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April 09, 2005

What's Wrong With Impeaching Judges?

Tom Delay is rightwing and corrupt, but he is actually upholding an important principle in arguing that legislators have the right to impeach and remove judges who overturn laws based on principles that most members of Congress think are wrong-headed.

Some Democrats say this is an attack on checks and balances, but where is the check on judicial power without the threat of impeachment? The President checks the power of Congress through the veto. Congress can check the power of the Presidency by passing laws to overturn executive branch actions.

But the judiciary has no normal check on its decision by the other branches of government. In fact, only state legislatures -- through the torturous process of approving a constitutional amendment -- have any power to check the judiciary's power.

In fact, impeachment was always envisioned as a useful check on wayward judges. Four years ago, the National Lawyers Guild leadership was considering an impeachment campaign against the conservative majority of the Supreme Court over the Bush v. Gore decision, and I wrote a piece, The Case for Impeaching the Rehnquist Five, arguing both for why the Rehnquist Court's whole agenda made them worthy of impeachment, and outlining the historical uses of impeachment as a tool for holding the judiciary accountable, a goal which progressives advocated for throughout American history.

The following outlines this historical view of impeachment as a tool for holding the judiciary accountable.

When the Constitution was proposed, many democrats criticized the strength of the judiciary outlined in the document, specifically critizing the lack of explicit Congressional review of judicial decisions. Alexander Hamilton, reacting to that criticism in The Federalist Papers, pointed to impeachment as the clear tool for Congress in preventing unchecked judicial power. "[T]he supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom," Hamilton argued. While "[p]articular misconstructions and contraventions of the will of the legislature may now and then happen, they can never be so extensive as to amount to an inconvenience," given the "comparative weakness" of the judicial branch and the availability of impeachment. "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations."

The first years of the country involved strenuous conflict between Federalists and Democratic-Republicans over the judiciary. One Federal District Judge, John Pickering, was impeached and removed from office based on rulings that Congress disagreed with, while Federalist Supreme Court Justice Samuel Chase was impeached in 1804, but his opponents lacked the two-thirds vote needed to remove him from office. Still, threatening impeachment would remain a normal tool in politics for condemning wayward judicial actions.

After the Civil War, Congress recognized the Supreme Court's hostility to civil rights laws and Reconstruction and threatened impeachment to stop the judicial assault on Reconstruction (see my Supreme Court: Mob Rule Central post). As I detailed in my NLG impeachment argument:

After the Civil War, as radical Republicans sought to enact new Reconstruction laws, many lawmakers rightly feared the threat of judicial attack on ending the legacy of slavery. Along with the impeachment of Andrew Johnson, there was a very real threat of impeachment against the Supreme Court. At the center of the controversy was Justice Stephen Field, who 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.

While the alleged comments were not proved and the resolution was tabled, Justice Field noted privately his sense of intimidation in the context of general Congressional criticism of the Court and the impeachment campaign against Andrew Johnson. In January the House Judiciary Committee had also reported a bill intended to restrict the Court's ability to find the Reconstruction Acts unconstitutional.

Newspaper commentary of the time expressed the extreme congressional distrust of the Supreme Court. For instance, The Independent informed its readers that "[t]his Congress will not brook opposition from the Court in political matters. The safety of the Nation demands the Congressional Reconstruction shall be successful; and if the Court interferes, the Court will go to the wall." Representative Robert Schenck of Ohio declared "I hold it to be not only my right, but my duty as a Representative of the people, to clip the wings of that Court."

The tragedy of American history is that the Reconstruction Congress was not more aggressive in impeaching the racist Justices, who condemned southern blacks to mass murder and Apartheid through their judicial rulings.

During the New Deal, there were strong progressive campaigns to rein in abuse of power by reactionary Justices, including threats to impeach the judges or pack the courts. New Deal Justice Felix Frankfurter, who as an activist was part of the campaign against unchecked judicial power, would argue in the 1952 case, Rochin v. California, that if Supreme Court Justices would not restrain themselves, they were subject to impeachment: "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."

It is only in recent decades that progressives switched from being critics of court power to defenders, and they would be intellectually wise to remember the heritage of their predecessors, who saw impeachment as an important tool to protect the will of the people. Especially if conservatives succeed in packing the Supreme Court with more reactionary Justices, we may very well need to mount serious impeachment campaigns in the future in order to restore progressive government.

Posted by Nathan at April 9, 2005 08:44 AM