In American politics, once-dormant issues, when they re-emerge into public view, seem often to do so in clusters of related events. So, in 1996, talk of impeachment has been in the air on three separate occasions, once involving the executive branch and twice involving the judiciary. First it was Treasury Secretary Robert Rubin, threatened in early January with the prospect of impeachment proceedings in the House by Republican Congressmen Gerald Solomon (NY) and Christopher Cox (CA) for the allegedly unconstitutional means by which he had avoided a government default on the national debt during the protracted struggle between the Clinton administration and Congress over the budget earlier in the winter.
Next it was Judge Harold Baer, Jr., of the U.S. District Court in New York City, who in late January held the fruits of a car search (80 pounds of narcotics) inadmissible because, in the neighborhood of New York where the search took place, it was rational behavior for citizens to run from police, leaving no “reasonable suspicion” that a criminal act had been committed. Before long, both Speaker Gingrich and Senator Dole suggested that Judge Baer be impeached, and there was even an initial statement from the White House spokesman that the president might seek Baer’s resignation. In early April, Baer reversed his earlier ruling, and that seemed to be the end of that.
Finally, following the Supreme Court’s Evans v. Romer decision in May, striking down an amendment to the Colorado constitution that prohibited legislation advantaging homosexuals, Will Perkins of Colorado for Family Values (a group that had pushed for passage of the overturned Amendment 2) raised the possibility of a popular campaign to impeach all six justices in the Evans majority. There has been no movement on this front so far, but the liberalism of the federal judiciary continues to be an issue in this year’s presidential campaign.
There has probably not been so much talk of impeachment since the House Judiciary Committee voted in 1974 on articles of impeachment against President Nixon. And not since 1970, when Congressman Gerald Ford introduced a resolution (co-sponsored by over 100 other members of the House) calling for the impeachment of Justice William O. Douglas, has there been such open discussion by responsible political leaders of the prospect of impeaching federal judges for the views they express from the bench.
What is noteworthy this time around is the willingness of federal judges themselves to enter into the debate over the propriety of impeaching them for the quality of their work. In late March, the chief judge of the Second Circuit and his three predecessors defended Judge Baer from the “extraordinary intimidation” of the Clinton administration (though its call for his resignation had been quickly abandoned) and responded to Gingrich and Dole by stating flatly that “a ruling in a contested case cannot remotely be considered a ground for impeachment.”
But the high point in the judiciary’s response was reached on April 9, when Chief Justice William H. Rehnquist delivered a speech at American University’s Washington College of Law. Rehnquist spoke circumspectly, taking up the subject of impeachment only in the second half of his speech, and never alluding even remotely to the recent remarks made in the public arena about Judge Baer (this before the Evans decision). Resorting to history to support an independent judiciary, the Chief Justice grounded an argument for the narrowest possible reading of Congress’s impeachment power on the story of Justice Samuel Chase, impeached by the House but acquitted by the Senate in 1805. Rehnquist had told this tale before, in his book Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (Wm. Morrow, 1992).
In his April 9 speech, the Chief Justice rightly notes that the Constitution employs ambiguous language regarding exactly how independent the federal judiciary is to be. Article III, rather than referring to a life tenure for judges, says that they shall serve “during good Behaviour.” And according to Article II, executive and judicial officers are removable on grounds of “Treason, Bribery, or other high Crimes and Misdemeanors.” As Rehnquist describes the interpretive problem: “The term ’high crimes and misdemeanors’ was sufficiently amorphous to leave open the possibility that a federal judge could be removed from office, not only for conduct that was criminal, but for rulings from the bench that seemed flagrantly wrong.”
According to the Chief Justice, the Chase trial of 1805 “in effect resolved this question,” giving “the assurance to federal judges that their judicial acts— their rulings from the bench— would not be a basis for removal from office by impeachment and conviction.” In his 1992 book, Rehnquist concludes even more forcefully that “[n]o matter how angry or frustrated either of the other branches may be by the action of the Supreme Court, removal of individual members of the Court because of their judicial philosophy is not permissible.”
