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Regent University Law Review article ^ | SPRING 1998 | Steven W. Fitschen

Posted on 11/22/2002 3:44:34 PM PST by Remedy


Steven W. Fitschen *

I. Introduction

In August 1997, outgoing American Bar Association President N. Lee Cooper wrote his farewell column in the ABA Journal. For his topic, he chose to address what he felt was an issue of vital importance to the very existence of the American legal system as we know it.

What was this threat to America's rich legal heritage? Was it the increasing moral bankruptcy of the legal profession and the concomitant decline in public confidence in legal practitioners? Was it the controversial, complex, and divisive tort reform movement, or any of its multiple emphases on, for example, the so-called litigation explosion, frivolous lawsuits, or astronomical punitive damages awards? Was it the increasingly discussed crisis in legal education? The answer to each of these questions is "no." The threat to which Cooper dedicated his farewell epistle was far different. It was the movement to hold federal judges accountable through various means, including the Constitutional device of impeachment.

Why did Cooper find this movement so alarming? According to him, it "[t]hreaten[s] the independence of the federal judiciary." In defense of his assertion, Cooper quoted Alexander Hamilton from Federalist No. 78, wherein that usually prescient Founder claimed that the judiciary was the weakest of the three federal branches. If Hamilton was ever right in this assertion, he clearly no longer is.

Cooper found it particularly threatening that the majority whip of the United States House of Representatives, Congressman Tom DeLay, would actually name specific federal judges and threaten them with articles of impeachment. Cooper alleged that DeLay's criteria were extraconstitutional and illegitimate. According to Cooper, DeLay

was clear on his reasons in seeking these judges' impeachment. It was not corruption; it was not that the judges were involved in illegal or unethical activities; it was not that the judges committed treason, accepted bribes, committed "high crimes and misdemeanors" as required by the Constitution as grounds for impeachment.

No, the reason the majority whip targeted these specific judges for impeachment was because he and other members of Congress disagreed with one specific decision rendered by each of the judges.

Not only has Mr. Cooper misrepresented Congressman DeLay's reasons, he has also revealed his own ignorance of the constitutional grounds for impeachment.

It is important to note that Messrs. Cooper and DeLay have not been the only well known combatants in this debate. Other members of the legal community have felt their ox being gored. During the run-up to the 1996 presidential election, President Clinton threatened to ask for the resignation of federal district Judge Harold Baer, Jr., and Bob Dole (joined by House Speaker Newt Gingrich) also threat-ened to pursue Baer's impeachment. Baer's offense involved suppressing 34 kilograms of cocaine, 2 kilograms of heroin, and a confession to twenty drug running trips. In the process, Baer vilified police in his written opinion. In response, the current Chief Judge of the Second Circuit Court of Appeals, Jon O. Newman, and three of his predecessors wrote letters to both the President and Senator Dole criticizing their remarks concerning Judge Baer.

However, when DeLay called for the impeachment of federal judges, he was primarily echoing the call of various conservative groups, particularly from within the "Religious Right." The current impeachment movement-at least from within the "Religious Right" community-was launched in response to the decision of the United States Supreme Court in the case of Romer v. Evans, in which the Court ruled that the state of Colorado could not amend its constitution to prevent homosexuals from being granted special rights or minority status. Certain Religious Right groups saw this decision as so clearly unconstitutional and so dangerous to the fabric of society that they called for impeachment.

In immediate response to Romer, two groups raised the specter of impeachment. On the day that Romer was announced, Will Perkins, Chairman of the Board of Colorado for Family Values, suggested that the American people might be so outraged that there would be a ground swell calling for the impeachment of the six Justices in Romer's majority. The National Legal Foundation, under the leadership of this author, went further and issued an explicit call for impeachment.

By May 23, 1996, the influential think tank, Free Congress Foundation, had added its considerable weight to the fray. On that date, Free Congress' President, Paul Weyrich, citing the research of the National Legal Foundation, called for the impeachment of the "Romer Six" during his Direct Line Commentary on National Empowerment Television. Weyrich's commentary was in turn picked up and reproduced by Intercessors for America and a Focus on the Family fund appeal letter written by Dr. James Dobson, its Found-er and President. Thomas L. Jipping, also of Free Congress, began a steady barrage of op-ed pieces in the Washington Times warning of the dangers of judicial activism, including some pieces which advocated impeachment of federal judges. Phyllis Schlafly of the Eagle Forum suggested impeachment as one of several remedies to the problem of judicial tyranny in both her February 1997 and March 1997 newsletters.

Another "Religious Right" group which weighed in at the beginning was WallBuilders, headed by David Barton. By September 23, 1996, WallBuilders had produced the book Impeachment!: Restraining an Overactive Judiciary, which has received special criticism from those who oppose the impeachment movement. Barton's book was especially influential. It broadened the emphasis beyond the Romer case by listing several other examples of federal court opinions that were suspect and suggesting broad categories of judicial usurpation which might constitute impeachable conduct.

As a consequence of the discussion of impeachment, grassroots movements sprang up against federal judges John Nixon in Tennessee and Stewart Dalzell in Pennsylvania (in both cases because of the judges' handling of death penalty appeals). Liberal federal judge H. Lee Sarokin resigned from the Third Circuit Court of Appeals, and the heavily criticized Judge Baer reversed his controversial decision. Then in May and July 1997, respectively, subcommittees of both the House and the Senate held hearings on judicial activism which included discussions of impeachment. In May 1997, the impeachment efforts against Judge Nixon in Tennessee resulted in both houses of the Tennessee legislature overwhelmingly passing a resolution calling upon the United States House of Representatives to investigate Judge Nixon for impeachment. Governor Sundquist signed the resolution and it was sent to the United States House of Representatives.

Reaction to the impeachment movement has been vigorous. In addition to former ABA President Cooper and Chief Judge Newman, negative responses have come from 104 law school deans, seventy-five bar association presidents (both in the form of an open letter to House Speaker Newt Gingrich), and from two United States Supreme Court Justices-Chief Justice William Rehnquist and Justice Antonin Scalia. The ABA set up a Commission, which issued a close-the-ranks rubber stamp of Cooper's position.

The gist of the deans' letter is encapsulated in one of its sentences: "Impeachment was never intended to be used-and never should be used-against a judge who issues an opinion with which members of the other branches disagree."

One may assume (or at least hope) that anyone who set his hand to a letter or column-such as those addressed to Speaker Gingrich or that issued by former ABA President Cooper-had critically evaluated the position he condemned. Yet this was demonstrably not the case. For example, the law school deans wrote:

We, the undersigned law school deans, write to convey our strong opposition to proposals to initiate impeachment proceedings against federal judges who have rendered politically unpopular decisions in cases or controversies properly before them.

Comments by various members of Congress and views expressed in Impeachment! by David Barton suggest that impeachment is an appropriate mechanism to restrain an "overactive" judiciary and that, even though it is unlikely that impeachment will result in conviction, bringing impeachment proceedings against certain federal judges will have a deterrent effect on the substance of their subsequent rulings from the bench. These rationales mischaracterize the purpose of impeachment and only encourage Congress to abuse its extraordinary power to remove a federal judge from office.

Yet neither DeLay nor Barton has advocated impeaching judges because they believe that the judge's opinion was politically unpopular or because they personally disagreed with them. What they have advocated is impeaching judges for rendering unconstitutional opinions, usurping legislative authority and introducing arbitrary power.

In that, DeLay and Barton are on solid ground-as this article will show-and the deans and former President Cooper are both wrong and misrepresenting their opponents. For example, Tom DeLay has stated "I am not suggesting that impeachment be used for partisan purposes, but when judges exercise power not delegated to them by the Constitution, impeachment is a proper tool." DeLay stated that he would pursue impeachment against a judge of who "obvious[ly] . . . violated his oath of office to uphold the Constitution of the United States. That is the criterion. If he tries to legislate and goes beyond what the Constitution allows the judiciary to do, that is a great case" to pursue.

In the very book that the law school deans condemned-Impeachment!-Barton wrote, impeachment is "not a carte blanc to persecute someone for partisan purposes." Furthermore, Barton maintains that, "[r]ather than violating the 'independence' of the judiciary, impeachment simply makes the judiciary an accountable branch by making individual judges more responsible for their decisions, thus preventing their usurping, misusing, or abusing power."

What DeLay, Barton, and others are really advocating-impeachment under proper constitutional criteria-has broad historical support. Once that is understood, it will be easy to understand (as this article will demonstrate) that the Framers also intended the very process of impeachment investigations to have a salutary effect on the federal judiciary, regardless of whether convictions are obtained. Once again, Cooper and those in his camp are mistaken.

This article will examine three issues. Section II will briefly explore why those in the Christian community have a unique vantage point on the propriety of impeaching rogue federal judges. Section III will make the case that although no federal judge has ever been impeached for rendering unconstitutional opinions, it is historically and constitutionally defensible to begin to do so. Finally, in Section IV, this article will examine specific judges that have been suggested as candidates for impeachment and evaluate whether they are, indeed, valid targets of impeachment inquiries under historical standards.

II. Covenant Breaking

Christians have a special interest in the issue of removing rogue federal judges. It is no coincidence that the "Religious Right" was in the vanguard of the current impeachment movement. The unique perspective that gives Christians this special interest is the biblical concept of covenants.

Consider this quotation: "Our Constitution is a covenant running from the first generation of Americans to us and then to future generations." Who made that statement? Some member of the "radical Religious Right"? Although the statement would undoubtedly be embraced by most of the conservative individuals and advocacy organizations mentioned in the Introduction, that statement comes from United States Supreme Court Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter in their joint opinion in Planned Parenthood v. Casey.

Unfortunately, the Justices who wrote the joint opinion did not understand covenant principles very well. Covenant is a religious concept, originating in the ancient Near Eastern religions. Covenant is also a critical component of Christianity. From Christianity, the idea of covenant was adopted by the American Founding Fathers:

Viewing the United States Constitution as the critical expression of the American constitutional tradition, we move back in time, seeking the less differentiated, more embryonic expression of what is in that document. Our search takes us to the earliest state constitution, then to colonial documents of foundation that are essentially constitutional such as the Pilgrim Code of Law, and then to proto-constitutions such as the Mayflower Compact. The political covenants written by English colonists in America lead us to the church covenants written by radical Protestants in the late 1500s and early 1600s, and these in turn lead us back to the Covenant tradition of the Old Testament. The American constitutional tradition derives much of its form and content from the Judeo-Christian tradition as interpreted by the radical Protestant sects to which belonged so many of the original European settlers of British North America.

Thus Justices O'Connor, Kennedy, and Souter were correct to assert that the Constitution is a covenant even if they did not understand the full ramifications of the concept.

