Posted on 06/27/2003 6:33:50 PM PDT by bvw
The Historic Justification for Political ImpeachmentEven if an impeachment campaign is justified politically, many progressives will argue that it will be marginalized as unconstitutionally using the impeachment process for "mere" political differences. American history, especially progressive history, says otherwise.
In fact, over the course of American history, the House of Representatives has impeached fifteen individuals, including two Presidents, twelve judges, a senator, and a cabinet member. The Senate has convicted seven of the fifteen.[74] Most were impeached for acts of personal impropriety but a number of others have been impeached strictly for their official conduct. The early history of the Republic saw a number of politically-charged judicial impeachments.
In 1803, the House passed four articles of impeachment against Federal District Judge John Pickering. The articles focused on judicial rulings he made against the federal government, condemning his approach to prosecution of the law in those cases including a refusal to hear testimony and grant a particular appeal. The Senate convicted Pickering on all four articles.[75]
Supreme Court Justice Samuel Chase was impeachment soon after in 1804. The charges were based on controversial judicial rulings from his time as a district judge and were made against a backfrop of partisan struggle over control of the courts. The charges included condemnations of Chase refusing to hear an attorneys' arguments, allowing an individual to serve as a juror even after the individual had admitted bias, preventing a witness from testifying, refusing to grant a postponement, "unusual, rude and contemptuous expressions" toward defendant's counsel, issuing a bench warrant in lieu of a summons, refusing a continuance. With hard political divisions between the Federalists and Jeffersonians seeking impeachment, the Senate in the end failed to convict Chase on any of the charges.[76]
In 1826, the House brought a single article of impeachment against District Judge James Peck for exceeding his contempt powers by imprisoning and causing the suspension of an attorney who had published an article critical of him. The Senate failed to convict by a vote of twenty-one to twenty-two.[77]
On top of those who were officially impeached, many judges have resigned because the fifty House impeachment investigations of judges. While Congress has removed only seven Article III judges in the last 200 years, at least twenty-two other federal judges resigned or retired from the bench under a cloud of investigation.
Originalist theories on impeachment for cause
It is relatively clear that the framers of the Constitution saw impeachment as an important political check on the judicial branch. Notably, judges were to serve during "good behavior" subject to impeachment. During the Constitutional Convention, George Mason ignited the debate about what should constitute an impeachable offenses under the Constitution. At first, the only proposed impeachable offenses were treason and bribery, but Mason believed that "attempts to subvert the Constitution may not be Treason" but should be recognized as an impeachable offense. Mason proposed that "maladministration" be added to the list of offenses but, after some debate, Mason replaced it with the phrase "other high Crimes and misdemeanors." The delegates then passed that recommendation eight to three without further debate.[78]
Without rehashing the whole historic debate from the Clinton impeachment, the term "high crimes and misdemeanors" had a long 400-year history dating from the 1386 impeachment of the Earl of Suffolk which had applied the term to many non-criminal political crimes. While the Convention did not end up using the term "maladministration," William Blackstone had considered maladministration to be a high crime or misdemeanor in his writings. For example, Blackstone wrote that public officials were subject to impeachment because they "may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either does not or cannot punish."[79] Richard Wooddeson, Blackstone's successor as Vinerian Lecturer, explicitly argued that impeachment is appropriate for misdeeds that would not be cognizable in the ordinary courts such as if they "mislead their sovereign by unconstitutional opinions."[80]
In his Commentaries on the Constitution of the United States, US Supreme Court Justice Joseph Story summarized Wooddeson's work:
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.[81]Similarly, in The Federalist Papers, Alexander Hamilton made it clear that impeachment was a political matter as much as criminal: "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."[82]
Hamilton argued that the independence of the judiciary would be tightly reined in by Congress through the threat of impeachment. "[T]he supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom," he argued. While "[p]articular misconstructions and contraventions of the will of the legislature may now and then happen," Hamilton noted that "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."[83]
Justice James Wilson, a signer of the Constitution and one of the five original Supreme Court Justices explained that "Impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments."[84] Notably, the impeachment of Samuel Chase, the only impeachment of a Supreme Court Justice, involved the issue of rendering an opinion that in the view of Congress was unconstitutional. After Justice Chase's impeachment, but prior to his acquittal, Chief Justice John Marshall made clear in a letter to Chase that "[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment." He noted that he thought a better alternative would be that "the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault."[85]
In his Commentaries, Justice Joseph Story noted that impeachment was not meant as a condemnation of character but as a political tool for restraining arbitrary power:
The jurisdiction is to be exercised over offences, which are committed by public men in violation of their public trust and duties. Those duties are, in many cases, political; and, indeed, in other cases, to which the power of impeachment will probably be applied, they will respect functionaries of a high character, where the remedy would otherwise be wholly inadequate, and the grievance be incapable of redress. Strictly speaking, then, the power partakes of a political character, as it respects injuries to the society in its political character...[86]
Yet, he went on to make an even stronger statement, noting that no one in his day had asserted that impeachment could be confined to federal crimes: "there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book...[N]o one has as yet been bold enough to assert that the power of impeachment is limited to offences positively defined in the statute book of the Union, as impeachable high crimes and misdemeanors."[87] 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.[88]
More recent views supporting political impeachment
Some might argue that such originalist arguments are all very well, but like many other early doctrines dispensed with in the course of history, such a view of impeachment was rapidly disgarded in favor of a stronger view of judicial independence. In that context, it is worth noting the remarks made before the American Bar Association by William Taft, the only man to serve the United States as both President and Chief Justice of the Supreme Court:
Under the authoritative construction by the highest court of impeachment, the Senate of the United States, a high misdemeanor for which a judge may be removed is misconduct involving bad faith or wantoness [sic] or recklessness in his judicial actions, or in the use of his official influence for ulterior purposes. By the liberal interpretation of the term "high misdemeanor" which the Senate has given there is now no difficulty in securing the removal of a judge for any reason that shows him unfit.[89]
New Deal Justice Felix Frankfurter as late as 1952 argued in 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."[90]
NOT the FIVE CONSERAVTIVE JUDGES mentioned in the Article -- but the SIX JUSTICES who Thursday threw our Nation and Laws into the pits of chaos, selfishness and anarchy.
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NFP
Sure as hell does. Too bad it won't happen.
From the article:
SIMON CREAN: Yes, but this is was the test that the Prime Minister made and I simply asked this question, Tony ... in terms of someone who continues to protect a paedophile when they were in a position of authority where they should have referred that, that is not appropriate action.
Wholesale disregard of at least three amendments this week doesn't rise to the level of impeachment. Huh.
I agree with ALS that impeachment is politically impossible, but disagree that their breach of the constitution is insufficient to impeachment. If flagrant disregard of the constitution among justices doesn't rise to the level, nothing does.
The distinction is that Americans are so uneducated and indoctrinated that they wouldn't recognize a high crime against the constitution. So constitutionally legitimate impeachments are politically impossible.
For which we can thank the Teachers' Union.
(just attach them...don't harm them)
NFP
With regard to the sodomy decision I predict that in the next 5 years or so in order to work at any learned profession one will have to sign some sort of document indicating one approves or supports homosexuality. Already judges in 'Kalifornia' must reveal their affiliation with the Boy Scouts.
Congressman Billybob
Latest article, now up FR, "Tell me lies, tell me sweet little lies."
Could these humorous postings be construed as a threat? I think we might need to be careful here.
There's a reason I put (but don't harm them) under my email. So that my Iranian Attach them to Trees humorous reference wouldn't/couldn't be taken seriously.
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