself. Since then, judiciary impeachment has occurred when, and only when, judicial peers recommended a judge’s removal.

What DeLay and the others propose is a radical, not a conservative, step. It would put every seat on the federal bench under constant political pressure. The occasional bitter contests we have witnessed over a few judicial appointments would likely become perpetual battles over every federal judgeship. Such a situation could tie the House and Senate in knots after every slight shift in the legislative balance of power. It could dangerously alter the balance of power among the three branches of the federal government.

The Constitution wisely makes the impeachment process very difficult. It demands an extraordinary level of political consensus before office-holders can be removed from their positions. By contrast, DeLay’s proposal would stir bitter partisan division and increase the rancor of American politics. Judging from the historical record, very few judges deserve impeachment by the Founders’ standards. The bad idea of mass impeachment of federal judges for ideological reasons is less likely to remove judges than to further poison America’s judicial politics.

Impeachment remains a highly charged term in the vocabulary of contemporary political partisanship. If we respect the Founders’ intent regarding impeachment, we’ll not make the mistake of letting radical impeachment rhetoric rush us to improper action.

David E. Kyvig, Distinguished Research Professor at Northern Illinois University, is author of "The Age of Impeachment: American Constitutional Culture since 1960" (2008).