One covenant principle that we see plainly in scripture-and that Christians need to take seriously-is that a covenant may not be added to without mutual consent. We see God Himself revealing this principle in His covenant with Israel: "Do not add to what I command you." Any judge or justice who makes up out of whole cloth a new fundamental right, or arrogates to himself authority or power not granted by the Constitution, certainly adds to our national covenant, and thus becomes a covenant breaker.

One person who breaks a covenant can bring disaster on the entire nation. Christians would do well to recall the story of Achan. He stole some of the "devoted things," that is, the spoils of war that God had commanded the Israelites to destroy. His act was unknown to his fellow Israelites. But when they went to attack Ai, they were defeated and his sin cost the lives of others. In this same passage from the Bible, God explains the relationship between one covenant breaker and the consequences to the entire nation (notice God says "they" not "he"):

Israel has sinned; they have violated my covenant, which I commanded them to keep. They have taken some of the devoted things; they have stolen, they have lied, they have put them with their own possessions. That is why the Israelites cannot stand against their enemies; they turn their backs and run because they have been made liable to destruction. I will not be with you anymore unless you destroy whatever among you is devoted to destruction.

Our Constitution is not a covenant in which God is a party; that is, it is not a covenant between God and America. However, a covenant is implicitly an agreement in which God is invoked as a witness. Spiritual consequences result from its violation. Thus, for Christians, removing covenant breakers from office takes on special significance.

A related, but analytically distinct issue, should also be of special significance to Christians. The Bible is replete with references to dire consequences for a nation when its leaders engage in unrighteous conduct. Chapter nine, verse twelve from the book of Daniel is illustrative. It states, "[a]nd He hath confirmed his words, which He spake against us, and against our judges that judged us, by bringing upon us a great evil: for under the whole heaven hath not been done as hath been done upon Jerusalem."

As just discussed, any federal judge who violates our national covenant is engaged in covenant breaking, which is in-and-of-itself unrighteous. However, many judicial actions may be unrighteous for a second, independent reason. Romer v. Evans, is a case in point. In Justice Kennedy's majority opinion, the Court not only held that the citizens of Colorado could not amend their state constitution to prohibit special rights for homosexuals; it also declared that the only possible explanation for why 800,000 Coloradans voted to deny such special rights was "animus." In other words, these voters were full of hate.

Clearly, such a declaration by the United States Supreme Court-which flouts the Word of God-is unrighteous conduct. The Bible is clear: Homosexuality is an abomination. Christians-or anyone who accepts this part of our Judeo-Christian heritage-who take these biblical admonitions seriously are now declared to be hate-mongers and bigots. The Romer decision actually constitutes multiple unrighteous acts. First, it gave a huge boost to the homosexual movement. Many of the issues subsumed under the rubric of "the homosexual agenda" relate to obtaining special civil rights status for homosexuals. Second, it calls evil "good" and good "evil."

These examples of unrighteous behavior by the Supreme Court majority in Romer are not isolated. The concerned Christian can evaluate the judges and cases that will be examined in Section IV for other examples of unrighteous behavior. All people who are concerned about constitutional violations will be equally interested in the discussion in Section IV. However, those readers of this Law Review who are especially interested in its mission to bring to bear biblical principles upon current legal issues will be doubly concerned that our national covenant is being violated. These violations have spiritual consequences. Impeachment is the only constitutional provision by which we may remove judicial covenant-breakers from office.

III. The Constitutional Grounds

A. Defining the Grounds

Ever since the ratification of the United States Constitution in 1788, there has been much concern about usurpation of power by the judicial branch of the federal government in general and by the United States Supreme Court in particular. In the early years of our Republic, impeachment was not seen as a radical response to that problem. That view is a modern-day phenomenon. As early as 1803, United States District Judge John Pickering was impeached and convicted, and in 1804, Supreme Court Associate Justice Samuel Chase was impeached and acquitted.

Even in more recent history, there have been times when the actions of members of the federal judiciary have caused such outrage that the American people have clamored for impeachment. Recent examples include the public outcries for the impeachment of Chief Justice Earl Warren and the actual House resolutions calling for the impeachment of Associate Justices Abe Fortas and William O. Douglas. From 1986 to 1989, after a fifty-year lull, three federal judges were impeached and convicted.

As Table 1 shows, sixteen federal officials have been impeached in the history of our nation. Of these, thirteen have been members of the judiciary. All seven officials who were convicted were judges. In addition, as of 1991, at least fifty-nine federal judges had been the subjects of House impeachment investigations.









William Blount


Senator (Tenn.)

5 articles: conspiring with British and Indian forces against the Spanish

In a separate proceeding, the Senate expelled Blount the day after the House impeached him. His lawyers argued both that Senators were not subject to impeachment and that he could not be impeached since he no longer held office. The impeachment was dismissed

John Pickering


U.S. Dist. Ct. Judge for Dist. of NH

4 articles: issuing an order which violated an act of Congress; refusal to hear witnesses in a case; refusal to allow an appeal of a case; and drunkenness and blasphemy

convicted and removed from office

Samuel Chase


Assoc. Justice of the U.S. S. Ct.

8 articles: "highly arbitrary, oppressive, and unjust" treatment of attorneys, wit-nesses, grand juries and juries; violating the Sixth Amendment fair trial rights of defendants


James H. Peck


U. S. Dist. Judge for Dist. of Mo.

1 article: holding an attorney in contempt of court "arbitrarily, oppressively, and unjustly"


West H. Humph-reys


U.S. Dist. Judge for E., M., & W. Dist. of Tenn.

7 articles: supporting the secession movement and acting as a Confederate judge

acquitted on one sub-part; convicted on all other articles and sub-parts; removed from office and disqualified from further office holding

Andrew Johnson



11 articles: removing and replacing the Secretary of War

acquitted on 3 articles; Senate then adjourned sine die

Mark W. Delahay


U.S. Dist. Judge for the Dist. of Kan.

no articles ever drafted; the investi-gating committee reported "personal habits [that] unfitted him for the judicial office," questionable financial dealings, and drunkenness

Delahay resigned after being impeached and before articles could be drafted; the House took no further action

William W. Belknap


Secretary of War

5 articles: bribery

Belknap resigned and the Senate acquitted on that ground

Charles Swayne


U. S. Dist. Judge for N. Dist. of Fla.

12 articles: falsifying expense accounts, unauthorized use of a railroad car in the possession of a receiver he had appoint-ed; not residing in his district; and "un-lawfully" holding attorneys in contempt


Robert W. Archbald


U.S. Com-merce Ct. (Circuit) Judge

13 articles: influence peddling with litigants before him while a district and circuit judge

acquitted on 8 articles (all but one relating to conduct while a District Judge, an office he no longer held); convicted on 5 articles; removed from office and disqualified from further office holding

George W. English


U.S. Dist. Judge for E. Dist. of Ill.

5 articles: disbarring lawyers; summoning state officials and members of the press to court to threaten them with jail or removal from office; threat-ening jurors; favoritism in appointing bankruptcy referees; allowing referees to also serve as attorneys in their cases; personally benefiting from collusion with referees; and use of profanity

English resigned before Senate trial began; the House requested the Senate to terminate the proceedings; the Senate complied

Harold Louder-back


U.S. Dist. Judge for N. Dist. of Cal.

5 articles (the 5th article was amended prior to the start of the trial): setting up a false residence in anticipation of a divorce action by his wife; and impropriety relating to bankruptcy receiver


Halsted L. Ritter


U.S. Dist. Judge for S. Dist. of Fla.

Originally 4 articles; amended to 7 articles: corruption in a receivership case; practicing law while serving as a federal judge; and income tax evasion

acquitted on first six articles which contained specific alleg-ations; convicted on seventh article which merely recapit-ulated the prior six articles; removed from office; sued in Court of Claims for salary on the basis that articles did not meet constitutional standards for impeachment and that Senate could not justifiably acquit on the first six articles and convict on the seventh; court ruled courts have no authority to review impeachments

Harry E. Claiborne


U.S. Dist. Judge for Dist. of Nev.

4 articles: the judge had been convicted of income tax evasion but as a convicted felon he refused to resign

acquitted on one article; convicted on three articles; removed from office

Alcee L. Hastings


U.S. Dist. Judge for S. Dist. of Fla.

17 articles: taking a bribe; lying and submitting false evidence in his criminal trial; and revealing wire tap information

acquitted on 3 articles; convicted on 8 articles; the Senate declined to vote on 6 articles; removed from office

Walter L. Nixon, Jr.


U.S. Dist. Judge for S. Dist. of Ms.

3 articles: perjury before a grand jury (for which he had been convicted in a criminal trial)

acquitted on 1 article; convicted on two articles; removed from office; sued to overturn conviction; Supreme Court ruled verdict unreviewable

One of the most intriguing aspects of the history of impeachment in America is that no judge has ever been impeached for some of the behaviors that citizens are the most concerned about. As they are today, in the wake of the Romer decision, Americans have often been concerned about judicial activism, judicial tyranny, evolutionary jurisprudence, rendering unconstitutional opinions, and the like. Indeed, at least one opponent of the current impeachment movement, Bruce Fein, has made much of this fact.

However, there are several historical reasons why impeachment has never been attempted for these offenses. In 1803-1805, President Thomas Jefferson attempted to use impeachment as a political weapon against Federalist judges. Jefferson, and those pursuing impeachment in the House, properly understood that "high crimes and misdemeanors" was an elastic term, designed to encompass unindictable offenses. However, they abused the process by attempting to circumvent the limits the Framers intended for the term.

History is the best guide to understanding why the term "high crimes and misdemeanors" was chosen. History also demonstrates that Jefferson went beyond the Framers' intent when he sought to use impeachment to remove federal judges simply because they belonged to the opposing political party. Anyone who seeks to do the same today would be guilty of the same error. However, anyone who seeks to remove tyrannical federal judges would use the tool of impeachment exactly as intended by the Framers.

Many who object to the current impeachment movement correctly point out that the Constitution prescribes an exhaustive list of reasons for which a federal official may be impeached. Those reasons are "treason, bribery, or other high crimes and misdemeanors."

These naysayers point out that the federal judges who are the target of impeachment efforts are not guilty of bribery nor (apparently) of treason under the narrow definition provided in the Constitution. These impeachment opponents fail to recognize what the term "high crimes and misdemeanors" encompassed. This criticism of the impeachment movement comes in three basic forms. The first version is the bald assertion that impeachment was not meant to cover rendering opinions that Congress disagrees with. As pointed out in the Introduction, this is a mischaracterization of the impeachment movement. The second version is a similarly bald assertion that impeachment will not lie for rendering unconstitutional opinions. The third version is that impeachment will only lie for an indictable offense.

