Impeachment of judges- some American views from the left and the right

 The Founders' intent for impeachment was to protect the fundamental principle of “the consent of the governed.” The Constitution carries no title but “We the People,” and impeachment removes from office those officials who ignore that standard. (Recall that the Constitution does not guarantee a federal judge his position for life, but only for the duration of “good behavior.” Art. III, Sec. 1)

For this reason impeachment was used whenever judges disregarded public interests, affronted the will of the people, or introduced arbitrary power by seizing the role of policy-maker. Previous generations used this tool far more frequently than today's generation; and because the grounds for impeachment were deliberately kept broad, articles of impeachment have described everything from drunkenness and profanity to judicial high-handedness and bribery as reasons for removal from the bench. (Sixty-one federal judges or Supreme Court Justices have been investigated for impeachment, of whom thirteen have been impeached and seven convicted.)

Today's judiciary, not having experienced any serious threat of impeachment as judges in earlier generations, repeatedly flaunts its contempt for the will of the people. It recently has overturned direct elections in Washington, New York, California, Arkansas, Texas, Missouri, etc., simply because it preferred a different outcome. This is not to suggest that the results of all citizen elections are final and infallible, for it is the duty of the Court to protect the Constitution. However, the above elections violated at most the judiciary's ideological leanings rather than any manifest provision of the Constitution (e.g., English as a State's official language, ending government assistance for illegal immigrants, enacting term-limits, prohibiting physician-assisted suicides).

Examples of Judicial Abuses

While most are aware of the 9th Circuit's recent decision that saying “under God” in the Pledge of Allegiance threatens our American form of government, there are numerous additional examples, some staggeringly unbelievable. For example, in Jane Doe v. Santa Fe, a federal judge ruled that graduation prayers must not include any mention of “Jesus” or other “specific deities” and that any student offering such a prayer would face immediate arrest and up to six months in jail. The judge threatened “violators” by saying they would wish they “had died as a child” once his court finished with them.

In a Texas county where conservatives narrowly won multiple seats in an election, a federal judge reversed that outcome by arbitrarily throwing out the 800 votes cast by U.S. military personnel, saying they had no right to vote in local elections.

A federal judge in Nashville reviews the verdict of any jury in Tennessee that awards the death penalty. This judge has openly declared his personal opposition to the death penalty and has set aside every jury decision on this issue, despite the Constitution's explicit language to the contrary. The judge even allows nine years to pass, on average, before overturning the jury's sentence, thus disregarding the Constitution's guarantee to a speedy trial.

After citizens in a statewide election voted down a proposed tax-increase in Missouri, a federal judge, in direct violation of Article I of the Constitution, unilaterally set aside the election results and instead decreed that the tax be levied in order to finance his own personal plan for education in the State. Interestingly, this judge's plan (which funded the “Taj Majal” of public education) proved to be a dismal failure - at the continuing economic expense of the entire State.

There are many other examples; today's judiciary is now so arrogant that the Supreme Court's own Justices have described it as “a super board of education for every school district in the nation,” as amateur psychologists on a “psycho-journey,” and as “a national theology board.”

The Supreme Court versus Congress

Even though the Constitution gave the lawmaking powers to the Congress, courts have become the predominant policy making body in the nation. In fact, on public tours of the Supreme Court, one often hears the ridiculous claim that “this is the building from which all the laws in the land emanate.” The Supreme Court, fully believing its own propaganda, regularly strikes down or rewrites the laws of Congress to conform to its own predilections and edicts.

For example, in 1993, Congress passed the Religious Freedom Restoration Act (RFRA) to correct an earlier Supreme Court decision that weakened a long-standing First Amendment protection for religious groups. That Congressional act reinstituted protection declaring that a government entity must not interfere with a religious body unless it had “a compelling state interest” for doing so. When a Catholic church in Boerne, Texas, sought to accommodate its burgeoning membership but was denied a building permit to expand its facilities, the church invoked relief under RFRA, claiming the city had no “compelling state interest” in denying the church expansion. The Court ruled otherwise, striking down Congress' attempt to protect religious bodies from government intrusion. While most decried this decision for weakening the rights of religious bodies, there was a far greater question at stake.

Congress invoked Section 5 of the Fourteenth Amendment of the Constitution in passing RFRA to protect religious freedoms from further governmental encroachment. Yet even though the Congress had acted on the power explicitly given it in the Constitution, the Court struck down the law, refusing to be corrected by Congress and warning that Congress should not attempt to correct a Court ruling. Significantly, Congress cited the Constitution as its authority for passing RFRA, but the Court did not cite the Constitution as its authority for striking RFRA down. The Court instead pointed to its own previous decisions, thus elevating its rulings higher than the Constitution itself. As it explained, “Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.” The Court then rebuked Congress, warning that its judicial edicts must be treated “with the respect due them.” In short, we the Court demand that you the Congress adhere to our opinions regardless of what the Constitution says.

