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January 03, 2005

Rehnquist and Judicial Impeachment

In what may be his swan song, Chief Justice Rehnquist in his 2004 year-end report on the federal judiciary lays out his brief for why judges should be absolutely unaccountable for their decisions, with the only recourse for democratic dissent being the judicial appointment power of the President to replace retired or dead Justices.

Rehnquist condemns criticism of individual judges, discussion of impeaching judges for their decisions, and any move to limit the Court's jurisdiction over areas of the law.

Rehnquist argues that the idea that judges could be impeached for wrong decisions was decisively rejected in 1805 "after a Congress dominated by Jeffersonian Republicans impeached Supreme Court Justice Samuel Chase. . . the Senate's failure to convict him represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties."

History of Political Impeachment: Since lots of folks since that time have continued to call for impeachment on those grounds, Rehnquist rather simplifies history. I'm actually a strong proponent of the use of impeachment as a way to place a check on the power of the courts. As I wrote back in 2001, in a long discussion document for the National Lawyers Guild calling for impeachment of Rehnquist and his conservative majority in Bush v. Gore, praise for impeachment as a check on the power of the judiciary has a long history.

The well respected 19th century Justice Joseph Story wrote that political impeachment had a long history:

In examining the parliamentary history of impeachments it will be found that many offenses not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy. Thus, lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws, and introduce arbitrary power.
Alexander Hamilton in the Federalist Papers ahd written that:
"The subjects of its [impeachment's] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words from the abuse or violation of some public trust. They are of a nature which with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."
Similarly, Similarly, Chancellor James Kent, known as "the American Blackstone" for his early defining writing on American law supported the impeachment of judges where they "substitute arbitrary will" for rational judgment.

Gerald Ford, before he became President, argued on the floor of the House during his drive to impeach Supreme Court Justice William Douglas:

What, then, is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.
And Justice Felix Frankfurter clearly accepted impeachment as a check on court power; he argued in Rochin v. California , "Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment."

The Usefulness of Impeachment: And the threat of impeachment has been used to keep courts in check, even if the Senate has never mustered the two-thirds vote necessary to actually remove them from office. After the Civil War, Justice Stephen Field was threatened publicly with impeachment after reports in the press reported his alleged disparagement of the Reconstruction laws. On January 30, 1868, Republican Representative Glenni W. Scofield of Pennsylvania, introduced a resolution in the House directing the Judiciary Committee to decide whether the reported facts justified an impeachment. The resolution passed by a vote of ninety-seven to fifty-four.

Given the destruction of civil rights of the freed blacks by the Supreme Court a decade later, the real tragedy is that Field and his fellow judges were not impeached and replaced by Justices willing to uphold the newly passed Reconstruction amendments and laws.

Many decades later, in the runup to the 1937 progressive confrontations with the Supreme Court over the New Deal, Judge Halsted Ritter was removed from office in 1936 under circumstances which suggested to some that "the Senate's decision had been designed to intimidate the Supreme Court."

Since the impeachment trial brought up old charges, some legal scholars speculate that Judge Ritter's impeachment emerged as an easy route for showing the judicial branch that Congress had and would use its power to curb the court's independence. What ultimately led to the 1937 Supreme Court backing down from its reactionary activism in ratifying the New Deal has been endlessly debated, but the clear willingness of the Congress to act against judicial independence no doubt played a role.

Liberals have an almost blind loyalty to court power, but there is no reason why any branch of the government should be immune to correction by other branches. The President can veto Congressional laws, and Congress can override such vetos. Why shouldn't the courts be subject to override by supermajorities of the elected branch? Impeachment would require that Congress find the complete philosophy of a judge to be unacceptable, not just find an individual case distasteful, but it would be a useful political sanction for restoring democratic accountability to the courts.

Posted by Nathan at January 3, 2005 01:25 AM