A quick review of Table 1 is enough to dispel some of these mistaken beliefs. However, additional historical data will demonstrate in greater detail why those individuals behind the current impeachment movement-like Congressman DeLay, David Barton and this author-are in the right and those who oppose the current impeachment movement-like the ABA, seventy-five bar association presidents, and 104 law school deans-are in the wrong.

At the Constitutional Convention, George Mason suggested the term "maladministration" as a needed grounds for impeachment because: "Treason as defined in the Constitution will not reach many great and dangerous offenses . . . . Attempts to subvert the Constitution may not be Treason as above defined." However, James Madison objected to the term because "so vague a term will be equivalent to a tenure during the pleasure of the Senate." The Convention instead adopted the phrase "high crimes and mis-demeanors. Thus, the Framers also included a powerful check on judicial tyranny, while being careful to protect the independence of the judiciary.

The Framers chose the term "high crimes and misdemeanors" for this dual purpose because it was a phrase that already had a long 400-year history. The term is not derived from criminal law at all but was coined in the context of the 1386 impeachment of the Earl of Suffolk. In fact, at that time there was no such crime as a misdemeanor. In those days, lesser crimes were prosecuted as "trespasses." The phrase "high crimes and misdemeanors" applied to political crimes, i.e., crimes against the state whether indictable or not.

One point needs to be clarified. The Constitutional Convention substituted the phrase "high crimes and misdemeanors" for the "vague" term "maladministration." Yet Sir William Blackstone-whose views on this matter many scholars of impeachment consult-considered maladministration to be a high crime or misdemeanor. The answer to this seeming contradiction lies in the fact that Blackstone (and Mason) were describing a key political crime while Madison was warning about an abuse of the terminology used to name that crime. Blackstone's use of maladministration is clearly limited to crimes against the state and does not extend to removing one's personal enemies. For example, he writes that public officials are 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."

The Framers were well aware of the 400 years of English impeachment history. Richard Wooddeson, Blackstone's successor as Vinerian Lecturer, authored the first "methodical compilation" on the subject of English impeachment beginning in 1777. The work was "much cited in our country."

Wooddeson explicitly stated that impeachment is appropriate for misdeeds that would not be cognizable in the ordinary courts of law. In his discussion of what had historically constituted "high crimes and misdemeanors" and thus grounds for impeachment, he wrote that judges could be impeached if they "mislead their sovereign by unconstitutional opinions." In his Commentaries on the Constitution of the United States, Justice Joseph Story paraphrased and 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.

Mason (as noted above) was desirous that, because the traditional definition of treason had been narrowed by the Convention, some of the old grounds for treason would be under "maladministration." In particular, Mason was concerned that efforts to subvert the Constitution might not constitute treason. To modern scholars it may seem strange that Mason had any question whatsoever about this matter. It appears-on the face of the document-that subverting the Constitution is outside the definition of treason adopted by the Convention. Perhaps the answer lies in the fact that Mason understood that, under the constitutional definition, treason includes "levying war." In the English impeachment of the Earl of Strafford (1642), subverting the fundamental laws and introducing arbitrary power were characterized as "high treason" because such actions were held to constitute "levying war" against the people and the King.

The early Supreme Court likely relied on the same logic when it declared that that either usurping or abrogating authority constituted treason under the Constitution-despite the fact that, to modern thinking, these things do not fit the Constitutional definition. The Court stated, "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution."

So, although subverting the Constitution very possibly was included as an impeachable offense under the treason provision, Mason wanted to "hedge his bets" and cover it in another provision, as well. The term "high crimes and misdemeanors," was eventually adopted to meet Mason's concerns. The term, therefore, subsumes the political crimes of subverting the fundamental laws and introducing arbitrary power.

The fact that Jefferson, as President, went too far does nothing to change the Framers' intention regarding the proper uses of impeachment. Clearly, the Framers intended to create an independent judiciary. Hamilton dedicated several numbers of the Federalist to this issue. However, it is equally true that Hamilton, in Federalist No. 81, wrote of

the important constitutional check which the power of instituting impeachments . . . would give to [Congress] upon the judicial department. This is alone a complete security. There can never 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 intrusted [sic] with it.

Jefferson and his allies sought to remove Federalist judges from the bench simply because they were political adversaries. The nation should be grateful that they failed. When many of the Framers and early constitutional scholars stated that impeachments were political in nature, they did not mean that they were to be used as a political weapon against political enemies. Rather, they meant that they were to be used to punish "political crimes," which would often be outside the cognizance of the criminal statutes or which could be punished both by criminal prosecutions and with impeachment.

The Framers did not simply have knowledge of English impeachment history. They also explicitly adopted the same "ground rules" for America. Consider several of the following representative quotations. Alexander Hamilton, in The Federalist Papers, wrote:

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.

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."

In multiple discussions in his Commentaries, Justice Joseph Story strongly attacked the idea that high crimes and misdemeanors could be limited to indictable offenses:

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 . . . .

The plain inference is that the remedy will be "wholly inadequate" because the offences are not indictable.

However, there are other passages in which Story speaks less euphemistically. For example, he also explained:

The offences to which the power of impeachment has been and is ordinarily applied as a remedy are of a political character. Not but that crimes of a strictly legal character fall within the scope of power . . . but that it has a more enlarged operation, and reaches what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty.

Here Story was quite specific: impeachable offenses include both indictable crimes and unindictable political offences. 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:

Again, 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. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it. . . . [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.

A final point is also well worth noting. None of the earliest impeachments involved an indictable crime.

Congress have unhesitatingly adopted the conclusion that no previous statute is necessary to authorize an impeachment for any official misconduct; and the rules of proceeding, and the rules of evidence, as well as the principles of decision, have been uniformly regulated by the known doctrines of the common law and [English] parliamentary usage. In the few cases of impeachment, which have hitherto been tried, no one of the charges has rested upon any statutable misdemeanors.

We also recall that other passage from Story, cited earlier, wherein he recounts that:

[L]ord 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.

These last examples are not indictable crimes. Yet they constitute political offenses which judges committed from the 1300s through the 1700s.

In summary, it is beyond dispute that the Framers intended impeachment to be used against political crimes whether indictable or not. It is also clear that "misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws, and introduce arbitrary power" were "high crimes and misdemeanors" about which the Framers were particularly concerned with regard to the judicial branch.

Jefferson's attempted abuse of this tool led to its disfavor. Another possible contributing factor was that officials who had been impeached for unindictable offenses almost universally argued the opposite view-that only indictable offenses were impeachable-even though no impeached official has ever persuaded the Senate with this argument.

However, the fact that judges have been susceptible to these temptations of power for hundreds of years illustrates the biblical truth, "That which has been is that which will be, And that which has been done is that which will be done. So, there is nothing new under the sun." It also illustrates the wisdom of the Framers in providing for a safeguard against this propensity. The modern day advocates of judicial impeachment are not seeking to introduce some radical new threat to judicial independence. Rather, they are urging a return to the wisdom of the Framers which has been lost through historical accident.

B. Objection: It's Never Been Done

Those who want to honor the wisdom and original intent of the Framers can raise only two objections. The first is that it has never been done.

The simple answer to this objection (other than "So what?") is that the history of American impeachments is a history of "it has-never-been-done's" (and for that matter, very often of "never-done-again's.") Table 2 shows some of the groundbreaking aspects of each of the impeachment proceedings.




William Blount

First impeachment under U.S. Constitution

John Pickering

First impeachment of a federal judge

First impeachment for drunkenness

First impeachment for blasphemy

First impeachment of defendant thought insane

First conviction

Samuel Chase

First impeachment of a Supreme Court Justice

First impeachment initiated by a Congressman (prior two initiated by presidents)

First impeachment in which defendant was present

James Peck

First impeachment initiated by a citizen's petition (petitioner tried 3 times before succeeding)

First impeachment alleging only 1 article

West H. Humphreys

First impeachment for failure to hold court

First impeachment in which accused refused to resign despite inability to fulfill office (Humphreys was at the time serving as a Confederate judge but Lincoln could not nominate replacement until Humphreys was impeached)

First impeachment in which no defense was mounted

First convicted official to be barred from future office holding

Andrew Johnson

First impeachment of a president

First impeachment involving a dispute between two coordinate branches over the constitution

First impeachment in which trial was never completed (Senate adjourned sine die after voting on only three articles)

Mark W. Delahay

First impeachment in which resignation took place before articles could be drafted

William W. Belknap

First impeachment of a Cabinet Officer

First impeachment for bribery (although Articles used the term "high crimes and misdemeanors")

First impeachment in which the major political parties joined forces to conduct the prosecution

First acquittal on the grounds of resignation

Charles Swayne

First impeachment initiated by the petition of a state legislature

Robert W. Archbald

First impeachment of a Circuit Judge

First impeachment for offenses in current and previous office

First impeachment for violating good behavior clause

First impeachment containing a "catch-all" summary article

George English

First impeachment for profanity

First impeachment in which House requested Senate to terminate proceedings

Harold Louderback

First impeachment initiated by a Bar Association's petition

First impeachment in which the full House overrode the Judiciary Committee's recommendation not to impeach

First impeachment in which the House revised the articles after they had been presented to the Senate

Halsted L. Ritter

First impeachment on "stale" charges (i.e., no on-going offenses; last allegation was 6 years old)

First conviction on a "catch-all" article

First conviction challenged in court

Harry E. Claiborne

First impeachment of a convicted felon

First impeachment in which the Senate initially declined to receive the impeachment message from the House

First impeachment in which Senate utilized a committee to investigate, i.e., the first impeachment in which the full Senate did not hear all the evidence

Alcee L. Hastings

First impeachment initiated by a petition from the Judicial Conference

First impeachment in which Senate convicted despite defendant's acquittal in criminal trial

First impeachment in which Senate declined to vote on all articles

Walter L. Nixon, Jr.

First time the Senate convicted two defendants in one year

Table 2 demonstrates that the rallying cry "it's never been done before" has never carried any weight with the House, the Senate or the various people inside and outside of government who sought to initiate proceedings. Likewise, the fact that no judge or justice has ever been impeached for rendering unconstitutional opinions should not carry any weight either.

Furthermore, there are, in fact, several near-precedents. At least on one occasion, a resolution seeking the impeachment of a Supreme Court Justice was introduced in response to a direct judicial act. Representative W. M. Wheeler (D-Ga.) introduced the resolution after Justice Douglas stayed the execution of Julius and Ethel Rosenberg on June 17, 1953. The House Judiciary Committee appointed a special subcommittee that immediately began its work. It had already held one hearing, when, just two days later on June 19, the full Supreme Court overruled Douglas' stay. Shortly thereafter, the full Judiciary Committee tabled the resolution calling for impeachment.