Obviously, the Supreme Court considers both itself and its decisions supreme over Congress. However, the Constitution disagrees - it deliberately empowers Congress with greater power. For example, the Constitution gives Congress the authority to set the salaries for judges, determine the size of the Judiciary, establish the scope of the Judiciary's jurisdiction and the types of cases which come before it. Furthermore, judges cannot serve without the approval of Congress, and Congress may remove judges with whom it is dissatisfied. These are just some of the “constitutional arms” for Congress' “powers of self-defense” (Federalist 73, Alexander Hamilton).

The Constitution clearly places many of the operations of the Judiciary under the oversight of Congress - a power not granted reciprocally to the Judiciary. This is made clear in the Federalist Papers (described by James Madison as “the most authentic exposition of the heart of the federal Constitution”), which confirm that subjugating the Judiciary to Congress was deliberate and intentional. Federalist #51 declares:

The legislative authority necessarily predominates.

Federalist #78 then proclaims:

The Judiciary is beyond comparison the weakest of the three departments of power.

Furthermore, Federalist #49 declares that Congress - not the Court - is “the confidential guardians of [the people's] rights and liberties.” Why? Because the Legislature - not the unelected judiciary - is closest to the people and most responsive to them. In fact, the Court's own history proves that it is not a proficient guardian of the people's rights. For example, after the Civil War, Congress passed civil rights laws forbidding segregation, but the Court struck down these laws and instead instituted “separate but equal” in Plessey v. Ferguson. (While the Court eventually ended this racial segregation in Brown v. Board of Education, that decision was merely the Court's reversal of its own segregation standard previously established in Plessey.)

Moreover, had it been up to the Court, slavery would have never ended: in 1857, the Court declared it unconstitutional for the other branches to end slavery or to free slaves. Fortunately, Congress ignored that decision by declaring freedom for slaves in 1862 and President Lincoln also ignored that decision by issuing the “Emancipation Proclamation” in 1863. All substantive progress in civil rights after the Civil War was accomplished only after Congress used Article III, Section 2 of the Constitution to remove Reconstruction issues from the Court's reach. Indeed, history demonstrates that the Court is less than a faithful guardian of the people's rights, violating the people's liberties as often as it protects them. As Thomas Jefferson pointed out:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.

Today, the Court claims that it is the only body capable of interpreting the Constitution - that Congress is incapable of determining constitutionality. However, the Founding Fathers vehemently disagreed. For example, James Madison declared:

[T]he meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.

Constitutional Convention delegate Luther Martin similarly attested:

A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.

The Founders consistently opposed the Court being the final word on constitutionality. For example, Thomas Jefferson declared:

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal.

He further explained that if the Court was left unchecked:

The Constitution . . . [would be] a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.

Allowing the Court to enlarge its own sphere of power beyond what the Constitution authorizes, permitting the Court to usurp the powers of Congress, and tolerating the Courts' disregard of constitutional separation of powers moves America ever further from being a representative republic and ever closer toward the oligarchy against which Jefferson warned. The Court must be resisted in these attempts.

Impeachment: The Founders' Solution

As noted earlier, judges in previous generations who usurped powers from Congress or the people faced impeachment. But today's critics claim that the use of impeachment would either make the judiciary a “political” branch (as if it were not already a political branch) or that it would violate the “independence of the judiciary.” Yet, as Thomas Jefferson so accurately cautioned,

It should be remembered as an axiom of eternal truth in politics that whatever power . . . is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass.

No judge should ever be so independent that he is unaccountable to the Congress, and thereby the people. As Justice James Iredell (placed on the Court by President George Washington) so clearly explained:

Every government requires it [impeachment]. Every man ought to be amenable for his conduct.

Iredell further noted that some officials will behave themselves only under “the very terror of punishment” that impeachment provides. Recent events suggest he was right.

In 1996, six members of the Supreme Court voted to overturn the Colorado election forbidding special (rather than just equal) rights for homosexuals. Following that flagrant display of contempt for the will of Colorado voters, there was a national call for the impeachment of those six Justices. After this clamor for their removal, those same six Justices suddenly became ardent defenders of the people's elections and in a subsequent decision unexpectedly and unanimously chastised a lower court that had overturned a statewide election in Arizona. (Interestingly, Thomas Jefferson on multiple occasions called impeachment a “scarecrow” - something used to frighten predators - and the threat of impeachment certainly had that effect on the Supreme Court.)