In addition, a quick review of Table 1 demonstrates that tyrannical actions (although of a different type than discussed in this article) from the bench have often lead to impeachment proceedings against lower federal judges.

C. Objection: It Can't Be Done

The other objection is that it simply cannot be done. This objection actually takes two forms. The first is that, despite the persuasive historical evidence to the contrary, rendering unconstitutional opinions has never constituted an impeachable offense in our nation's history. In other words, it is argued, a plausible case has been made that impeachment lies for political crimes. However, the argument continues, the only historical references to the impeachment for rendering unconstitutional opinions are those cited above from Story and Hamilton and those are merely theoretical or reflect an aspect of the English impeachment history that has never been acted upon in this country.

The answer to this objection is several-fold. To a certain extent, this is just another version of the previous objection: it's never been done. That objection has been answered. However, we must also recognize that the view put forth here-that impeachment lies for unconstitutional opinions-is neither theoretical only nor limited to the pages of antiquity.

The only impeachment of a Supreme Court Justice involved, at least obliquely, the issue of rendering an opinion that in the view of Congress was unconstitutional. Thus, it provides a case study that is not totally hypothetical. After Supreme Court Justice Chase's impeachment, but prior to his acquittal, Chief Justice John Marshall wrote 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. . . . I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed un-sound 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.

Clearly, Marshall believed that Justices could be removed for rendering opinions that Congress considered to be unconstitutional. Marshall held this opinion, despite Jefferson's political witch-hunt and Marshall's fear that he was also likely to be a target.

More contemporary jurists and scholars have also advocated impeachment specifically for justices who render unconstitutional opinions. Justice Felix Frankfurter was perhaps the most important of these. In Rochin v. California, Frankfurter clearly stated 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." This is a most important quotation in that it bears directly on the case of the "Romer 6" which will be examined in Section III. How can impeachment serve as an appeal of a Supreme Court opinion? The most logical answer is, only if you impeach all of the Justices who formed the majority.

Another recent voice acknowledging the role of impeachment is former West Virginia Supreme Court Chief Justice Richard Neely, a man who has engaged in quite a bit of judicial activism himself, yet who is honest enough to admit what the consequences can be. Neely, writing as recently as 1981 and citing divisive social issues of the day, noted that:

when we come to constitutional law, the actions of courts are almost entirely outside the control of the legislative branch. The courts' rulings in constitutional matters cannot be changed except by amending the federal or state constitutions, which, as history demonstrates, is extremely difficult to do. Consequently, when the United States Supreme Court says that segregation is unconstitutional, or mandates the reapportionment of state legislatures to give the previously underrepresented citizen in urban areas one-man, one-vote for both houses of the state legislature, or rules that states cannot interfere with doctor-patient decision concerning abortions during the first trimester, there is absolutely no recourse from its decision except constitutional amendment or impeachment of the court and appointment of a new court which will overrule the offending decision.

Another important modern day advocate of impeachment is Professor Raoul Berger. His 1973 book, Impeachment: The Constitutional Problems, is one of the most helpful on the subject. In it, he thoroughly discusses the nature of "high crimes and misdemeanors" including an analysis of the key passages from Joseph Story's Commentaries discussing the English impeachments for rendering unconstitutional opinions. Berger, in his 1977 book Government by Judiciary, wrote: "When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power." Berger pointed out that "both the English and the Founders regarded 'usurpation' or subversion of the Constitution as the most heinous of impeachable offenses." He also specifically addressed Federalist No. 81, commenting, "judicial usurpation, as Hamilton stated, can be met by impeachment."

Berger's work is especially important because of his acknowledged standing as an expert on impeachment. Major portions of Impeachment, though not yet published, were included in the Watergate impeachment resource materials compiled by the House Committee on the Judiciary. The finished book was cited by the Supreme Court in Nixon v. United States in upholding the impeachment conviction of Judge Nixon.

The second version of the "it can't be done" objection is that there is not enough political will to accomplish impeachment. It is not the purpose of this article to prognosticate on the possibilities of successfully impeaching one or more federal judges or justices. Rather, it is the purpose of this article to demonstrate that impeachment is constitutionally justifiable in every instance of judicial tyranny and that there are dire spiritual consequences to leaving covenant-breakers in office. Under those assumptions, this article advocates pursuing impeachment, whatever the probability of eventual success may be.

It is incumbent upon those who believe that impeachment is a proper response to the Romer decision to educate the public and their representatives on this matter. It may be helpful to remind elected representatives of Gerald Ford's famous comments 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.

The broadest possible interpretation of Ford's remarks should be repudiated as a true threat to the independence of the judiciary. However, Ford's remarks are susceptible to a narrower interpretation. They are true to the extent that "high crimes and misdemeanors" was a term deliberately chosen for its historical elasticity (although intending to set some undefined ultimate limit). His comments are also true to the extent that the judgment of the House and Senate in their respective roles is unreviewable in the federal courts.

Three times the federal courts have ruled that impeachment convictions are unreviewable. The Court of Claims so held when Judge Ritter sued for back pay. The District Court, Court of Appeals, and Supreme Court all so held when Judge Nixon sued to have his impeachment declared unconstitutional on procedural grounds. The District Court and Court of Appeals so held when Judge Hastings challenged his impeachment trial on Fifth Amendment Due Process and procedural grounds. Ford's comments, and the unreviewable nature of impeachment convictions, may help some representatives feel "safer" in jumping on the impeachment bandwagon.

To put the proper bounds on Ford's statement one should consider 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.

There is another answer to the objection that "it cannot be done." There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don't think they can obtain the final goal of conviction.

Joseph Story understood that the threat of impeachment must be real in order to serve as an effective check. He wrote that on the one hand, impeachment should not "be a power so operative and instant that it may intimidate a modest and conscientious statesman or other functionary from accepting office," but that on the other hand, it must not be "so weak and torpid as to be capable of lulling offenders into a general security and indifference."

There is some evidence to support the thesis that impeachment investigations also serve the function Story anticipated. The following table reveals that the Congresses of the Framers' generation were much more likely to contemplate impeachment than Congress is today. The data compares impeachment investigations (judicial branch only).



(in 50 year increments)

Number of House Impeachment Investigations

Authorized Article III Judgeships

(at 26th year)

Ratio of Investigations to Judgeships



28 (1815)




63 (1865)




146 (1915)




407 (1965)


On the one hand, this data might tend to show that it is harder today to generate impeachment investigations than in previous eras. On the other hand, it may also show a need to return to a day when judges knew that they were being watched. A comparison of Table 1 with Table 3 yields the following relationship: the higher the ratio of investigations, the lower the rate of actual (judicial) impeachments or convictions. Table 4, below, shows these results.



Number of House Impeachment Investigations

Number of Impeach-

Number of con-

Authorized Article III Judgeships (at 26th yr.)

Ratio of Investiga-
tions to Judgeships

Ratio of Impeachments to Investigation/


Ratio of Convictions to Investigation/






28 (1815)








63 (1865)








includes resig-

146 (1915)








407 (1965)




While this is certainly not a ceteris peribus study and while the correlation doesn't prove causation, it is certainly grounds for the hypothesis that impeachment investigations serve as a deterrent to behavior that would lead to actual impeachments. In other words, investigations may serve as deterrents to high crimes and misdemeanors. There is every reason to believe that an investigation, an impeachment, or a conviction for rendering an unconstitutional opinion would serve as a major wake-up call to all those federal judges who exceed the limits of their constitutionally granted authority.

Now that Judge Sarokin has resigned and Judge Baer has reversed his ruling, there is at least anecdotal evidence that mere public debate about impeaching judges has impacted judicial behavior. The law school deans found this troubling. This author believes these situations vindicate the wisdom of the Framers.

Here the Framers and the early Congresses appear to have implicitly incorporated a Biblical principle into their view of the proper use of the impeachment mechanism. To some extent, impeachment investigations themselves serve as a punishment to those whose judicial conduct has not been above reproach-including those who have written unconstitutional opinions. The public humiliation and interruption of one's private life are very sobering experiences, regardless of the outcome of the investigation. One biblical role of punishment is to serve as a warning to others. Several verses illustrate this point. In the book of Psalms, the principle is expressed this way:

[Evildoers] devise injustices, saying, "We are ready with a well-conceived plot;" For the inward thought and the heart of a man are deep. But God will shoot at them with an arrow; Suddenly they will be wounded. So they will make him stumble; Their own tongue is against them; All who see them will shake the head. Then all men will fear, And all will declare the work of God, And will consider what He has done.

The same principle is at work in the book of I Corinthians. Discussing God's punishment of the Israelites in the wilderness centuries earlier, the apostle Paul writes: "Now these things happened as examples for us, that we should not crave evil things, as they also craved." Again, this aspect of punishment is addressed in II Peter: "He condemned the cities of Sodom and Gomorrah to destruction by reducing them to ashes, having made them an example to those who would live ungodly thereafter." Joseph Story's description of the proper use of impeachment (including the preliminary stages) appears to capture this principle perfectly: impeachment must not become "so weak and torpid as to be capable of lulling offenders into a general security and indifference."

The bottom line is this: There is no full answer to the problem of judicial tyranny short of impeachment. Many other proposals have been put forth over the years, and many others have been revived during the current debate, but none of them will serve as a complete solution under our current Constitution. In fact, some of the proposals themselves are likely unconstitutional. It is true that some of the proposals have involved adopting constitutional amendments. However, the problem with most of these proposals is that they would swing the pendulum too far the other way-the independence of the judiciary would truly be threatened. Any answer involving recall, term limits, or removal on less restrictive grounds threatens the independence of the judiciary. Any answer based on removal of appellate jurisdiction only limits tyranny in those areas of law. Any answer that allows the legislature to overrule the Supreme Court adds a check not intended by the Framers-or to put it more precisely, unchecks a check (upon the legislature) that was intended. Impeachment is the only acceptable answer.

It is no less true today than it was when The Federalist Papers were penned that impeachment "is the only provision on the point [of checking the judiciary] which is consistent with the necessary independence of the judicial character . . ." We should not and cannot shy away from impeachment. Joseph Story wrote of certain things that the Constitution does and does not contemplate with regard to impeachment:

The Constitution supposes that men may be trusted with power under reasonable guards. It presumes that the Senate and the executive will no more conspire to overthrow the government than the House of Representatives. It supposes the best pledges for fidelity to be in the character of the individuals, and in the collective wisdom of the people in the choice of agents. It does not in decency presume that the two-thirds of the Senate representing the States will corruptly unite with the executive, or abuse their power.

Surely, most, if not all, of those on both sides of the current impeachment debate would give a hearty "amen" to Story's list of presuppositions. The nation would not survive should our officials ever act so corruptly. However, Story's list of necessary presumptions does not end here. He goes on, in the very next sentence, to say: "Neither does it suppose that a majority of the House of Representatives will corruptly refuse to impeach . . ." Just as the Constitution cannot protect our liberties if high officials conspire to overthrow the government, so it cannot protect us if the House of Representatives fails to impeach tyrants.

IV. Evaluating Candidates

A. The Romer Six

This section will look at certain judges and justices who have been the target of calls for impeachment. In the spirit of the discussion in Section III. C.-that is, in the spirit of not being concerned with the ultimate chance of success-this Section begins with an examination of the six United States Supreme Court Justices, "the Romer 6," who constituted the majority in Romer. In examining whether these justices are impeachable, this Section will look only at the constitutional question, i.e., whether they are guilty of high crimes and misdemeanors.

The previous sections, which reviewed the Framers' intent, highlighted certain matters that are particularly germane to the case of the "Romer 6." First, rendering unconstitutional opinions, subverting the fundamental laws, and introducing arbitrary power are all high crimes and misdemeanors that constitute impeachable offenses. Furthermore, subverting the fundamental laws may also constitute treason (see the remarks of Mason, in Section II.A.).

"The Romer 6" are guilty of all of these political crimes. The opinion is unconstitutional, i.e., it contains an erroneous interpretation of the Constitution and thereby misleads the American sovereign-the people. This is not merely sour grapes. Every lawsuit has one winner and one loser. Not every losing attorney or litigant should shout "impeachment"-that would be to recommit Jefferson's error.

However, the Romer opinion is egregiously non-legal and extra-legal. When Justice Kennedy declared Colorado's Amendment 2 unconstitutional, he summarily rejected the asserted governmental interests and concluded that "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else." Furthermore, Kennedy asserted, there could be no explanation for the Colorado vote other than animus.

As Justice Scalia pointed out in his dissent, the majority opinion is virtually devoid of legal reasoning. For example, it is quite true, as Scalia wrote, that "the Court's opinion is so long on emotive utterance and so short on relevant legal citation." Scalia also charged that the majority's main "proposition finds no support in law or logic." More specifically, he wrote that "[n]o principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here." Finally, he wrote that "[t]oday's opinion has no foundation in American constitutional law, and barely pretends to."

It is not unusual for the dissenting justices to denigrate the majority's opinion. However, when broad segments of the legal community concur with the dissenting justices, the criticisms must be taken seriously. In the case of Romer, numerous critics have already pronounced Scalia's criticisms to be completely legitimate or have added new criticisms of their own. One recent Law Review article collected and summarized the criticisms of many observers this way:

[W]hen the Court rendered its decision, the only clear aspect of its opinion was the conclusion that Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment. The Court's rationale and analytical approach were both unclear. While the Court claimed to apply the traditional framework of equal protection analysis, the result it reached was inconsistent with the method it purported to employ. This resulting inconsistency prompted some commentators to suggest that the Court was disingenuous or at least shallow in its legal reasoning. Despite the Court's problematic legal reasoning, Romer is a decision with precedential value that will inevitably affect future equal protection cases.

Other criticisms have included the following: "In the end, Romer v. Evans is a bad judgment because it is a dishonest one." "Justice Kennedy's majority opinion conspicuously failed to articulate a principled justification. His opinion was rooted neither in original meaning nor in precedent, and provided little guidance for future controversies." "The troubling thing about the 6-3 Romer decision is that the majestic generalities of Justice Anthony Kennedy's majority opinion are surrounded by such crude, superficial, and evasive legal reasoning . . . ." These criticisms have come from all over the jurisprudential and ideological map, and have been further summarized this way: "Many commentators have labeled the Court's opinion conclusory, incoherent, and superficial."

These are the very problems that initially sparked the talk of impeachment. Among the problems that make the Romer decision unconstitutional, Justice Scalia points out the following:

[Amendment 2's] objective and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.

. . . .

Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, announcing that "animosity toward homosexuality is evil."

. . . .

[T]he principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have re-course to a more general and hence more difficult level of political decision making than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle.

. . . .

The Court today asserts that this most democratic of procedures [the vote on Amendment 2] is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never been done before.

. . . .

The Court today . . . employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values.

. . . .

I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.

But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than "a bare . . . desire to harm a politically unpopular group," is nothing short of insulting.

. . . .

Today's opinion has no foundation in American constitutional law, and barely pretends to. . . . Striking [Amendment 2] down is an act, not of judicial judgment, but of political will.

Furthermore, in the passages in which Scalia discusses Colorado's right to pass Amendment 2, the Tenth Amendment seems to be lurking between the lines. One of the powers retained by the states is the police power-which involves regulating the public health, public safety, as well as the public morality. Scalia defends passage of Amendment 2 in terms that implicitly rely upon the police power: "Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before."

Implicit in this discussion of the unconstitutionality of the Romer decision are the elements that also make "the Romer 6" guilty of subverting the fundamental law and of introducing arbitrary power. As Justice Scalia pointed out, the majority decision threatens the very existence of a multilevel democracy as we know it. Discounting whatever melodrama may be contained in Scalia's words, the concern is legitimate. The Romer decision certainly makes a mockery of the Fourteenth Amendment's Equal Protection Clause, turning it into, as Scalia wrote, a principle "the world has never heard of." In addition it violates the Tenth Amendment. The Romer opinion, in and of itself constitutes arbitrary power because it is an exercise of "political will" by the judiciary.

We recall William Taft's criteria for impeachment: "wantoness [sic] or recklessness in his judicial actions." The Amendment 2 decision is clearly within those bounds. It shows both a wanton and a reckless disregard for certain specific legal principles and for the rule of law, per se.

B. Judge Harold Baer, Jr.

The case against Judge Baer is very different from that of "the Romer 6." Analysis of his first controversial opinion reveals a fairly detailed interaction with the facts, evidence and precedents pertinent to the case. He was using the tools of his trade. He was not making up new constitutional "rights" or legislating from the bench.

The problem with Baer's first opinion was pointed out in his own words in his second opinion:

A legal opinion stands for a proposition of law, a holding. Additional material which is included in most opinions but which does not relate directly to the holding is known as dicta. Although dicta may color the holding of an opinion, it by no means constitutes a legal or factual conclusion. On that score, unfortunately the hyperbole (dicta) in my initial decision not only obscured the true focus of my analysis, but regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.

Baer's comments, about demeaning the police, refer to statements in his first opinion implying that the police in question were part of a corrupt and incompetent force and that a specific officer who had testified was not to be believed. As a result, Baer originally suppressed 34 kilograms of cocaine and 2 kilograms of heroin and a confession to twenty drug-running trips.

Even this does not rise to the level of constituting judicial tyranny in any of the senses encountered in the Romer opinion. On the other hand, Baer's confession of analytical incompetence could have serious consequences if this opinion is not an anomaly. Impeachment was used to remove the incompetent Judge Pickering in 1803-but only because he was thought insane. Thus, targeting Baer for impeachment is probably near the edge of legitimacy. If Congress is concerned that this is a judge who is demonstrating a pattern of analytical incompetence, it could certainly investigate him. There would be cause for concern if there were numerous instances in which any such incompetence were endangering the public as it did in the Bayless case. We have seen that scrutiny less than a congressional investigation has had a salutary effect. However, calling for Baer's impeachment based on this one opinion alone appears to be illegitimate.

C. Judge Nixon

Judge Nixon, on the other hand, does demonstrate a pattern of judicial behavior that appears to constitute introducing arbitrary power. He appears to be motivated by his own personal predilections against the death penalty. He routinely creates an inordinate delay in the death penalty cases assigned to him. Although in some of these cases it may have been appropriate for Judge Nixon to forego involvement until after the state court appeals had been resolved, this is does not explain all the delays. Some of the cases before him had been through the state court system four times. Moreover, higher federal judges have criticized him for his slow pace. Judge Gilbert Merritt of the Sixth Circuit Court of Appeals declared that there was "no acceptable reason" for the delay in two of the death penalty cases assigned to Nixon and took the unusual measure of writing to a newspaper editor to tell him he thought so. In one case, the Sixth Circuit ordered Nixon to expedite a case that he had in his court for eight years.

Several of these cases involve overturning convictions or death sentences under highly questionable rationales which has led to questions by those who know that Judge Nixon has accepted an award from an anti-death penalty group. In one case, Nixon allowed one death row inmate and other individuals and organizations to serve as next friends for another death row inmate in order to seek a stay of execution. The inmate facing execution, Ronald Harries, had decided to forego any further appeals. After that decision, he had been given antidepressant drugs, which the next friends alleged rendered him unable to reconsider his decision. Judge Nixon then stayed the execution, pending a hearing on Harries' competency to waive further appeals.

Although Harries originally opposed the next friend action, he later changed his mind and joined the action as a party plaintiff. His argument was that although he had been competent to waive further appeal, his waiver was involuntary because of the unconstitutional conditions of confinement. In other words, be-cause the prison was not kept in nice enough condition, Harries had decided he would rather accept execution than live there and this decision was therefore involuntary.

Because the claims before Judge Nixon were based upon an alleged violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution, he provided some historical background on that amendment:

It is appropriate to examine the history of the Eighth Amendment in an attempt to resolve issues pertaining to treatment of those sentenced to death.

The courts have historically held that the Eighth Amendment was adopted to prevent inhuman, barbarous, or tortuous punishments . . . .

. . .

As late as 1782 in the case of David Tyree, the [English] Court pronounced sentence as follows:

Mr. Justice Heath.

You David Tyrie, are to be led from hence to the gaol [sic] from whence you came; and from thence you are to be drawn, upon a hurdle, to the place of execution; and there you are to be hanged by the neck; and being alive, to be cut down, and your private members to be cut off, and your bowels to be taken out of your belly, and there burnt, you being alive: and your head to be cut off, and your body to be divided into four quarters; and that your head and quarters to be disposed of where his majesty shall think fit.

One would have thought that with this rehearsal of history, either one would find torture chambers in the Tennessee prison or Judge Nixon would find no Eighth Amendment problem. Not so. Instead, Judge Nixon thought that the idleness and confinement of the inmates, the small size of the cells, poor lighting, outmoded toilets, temperature variations, the presence of insects, and some safety concerns combined to constitute cruel and unusual punishment. Not surprisingly, the Sixth Circuit vacated Judge Nixon's decision.