Similarly, after a federal judge overturned a binding referendum by the voters of California (“Proposition 209”), national leaders called for the impeachment of that judge. Later, the 9th Circuit ordered the results of the election reinstated and criticized that judge for ignoring the will of the people. Yet, this same 9th Circuit Court had itself shortly before overturned at least three similar elections. Why the flip-flop? The “scarecrow” had been forcefully raised by Congress to make judges accountable for their decisions by returning to the original constitutional uses of impeachment.

It is true that impeachment is a cumbersome process, and achieving a conviction is difficult. However, on most occasions, just the threat of impeachment produces results. In fact, there are several examples of federal judges correcting their own decisions after hearing Congressional calls for their impeachment; and an actual impeachment sends an even more powerful message to all other wayward leaning judges.

Although Congress is ultimately responsible for the discipline of judges, far too many of our Congressmen (like far too many of our citizens) have no understanding of the proper use of impeachment. However, a wise political axiom declares that “Congress sees the light when it feels the heat,” and this is especially true on this issue. As citizens, we need to educate ourselves on the proper use of judicial impeachment, and then we need to educate our Representatives, reminding them of the need for judicial reform and alerting them to those judges showing a pattern of abuse. The time for encouraging judicial accountability is once again ripe. This is a golden opportunity for citizens to weigh in and make a difference.

(An excellent tool for educating yourself and your Congressional representative is the book Restraining Judicial Activisim . This work documents both the Founders writings on this issue and how impeachment was used in America in previous generations. Get a copy for yourself and an extra copy for your Representative and Senators!)

Copyright © 2002 David Barton, 

 

Nathan Newman -Huffingtonpost

Nathan Newman, a lawyer and Ph.D., has an extensive history of supporting local policy campaigns, from coalition organizing work to drafting legislation. Previously Executive Director of Progressive States, an Associate Counsel at the Brennan Center for Justice, Program Director of NetAction's Consumer Choice Campaign, and co-director of the UC-Berkeley Center for Community Economic Research, he has also been a labor and employment lawyer, freelance columnist and technology consultant. He received his J.D. from Yale Law School and his Ph.D. in Sociology from the University of California at Berkeley and has written extensively about public policy and the legal system in a range of academic and popular journals, including publishing a book, Net Loss: Internet Prophets, Private Profits and the Costs to Community, detailing the relationship between telecommunications public policy and local economic development. His writing and organizing has been cited in the New York Times, USA Today. San Jose Mercury News, Baltimore Sun, Wired, Village Voice, ZDNet, CNet News, San Francisco Chronicle, TheStreet.com, Chronicle of Higher Education, MIT’s Technology Review, The Nation and the American Prospect. 

With the threat of the Supreme Court striking down the most important progressive domestic initiative in a generation, we should be talking about impeaching Supreme Court Justices who engage in such right-wing judicial activism.

Impeachment?  Many progressives shrink back in horror at such a supposed affront to judicial independence.  For an example, see Ruth Marcus's tizzy over President Obama's rather mild (and accurate) statement that unelected judges striking down such a core economic regulation would be unprecedented in the post-1930s legal environment.

But we need to be talking about impeachment if we are not to see every progressive economic regulation struck down by the courts as outside the supposed intent of the Constitution's Founders -- the regular rhetoric of those promoting rightwing legal theory.

What we have been witnessing in recent years is the rising use of anti-democratic means by corporate-backed interests to block any advance of progressive legislation.

• The filibuster -- once an infrequently deployed weapon -- has become a daily tool of the right-wing in blocking legislation and making a farce of majority rule in this country.
• Corporate money in both elections and deployed in the halls of Congress and state legislatures has exploded to corrupt the process -- and the Supreme Court in its Citizens United decision has just abetted this empowering of moneyed interested at the expense of the general public.
• Conservative legislators have promoted "Voter ID" laws and other strategies to disenfranchise the poor -- laws validated by this Supreme Court

A Supreme Court attack on Obamacare -- the signature progressive legislative advance in a generation and a reform delayed for decades by conservative filibusters and other anti-majority legislative maneuversing -- would be a culmination of this anti-democratic movement.   It would no doubt open the floodgates of this right-wing Court majority striking down regulation after regulation as not meeting their narrow definitions of constitutionality.

So why talk about impeachment?   Especially since it takes a two-thirds vote of the Senate, it won't happen any time soon.