It is not the intention of this article to comprehensively analyze all of Judge Nixon's rulings in death penalty cases. Some of his rulings cannot be questioned under the controlling precedents. For example, in Houston v. Dutton, the Sixth Circuit upheld Judge Nixon's application of Sandstrom v. Montana, Francis v. Franklin, and Yates v. Evatt to invalidate the state trial judge's presumption of malice instruction. In the same case, the Sixth Circuit upheld Judge Nixon's finding that the trial judge's "heinous, atrocious or cruel" instruction constituted error. On these two grounds, the Sixth Circuit upheld Nixon's writ of habeas corpus.

However, Nixon had not limited himself to these grounds for granting the writ. He had also found that "the evidence of first degree murder offered by the state was insufficient under the Due Process Clause to justify a rational jury in making such a finding." The Court of Appeals chastised Nixon for his misuse of state cases to reach this conclusion and noted that "[t]he District Court's holding, based on the constitutional insufficiency of the evidence at Houston's trial, if upheld, would mean that under normal circumstances a retrial of Houston for murder would be barred by the Double Jeopardy Clause of the Fifth Amendment."

Such misuse of the law is part of the pattern of anti-death penalty behavior by Judge Nixon that has been well documented. Certainly, when both houses of the state legislature, by overwhelming and bi-partisan votes, and the governor ask the United States House of Representatives to investigate these matters because they are convinced that a federal judge is a tyrant in their midst, that judge is a good candidate for an impeachment inquiry. Let the House and Senate do their job and decide if he should be impeached and convicted.

D. Judge Dalzell

Judge Dalzell represents a middle case between judges Baer and Nixon. As the description immediately following indicates, his behavior clearly appears to be tyrannical like Judge Nixon's, yet the impeachment push is based on only one case as is true with Judge Baer. The actual facts in the case before Judge Dalzell revolve around a bizarre and tragic murder and whether the real murderer was convicted. However, the case is controversial because of what Dalzell did and what he wrote. First, he granted a writ of habeas corpus after the convicted murderer had appealed her conviction once but before she exhausted all state remedies. Judge Dalzell also held that the convicted murderer, Lisa Lambert, had established actual innocence, and that the state of Pennsylvania could not re-prosecute. He also declared a man named Lawrence Yunkin to be the actual killer and accused Lancaster County officials of deliberately convicting the wrong person.

The question for this article, however, is whether Dalzell's actions are impeachable. His actions strike at the heart of federalism concerns and thus could be considered as subverting the fundamental law. Senator Arlen Spector, while opposing the impeachment of Dalzell, nonetheless, introduced legislation designed to prohibit federal judges from barring state retrials. Representative Joseph Pitts introduced the House counterpart. The attorneys general of six states filed an amicus brief in support of Pennsylvania's position when it appealed Dalzell's ruling.

One could argue that legal appeals and new legislation would suffice to solve the problems raised by Dalzell's actions. On the other hand, one could argue that the responses to Dalzell's ruling show just how egregious it was. The Third Circuit's reversal of Dalzell also lends credence to the severity of the assault on federalism contained in his opinion.

Among other things, the Third Circuit noted:

Under Rose v. Lundy, 455 U.S. 509, 522 (1982), the district court is required to dismiss a federal habeas petition filed pursuant to 28 U.S.C. þ 2254 which contains both unexhausted and exhausted claims. Because we find the petitioner has not yet pursued her remedies under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. þ 9542 et seq. (West 1997 Supp.), her federal habeas petition includes unexhausted claims and, hence, the result here is dictated by Rose v. Lundy, supra.

Dalzell's refusal to dismiss the habeas petition was compounded by his insistence on addressing Lambert's innocence. Compare the approach of the Third Circuit:

Each side has brought to our attention serious factual issues concerning the district court's finding that Lambert was actually innocent of first degree murder. In light of our resolution of Lambert's petition, we need not comment on Lambert's actual innocence. Indeed, to do so would be to "deprive the state courts of an 'opportunity to correct their own errors, if any,'" by engaging in a premature examination of the verdict prohibited by Congress under the [Anti-Terrorism and Effective Death Penalty Act of 1996].

Certainly, Congress' investigation of Dalzell would be legitimate, especially in light of the Third Circuit's discussion of the federalism question and the tone of Dazell's opinion, which smacks of arrogance and condescension. This may or may not be a situation in which an investigation based upon one opinion would reveal a bigger problem. Once again, in an arguably close case, let the investigation have its salutary effect and let Congress do its job of deciding whether it should proceed further.

E. The Easy Cases

Some of the other judges often mentioned as being on the conservatives' "hit list" are actually "easier cases" than those discussed above and are clearly prime candidates for impeachment under the historical grounds. These judges are "easier cases" because they have committed some of the acts that clearly constitute "high crimes and misdemeanors." The brief mention that follows will not serve as the definitive case against these judges. However, it shows that under historical standards, these judges are not being targeted for political reasons.

Judge Russell Clark has conducted himself in the most clearly tyrannical manner. Judge Clark has been running many aspects of the Kansas City School District since at least 1984, when he issued his first published order in a school desegregation lawsuit. While it is beyond the scope of this article to even attempt to summarize the myriad of published opinions in this case, perhaps the tyrannical nature of his judicial conduct can best be summarized by several lengthy excerpts from Justice Kennedy's concurring opinion in one of the case's several trips to the United States Supreme Court:

The plan was intended to "improve the quality of education of all KCMSD [Kansas City, Missouri School District] students." The District Court was candid to acknowledge that the "long term goal of this Court's remedial order is to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district."

It comes as no surprise that the cost of this approach to the remedy far exceeded KCMSD's budget, or for that matter, its authority to tax. A few examples are illustrative. Programs such as a "performing arts middle school," a "technical magnet high school" that "will offer programs ranging from heating and air conditioning to cosmetology to robotics," were approved. The plan also included a "25 acre farm and 25 acre wildland area" for science study. The court rejected various proposals by the State to make "capital improvements necessary to eliminate health and safety hazards and to provide a good learning environment," because these proposals failed to "consider the criteria of suburban comparability." The District Court stated: "This 'patch and repair' approach proposed by the State would not achieve suburban comparability or the visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint." Finding that construction of new schools would result in more "attractive" facilities than renovation of existing ones, the District Court approved new construction at a cost ranging from $61.80 per square foot to $95.70 per square foot as distinct from renovation at $45 per square foot.

By the time of the order at issue here, the District Court's remedies included some "$260 million in capital improvements and a magnet-school plan costing over $200 million." And the remedial orders grew more expensive as shortfalls in revenue became more severe. As the Eighth Circuit judges dissenting from denial of rehearing in banc put it: "The remedies ordered go far beyond anything previously seen in a school desegregation case. The sheer immensity of the programs encompassed by the district court's order-the large number of magnet schools and the quantity of capital renovations and new construction-are concededly without parallel in any other school district in the country."

The judicial taxation [mandated by Judge Clark and] approved by the Eighth Circuit is also without parallel.

Justice Kennedy was also clear that this judicial taxation was not only without parallel, it was also a usurpation of power:

Article III of the Constitution states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The description of the judicial power nowhere includes the word "tax" or anything that resembles it. This reflects the Framers' understanding that taxation was not a proper area for judicial involvement. "The judiciary . . . has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever." The Federalist No. 78, p. 523 (J. Cooke ed. 1961) (A. Hamilton).

Our cases throughout the years leave no doubt that taxation is not a judicial function.

Another passage, this one dripping with sarcasm, points out once again the tyrannical nature of what Judge Clark has imposed on the Kansas City School District.

Perhaps it is good educational policy to provide a school district with the items included in the KCMSD capital improvement plan, for example: high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; greenhouses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities. But these items are a part of legitimate political debate over educational policy and spending priorities, not the Constitution's command of racial equality. Indeed, it may be that a mere 12-acre petting farm, or other corresponding reductions in court-ordered spending, might satisfy constitutional requirements, while preserving scarce public funds for legislative allocation to other public needs, such as paving streets, feeding the poor, building prisons, or housing the homeless. Perhaps the KCMSD's Classical Greek theme schools emphasizing forensics and self-government will provide exemplary training in participatory democracy. But if today's dicta become law, such lessons will be of little use to students who grow up to become taxpayers in the KCMSD.

Other judges who are on the "hit list" are guilty of the same or similar "political crimes" as the Romer 6 and, thus, are also legitimate candidates for impeachment. Among these are judge Thelton Henderson whose opinion in Coalition for Economic Equality v. Wilson employed a fatally flawed Equal Protection analysis, as did the majority in Romer. This was pointed out forcefully by the Ninth Circuit in its opinion reversing Henderson:

Where, as here, a state prohibits race or gender preferences at any level of government, the injury to any specific individual is utterly inscrutable. No one contends that individuals have a constitutional right to preferential treatment solely on the basis of their race or gender. Quite the contrary. What, then, is the personal injury that members of a group suffer when they cannot seek preferential treatment on the basis of their race or gender from local government? This question admits of no easy answer.

Thus, everything discussed above with regard to Romer v. Evans, is equally applicable here.

As a final example, Judge Stephen Reinhardt held that Washington state's ban on assisted suicide violated the Due Process Clause of the United States Constitution. In so holding, he ignored the entire history of our nation and, indeed, 700 years of common law history. This kind of cavalier disregard for our tradition, history, and morality is clearly something the American people do not have to sit still for-not if they are willing to protect themselves with the tool provided by the Framers.

The argument that the normal appeals process is the proper solution to judicial tyranny by lower court judges will not hold up. Litigants should not be subjected to tyrants and be provided with no remedy other than to spend more of their lives and their fortunes in the hope that the appeal judge or judges will be less tyrannical. Litigants have a right to expect that Congress will exercise its constitutional duty to check the judiciary. Furthermore, many of the actions of these judicial tyrants can impact an entire city, as in the Kansas City desegregation case. In other cases, due to stare decisis, future litigants and, indeed, large segments of society, can be harmed by an unconstitutional opinion that is never appealed.

V. Conclusion

This article has sought to show that the current movement to impeach federal judges for tyrannical behavior is on firm footing. It is no coincidence that Christians have been in the forefront of this movement. With their insight into the spiritual consequences of covenant breaking, they have greater reasons than most to get serious about federal judges who refuse to stay within the proper bounds of their jurisdiction.

However, one need not be a member of the "Religious Right" to appreciate the constitutional legitimacy of impeaching federal judges for rendering unconstitutional opinions, subverting the fundamental laws, or introducing arbitrary power. Nonetheless, everyone who understands that impeachment is the only tool that the Framers gave us to reign in federal judges, must also understand that the tool is susceptible to abuse, just as it was in the days of Jefferson. Therefore, judges must never be targeted for merely "unpopular" opinions.

On the other hand, we should never shy away from this powerful safeguard. Even now, because Congress has not used impeachment as a check on the judicial branch, it has become "so weak and torpid as to be capable of lulling offenders into a general security and indifference," as Justice Story warned it would. It is time to revitalize impeachment and to rein in the federal judiciary.

* Legal Research and Writing Instructor, Regent University Law School;

TOPICS: Constitution/Conservatism; Government
KEYWORDS: impeachment; judges

Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, was cited twenty-four times at the House Impeachment Hearings in 1999. Steven Fitschen, ENDNOTES:


On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition. - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.

"[W]e have no government armed with power capable of contending with human passions unbridled by religion morality and. . . . Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams, The Works of John Adams, Second President of the United States

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of man and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric? George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge), pp. 22-23. In his Farewell Address to the United States in 1796.)

"If the institutions they [the Fathers] adopted are to survive, if the governments which they founded are to endure, it will be because the people continue to have similar religious beliefs. It is idle to discuss freedom and equality on any other basis. It is useless to expect substantial reforms from any other motive. They cannot be administered from without. They must come from within. That is why laws alone are so impotent. To enact or to repeal laws is not to secure real reform. It is necessary to take these problems directly to the individual."- Calvin Coolidge "The Foundation of Our Institutions"


Balancing the Ninth (IMPEACH EM ALL)

It was the fifth time the Ninth Circuit had been reversed in a month. Seven of eight cases already decided by the high Court this year from the Ninth Circuit have been reversed, and six of those seven were by unanimous or nearly unanimous rulings. A few years ago, the Supreme Court even took the extraordinary step of issuing a special order barring the Ninth Circuit from issuing any further last-minute rulings in a death penalty case. The year I was fortunate enough to serve as a law clerk at the Supreme Court, 28 of 29 cases from the Ninth Circuit resulted in reversals. It is almost as if one could write a word processing macro - call it the [Alt-9] macro - which would automatically insert at the end of any opinion involving a case from the Ninth Circuit the following conclusion: "The opinion of the Ninth Circuit is reversed; the decision of the Court is unanimous."

The Ninth Circuit is by far the largest Circuit Court in the country. It is the largest geographically, covering the western states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii - more than one-third of the entire nation. Thus it is no surprise that the lion's share of cases taken by the Supreme Court each term recently come from the Ninth Circuit, but it does not explain the high reversal rate.

STENBERG v. CARHART :Justice Scalia, dissenting. IMPEACH Stevens, Souter, Ginsburg , Breyer, O'Connor

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately say an entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion's expressed belief that Roe v. Wade had "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since"; and that, "by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees." Id., at 995-996. Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism-as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

STENBERG v. CARHART: Justice Kennedy, with whom The Chief Justice joins, dissenting

STENBERG v. CARHART : Thomas, Chief Justice, Scalia join, dissenting.

BOY SCOUTS OF AMERICA v. DALE IMPEACH Stevens, Souter, Ginsburg , Breyer

Evolution and the Law:"A Death Struggle Between Two Civilizations"

Justice Holmes agreed, urging that "the lawyer's task . . . was to participate actively in freeing the law from those archaic doctrines that prevented the law from consciously fulfilling its role of promoting social policy," [217] because "the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end." [218]

Justice Cardozo agreed, declaring:

If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist. [219]

Justice Louis Brandeis (1856-1941) therefore encouraged the Court to break new ground and lead society in new directions, urging, "If we would guide by the light of reason, we must let our minds be bold." [220]

Even though individual Justices and legal educators had encouraged evolutionary law, it was not until Earl Warren (1891-1974) became Chief Justice that there was finally a majority of Justices on the Court willing to embrace that view. One of those Justices (now in the majority) was William Brennan (1906-1997), champion of what he termed "the evolving understanding of the Constitution," "the 'living' Constitution," "the freedom to reinterpret constitutional language," "a malleable Constitution," the Constitution's "power of adaptation," and "the Constitution's 'suppleness.'" [221]

Consequently, during Warren's sixteen year tenure, the Court became a powerful societal force, striking down numerous long-standing historical practices while acknowledging that it was doing so without any previous precedent. [222] In short, the Court thus publicly affirmed that it had finally arrived at its fully evolutionary aspiration, no longer bound by history or precedent.

Under this current theory, judges are solely responsible for the evolution of the Constitution, and it is living and organic according to their decree. As Justice Cardozo acknowledged, "I take judge-made law as one of the existing realities of life." [223] And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, "We are under a Constitution, but the Constitution is what the judges say it is." [224]

Harvard Professor Steven Wise summarizes this radical revolution in legal theory occasioned by the adoption of Darwin's principles:

"To understand the strong normative appeal of evolutionary models, one must first appreciate that American law, like biology at the time of Darwin, faces the problem of providing a theory of creation which does not invoke a Supreme Being." E Donald Elliott, "The Evolutionary Tradition in Jurisprudence," 85 Columbia Law Review 38, 91 (1985). Elliott, who believes that the manner in which law is affected by the ideas that it routinely borrows from other disciplines has been largely unexplored, sets sail by chronicling how the Darwinian idea of evolution has affected the jurisprudential work of such legal scholars as Holmes, Wigmore and Corbin. Id. See also Jan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 Cal. L. Rev. 343, 362 (1984) ("Holmes' The Common Law is first of all an account of legal change, and its object in this respect is to exhibit the workings of Darwinian evolution in law"). Evolutionary jurisprudence was often shunned during the middle half of the twentieth century due to that period's association of evolution with Spencer's racist and reactionary Social Darwinism. Elliott, at 59, 76. It is shunned no longer. Id. See Roger D. Masters, Evolutionary Biology, Political Theory and the State, in Law, Biology & Culture-The Evolution of Law 171 (Margaret Gruter & Paul Bohannon eds., 1983). [225]

Yet, is the fact that the Constitution is now a living, malleable, evolving document, necessarily bad? After all, society does change and should not necessarily be bound by decisions made two centuries ago.

Significantly, the framers agreed with this thesis-they understood that times would change and therefore so should the Constitution. However, they would have vehemently disagreed with the mechanism by which this change occurs today.

The framers made clear that when the meaning, and thus the application, of any part of the Constitution was to be altered, it was to be at the hands of the people themselves, not at the feet of the judiciary or through the usurpation of any legislative body. For this reason, Article V was placed in the Constitution to establish the proper means whereby the people might "evolve" their government. As Samuel Adams explained:

[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary. [226]

George Washington also warned Americans to adhere strictly to this manner of changing the meaning of the Constitution:

If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. [227]

Alexander Hamilton echoed this warning, declaring:

[The] Constitution is the standard to which we are to cling. Under its banners, bona fide [without deceit], we must combat our political foes, rejecting all changes but through the channel itself provides for amendments. [228]

Already, the people have "evolved" their Constitution twenty-eight times by abolishing slavery, granting full suffrage without regard to race or gender, replacing capitation taxes with progressive taxes, imposing term limits on presidents, reducing the voting age for youth, requiring Congress to face the electorate before a congressional pay hike can take effect, etc.

It is this method of "evolving" the Constitution set forth in that document which must be jealously followed. Therefore, if the belief in theistic origins, transcendent values, unalienable rights, or any other political doctrine established in our documents, is to change, it must be done by the people themselves, according to the process established in Article V. Any other method of change is an abuse of power and a usurpation of the rights of the people.

The real danger of societal evolution rests, then, not in the fact that corrections are needed but rather in the fact that those "corrections" are made by a small, elite, and unaccountable group-and often by individuals whose personal values do not reflect those of "we the people." In fact, in a number of recent cases, the courts have unilaterally reversed the outcome of direct elections wherein the people clearly expressed their will. For example:

  1. In Compassion in Dying v. Washington [229] and in Quill v. Vacco, [230] courts reversed the results of elections in Washington and New York in which the citizens had voted to forbid physician-assisted suicides;
  2. In Missouri v. Jenkins, [231] although citizens voted down a proposed tax-increase, the courts nevertheless ordered the tax to be levied;
  3. In Yniguez v. Arizona, [232] the courts reversed the results of the vote by Arizona citizens that English be the official language of the State;
  4. In LULAC v. Wilson [233] and Gregorio T. v. Wilson, [234] the courts suspended the results of the California vote to withhold State-funded taxpayer services from those who are illegally in the country;
  5. In Carver v. Nixon, [235] the courts set aside the results of a statewide election wherein Missouri citizens voted to approve campaign financing reform by setting limits on candidate contributions by individuals;
  6. In U. S. Term Limits v. Thornton [236] and Thorsted v. Munro, [237] the courts overturned the results of elections in which citizens in Arkansas and Washington had voted to limit the terms of their elected officials; and
  7. In Romer v. Evans, [238] the courts overturned a constitutional amendment approved by Colorado citizens to forbid awarding special, rather than just equal, rights to homosexuals.
  8. There are numerous other examples [239] demonstrating that courts now reject the principle of "the consent of the governed" originally established in our governing documents and long held to be a core political doctrine in America. In fact, President George Washington, a Federalist, had declared:

[T]he fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail. [240]

And President Thomas Jefferson, an Anti-Federalist, had echoed:

[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived. [241]

Very simply, the allegedly evolving values of the nation have not been reflected in the Court's evolution of the Constitution, the people have shown no inclination to alter either the view of theistic origins incorporated in our documents or of the type of civilization that proceeds from that belief. Until the people make that change, it is judicial tyranny to impose contrary beliefs on the people. And despite any well-meaning intentions that might rest behind such efforts, those other means are, as George Washington explained, "the customary weapon by which free governments are destroyed."

Allowing the federal judiciary to be the final authoritative voice in determining what the people "need" not only smacks of elitism but also places America under what President Thomas Jefferson so aptly described as "the despotism of an oligarchy." [242]

Laws and Standards - Do They Evolve?

The way in which a society addresses such controversies is directly related to how it answers the following three foundational questions: (1) Can man legislate morality? (2) If so, by what standard should man legislate? and, (3) Does this standard evolve? The answer to each of these questions is determined by one's approach to origins. By convincing large numbers of Christians that law is morally neutral, that human reason is the arbiter of truth, and that standards change as cultures mature, Darwinism has neutralized the restraining influence of Biblical Christianity on culture. While many Christians resist formal acceptance of the evolutionary hypothesis, they have implicitly accepted the assumptions on which the theory rests.

Can man legislate morality?

It is impossible to pass a law which is free from moral implications. The real question is not whether man can legislate morality, but which system of morality will be legislated.