Talking about impeachment, however, is a way to label this right-wing Court majority as the partisan tool of corporate right-wing interests that it has become.   The Constitution says judges "shall hold their Offices during good Behaviour," so speaking of impeachment is the way to assert that using partisan judicial power to undermine health care for our nation is not proper behavior for unelected judges.

An attack on the health care reform law by what would inevitably be a narrow 5 to 4 partisan divide on the Court -- and by extension the Court reasserting its power to strike down core economic regulations -- is not a normal act of judicial review, modifying democratic governance at the margins, but the Supreme Court becoming de facto another partisan legislative body.

When Earl Warren led the Court in its Brown v. Board of Education decision in 1954, he made sure it was a 9-0 unanimous decision to make clear that  such an extraordinary intervention into democratic governance reflected a nearly universal consensus in the legal world.   The current Roberts Court, on the other hand, regularly hands down anti-democratic decisions based on 5-4 partisan divides, undermining any credibility that the Court speaks for beliefs with any partisan difference from other political branches.

In the very short term, talking about impeachment publicly is one way to signal to the Roberts Court majority that the legitimacy of the Supreme Court is on the line with this decision -- and it might make a swing vote like Anthony Kennedy think twice before crossing that Rubicon.

And in the longer term, talking about impeachment is also a way to prevent any adverse Court decision on Obamacare creating an ideological sense in the public that health care reform itself is somehow illegitimate.   There are plenty of ways to pursue health care reform in new ways and we don't want any Court decision to chill the public debate in pursuing those alternatives.

The right-wing Court may try to strike down those alternatives but they will fear a backlash that could lead to actual impeachment if they block every democratic avenue to such a popular goal as health care reform.

Why Progressives Should Not Value Judicial Independence: But, argue the nervous liberal defenders of the courts, won't such progressive attacks undermine the courts more generally?

Quite honestly, judicial independence is quite well defended in the U.S. Constitution.  As noted, tt takes a two-thirds vote of the Senate to remove a federal judge, which is almost insurmountable in our two-party system. The Justices don't need us to watch our language to remain the least accountable branch of government.

But some progressive legal scholars seem to worry that rhetorical attacks on the Court will somehow delegitimize the Court in the public mind -- as if that's a bad thing.

Here's the reality.  Because of a few high-profile decisions under the Warren Court, many progressives are under the delusion that the courts are the institutional friend of civil rights and a democratic society.  In fact, the courts have mostly been the enemy of democracy and liberties in this nation and served overwhelmingly as the handmaiden of corporate privilege.

In the 19th century, it was the Supreme Court that protected slaveowners from state government and congressional laws that sought to extend even the most limited protections to escaped slaves -- thereby precipitating the Civil War.  Immediately after the Civil War, the Supreme Court struck down most of the federal Reconstruction laws, literally freeing terrorists in the South to murder at will. (See here for more on the post-Civil War history of the Court ushering in Jim Crow and lynching in the South.)

And far from enshrining "states' rights," the Supreme Court in the 19the century and early 20th century would strike down state law after state law that sought to limit corporate power, limit child labor or enact basic reforms like the minimum wage.   Recent decades where the Court has struck down affirmative action laws, limited local environmental regulations and gutted campaign finance laws is not a deviation from the historic role of the Supreme Court but merely returning it to its normal status quo of serving elite interests.

It was the a couple of decades of the Warren Court that was the deviation -- and it did far less than most of its cheerleaders think it did.   Yes, Brown v. Board was important symbolically, but most public schools were desegregated not by court order but by the 1965 Title I education law, which used the bludgeon of federal money to push forward the limited gains in integration achieved in our schools.   The limited rights of the accused supposedly protected by the Warren Court actually coincided with an explosion of rising prison rolls in this country.  And legal abortion had been spreading across the states before the iconic Roe v. Wade decision was decided -- and no less a scholar than current Justice Ruth Bader Ginsburg has argued that far from advancing abortion rights, the decision may have fed a backlash that undermined grassroots movements for abortion rights.

Progressives need to get over their recent attachment to the courts as an institution and recognize that unelected judges have overwhelmingly been the enemy of civil rights and economic justice in this nation.

Mounting a full-throated progressive campaign against a rightwing judicial elite ultimately complements the Occupy rhetoric against the financial and political elites protecting the interests of the 1% in our society.

Talking about impeachment is a way to pull together critiques of a Court that increasingly just protects moneyed interests in cases ranging from Citizens United to a myriad of other less-known cases that just pad the wallets of the financial elite and undermine our democracy.

We need to start talking about impeachment before the court makes democratic action on most progressive legislation impossible.