1. The Blackstone Tradition

Blackstone predicated his entire analysis of law on the superiority of special revelation (the Bible) over general revelation (nature), on the reality of a literal twenty-four hour, six-day creation week, on a literal Adam and a literal Fall resulting in the corruption of human reason, and on the Dominion Mandate of Genesis as the foundation for the law of property ownership. Blackstone affirmed the authority of Scripture as the only legitimate foundation for society, and he specifically refuted the idea that laws could evolve as societies change. He wrote:

Men do not make laws, they do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. . . . The doctrines thus delivered we call revealed or divine law, and they are to be found only in holy scriptures. . . . And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be easy. . . . But every man now finds the contrary in his experience, that his reason is corrupt. . . .

2. The "Scientific" Approach to Law

There proceeded during the 19th Century, under the influence of the evolutionary concept, a thoroughgoing transformation of older studies like History, Law, and Political Economy; and the creation of new ones like Anthropology, Social Psychology, Comparative Religion, Criminology, Social Geography. . . . (Julian Huxley)

A millennium of Christian legal tradition came to an end in 1870. In that year, Christopher Columbus Langdell, newly appointed Dean of Harvard Law School, began a revolutionary approach to legal education which specifically discarded the Genesis foundation of law in favor of a philosophy rooted in Darwinism.

Do laws evolve?

The single most influential jurist of the Twentieth Century was United States Supreme Court Justice Oliver Wendell Holmes, Jr. His massive treatise, The Common Law, supplanted Blackstone's Commentaries as the premier text for law students. Holmes taught "the life of the law has not been logic, but experience," and argued that it was the responsibility of courts to direct the evolution of law. Because right and wrong do not exist in any absolute sense, judges must determine which standards are most appropriate at a given point in the evolution of a society.

Holmes and his contemporaries laid the foundation for legalized abortion, no-fault divorce, the legalization of homosexuality, and the rejection of the Framers' vision for Constitutional interpretation. Today, most courts have embraced an evolving standard for Constitutional interpretation, rejecting the notion that the Constitution must be interpreted in light of the meanings intended by the Framers.


Is Religion Dangerous for America? The Supreme Court's Liberals Think So.

 The Supreme Court's decision upholding the constitutionality of taxpayer-financed vouchers for private and religious schools was doubtless a significant victory for the cause of religious and educational freedom in America. But supporters of vouchers - and the prerogatives of religion in our national life generally - should note soberly that the victory was the result of a sharply divided 5-4 decision. And more important than the closeness of the vote was the clear and frightening hostility of the Court's liberal bloc toward those who take their faith seriously.

As all four of the dissenters imply, in varying degrees, those who take their religious faith seriously enough to pursue religious education for their children may pose a danger to society. You see, taking one's religious faith seriously may mean taking it too seriously for the public good, or so these wise men argue. All three dissenting opinions contend that such religious devotion is a grave threat to America, and advocate the use of the Constitution's Establishment Clause as a weapon against it.

The whole purpose of Justice Stephen Breyer's dissent - joined by two others - is to warn of the risk from voucher programs "in terms of religiously based social conflict." He argues that the majority's decision could lead to "a form of religiously based conflict potentially harmful to the Nation's social fabric." Justice John Paul Stevens joins in, explaining that he has "been influenced by [his] understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent." And Justice Souter, whose opinion was signed by all the Court's dissenters, fears that vouchers will threaten the "confidence that religious disagreement will stay moderate," and refers in dark terms to "the divisiveness permitted by today's majority." Why Communism Kills: The Legacy of Karl Marx

This shocking candor makes clear what is at stake as new justices are appointed to the bench in coming years. And this ought to make clear what is at stake in this year's elections for the U.S. Senate, not to mention the presidency in 2004.


 Nihilism and the End of Law

The Biden-Thomas exchange reflected at the partisan political level a problem that permeates the literature of legal philosophy. I call this problem the modernist impasse. Modernism is the condition that begins when Humans understand that God is really dead and that they therefore have to decide all the big questions for themselves. Modernism at times produces an exhilarating sense of liberation: we can do whatever we like, because there is no unimpeachable authority to prevent us . Modernism at other times is downright scary: how can we persuade other people that they want to do to us is barred by some unchallengeable moral absolute?

Yale Law Professor, Arthur Leff, expressed the bewilderment of an agnostic culture that yearns for enduring values in a brilliant lecture delivered at Duke University in 1979, a few years before his untimely death from cancer. The published lecture - titled, "Unspeakable Ethics, Unnatural Law" - is frequently quoted in law review articles, but it is little known outside the world of legal scholarship. It happens to be one of the best statements of the modernist impasse that I know. As Leff put it,

I want to believe - and so do you - in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe - and so do you - in no such thing, but rather that we are wholly free, not only to choose for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good to create it.

The heart of the problem, according to Leff, is that any normative statement implies the existence of an authoritative evaluator. But with God out of the picture, every human becomes a godlet - with as much authority to set standards as any other godlet or combination of godlets. For example, if a human moralists says "Thou shalt not commit adultery", he invites the formal intellectual equivalent of what is known in barrooms and schoolyards as 'the grand sez who?' Persons who want to commit adultery, or who sympathise with those who do, can offer the crushing rejoinder: What gives you the authority to prescribe what is good for me?

Arthur Leff had a deeper understanding of what the death of God ultimately means for man. He saw modern intellectual history as a long, losing war against the nihilism implicit in modernism's rejection of the unevaluated evaluator who is the only conceivable source for ultimate premises. Leff rejected the nihilism implicit in modernism, but he also rejected the supernaturalism that he had identified as the only escape from nihilism. Here is how he concluded his 1979 lecture:

All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinary, unappetising prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cane and Abel. Neither reason, nor love, nor even terror, seems to have worked and made us "good", and, worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore unchallengeable. As things stand now, everything is up for grabs.

Those who stood up and died resisting Hitler, Stalin, Amin and Pol Pot - and General Custer too - have earned salvation.

1 posted on 11/22/2002 3:44:34 PM PST by Remedy
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To: Remedy

The U.S. Supreme Court ending misuse of public funds
and a coup by Mary Frances Berry (D, US Commission of Civil Rights).


Judges Guy Jr., Leavy, Silberman - Expanded wiretap guidelines do not violate the Constitution


9th U.S. Circuit Court of Appeals - Court blocks legal challenge to detention of Afghan war prisoners


In Los Angeles, US District Judge Robert Takasugi of Los Angeles issued a preliminary
injunction blocking enforcement of the US citizenship requirement for airport guards.


In Washington, US Appellate Judges Clevenger, Friedman and Prost
ignore false statements and fraud at the US Patent Office to prevent US citizens
from ever patenting instruments capable of looking for alternative energy sources.
The Court purported measuring energy output has "no utility" for the US
even as Amicus Curiae were gagged who would have testified otherwise,
and as foreign companies (e.g. Mitsubishi) have staked out all relevant patents.
[Meanwhile, the US Patent Office does routinely allow patents using
astrology to predict lottery numbers, claiming they have "operability" and "utility".]

2 posted on 11/22/2002 3:52:47 PM PST by Diogenesis
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To: Diogenesis
3 posted on 11/22/2002 4:14:43 PM PST by LiteKeeper
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To: Diogenesis
JUDICIAL TYRANNY -- is one of the main reasons I prayed for Republican success in this last national election -- the appointment of strictly constitutional minded federal judges --- I hope!

By the way, do you reckon it can be ruled unconstitutional to pray for the election of a certain political parties' candidates? I would guess it depends upon the judge. Hang the rascals!

4 posted on 11/22/2002 4:29:58 PM PST by RAY
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To: Remedy
5 posted on 01/08/2003 2:16:12 PM PST by Centurion2000
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To: Remedy


6 posted on 09/28/2004 4:09:29 PM PDT by Tailgunner Joe
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To: Remedy
U.S. House of Representatives
Committee on the Judiciary
F. James Sensenbrenner, Jr., Chairman
News Advisory
For immediate release Contact: Jeff Lungren/Terry Shawn
September 20, 2006 202-225-2492
Courts Subcommittee Hearing Thursday on Whether
Impeachment Articles are Warranted for U.S. Judge Real
What: Legislative Hearing on H. Res. 916, a resolution impeaching Manuel L.
Real, a U.S. district judge of the Central District of California, for high
crimes and misdemeanors
Who: Subcommittee on Courts, the Internet, and Intellectual Property – Rep.
Lamar S. Smith (R-Tex.), Chairman
When: 9:00 a.m., Thursday, September 21, 2006
Where: 2141 Rayburn Building
In February 2000, Judge Real allegedly interceded on behalf of a defendant known to him in a
joint bankruptcy and California state unlawful-detainer action. According to published reports, Judge
Real received ex parte communications from the defendant and through third parties about the matter
before he took action. He was also supervising the defendant as part of her probation in a separate
criminal case in which she had pled guilty to perjury and loan fraud.
Judge Real withdrew the complaint from the bankruptcy court and enjoined the state eviction
proceeding. He allegedly gave no reasons for his assertion of jurisdiction over the case or his rulings.
The defendant was allowed to live rent-free in the home for a period of years. When the trustee appealed
by mandamus to the Ninth Circuit, Judge Real transferred the case to another district judge. The trustee
eventually reclaimed the property on appeal but lost at least $35,000 in rent during the proceedings.
Attorneys fees were in the tens of thousands of dollars.
A Ninth Circuit Judicial Council is investigating – for the third time – Judge Real’s behavior in
this case. A report issued yesterday by a Judicial Committee headed by Justice Stephen Breyer found
that the complaint was mishandled the two previous times by the Ninth Circuit. More information about
Judge Real’s conduct is available at .
T What are the facts surrounding Judge Real’s behavior when he became involved in the Canter
legal proceedings?
T What relevant impeachment precedents exist for review by the Subcommittee?
T Is the commission of a serious crime an essential requirement for impeachment? What is the
purpose of impeachment?
T Has the Ninth Circuit handled its investigation of Judge Real’s behavior appropriately?
T Are there other actions that the House of Representatives or Congress can take regarding Judge
Real’s behavior short of impeachment?
WITNESSES: The Honorable Manuel L. Real, U.S. district judge for the Central District of California;
Andrew Smyth, attorney for Deborah Canter (the defendant in the unlawful detainer and bankruptcy
actions); Arthur Hellman, Professor, University of Pittsburgh School of Law; and Charles Geyh,
Professor, Indiana University School of Law

7 posted on 01/16/2007 9:05:44 PM PST by thecourtwatcher
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To: thecourtwatcher

/bookmark for when I have an afternoon to read this.

8 posted on 01/16/2007 9:07:38 PM PST by KoRn
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