Rehnquist even asserts in his speech that all impeachment convictions since the Chase trial have been for criminal behavior, which is simply untrue. But more important is his position that “judicial philosophy” can form no grounds for impeachment and removal, for it might well be argued that noncriminal grounds only of a narrower sort than this are acceptable. It is true that no judge has ever been removed because of his “judicial philosophy.” But it is not true that the trial of Samuel Chase “resolved [the] question” whether such grounds are acceptable ones.
Chase, an ardent Federalist, was impeached by the Jeffersonian Republicans in the House of Representatives for behavior while presiding over circuit court proceedings that, depending on one’s point of view even today, can be called either mildly intemperate or highly improper. Following a Senate trial in which arguments at both extremes were made regarding the impeachment power— the view that any grounds for removal by Congress are permissible vying with the position that only indictable crimes are impeachable— Chase was acquitted on all charges, though on three of the eight counts a majority of the Senate voted to convict (falling short of the two-thirds vote required).
Chase’s acquittal established no firm precedent for the action of future Congresses. Studies as old as Henry Adams’s History of the Jefferson years and as recent as Professor Eleanore Bushnell’s 1992 work on impeachment, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials, have concluded that, “[n]o point was decided” regarding “impeachment as a principle of law” and that the constitutional issues “were raised but not settled.”
Even if the Senate in 1805 had been more mindful of guiding the future, today’s Congress would not be bound by its action or its reasoning in the same way that courts of law are bound by precedent. No Congress’s actions, other than in the form of a ratified constitutional amendment, can bind those of a future Congress. And although the Senate sits as a court during impeachment trials, it is not a court, but a political body deliberating on what are properly considered political offenses. Both houses, in prosecuting and trying, must reach their own conclusions in any new case regarding what are impeachable violations of an officer’s duties. The past can be intrusive, but each impeachment case is likely to be sui generis in decisive respects.
If the “precedent” of the Chase trial is not what Chief Justice Rehnquist makes it out to be, the question remains an open one whether the recent calls for impeachment of federal judges are beyond the pale of what the Constitution allows. And if not to the Chase trial, where else should we look for enlightenment?
A good place to start, as with so many things, would be the Federalist Papers. As I have pointed out in my recent book Against the Imperial Judiciary, Alexander Hamilton took pains to identify the congressional impeachment power as an appropriate remedy for the abuse of the judiciary’s independent authority. While he is remembered for explaining the Supreme Court’s power to declare some laws unconstitutional, it is commonly overlooked that he regarded impeachment as a significant check on this power: “There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.” Elsewhere, speaking more generally of the impeachment power’s use against officers of both the executive and judicial branches, Hamilton referred to it as “a
method of NATIONAL INQUEST into the conduct of public men” guilty of “the abuse or violation of some public trust,” noting that such abuses “may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself” (Federalist No. 65).
Subsequent commentators on the impeachment power, even in the years following the Chase trial, took a similar view of its appropriately political uses. Justice Joseph Story, for instance, in his 1833 Commentaries on the Constitution, said that the power applies to “what are aptly termed, political offences, 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.” Recognizing the impossibility of fixing the definition of “high crimes and misdemeanors” with any permanence or precision, he urged that these political offenses “must be examined upon very broad and comprehensive principles of public policy and duty.” And since the independence of the federal judiciary must not be permitted to become “irresponsibility,” Story pointedly remarked that “for any corrupt violation or omission of the high trusts confided to the ju
dges, they are liable to be impeached.”
Neither Story nor Hamilton thought the House and Senate could properly impeach and remove an executive or judicial officer for purely partisan reasons—though it goes without saying that should such a removal occur, there is no tribunal above the Senate to which a victim of such partisanship could appeal. But somewhere between nakedly partisan grounds and garden-variety criminality are high and proper political reasons for impeachment, both of judges and of presidents and their subordinates. We should remember that the framers introduced checks and balances to enable each branch of government to defend itself against “encroachments” on its authority by the others. Aside from amending the Constitution, the checks that may be exerted against the Supreme Court’s power of judicial review are few and mostly indirect. Even legislative regulation of the Court’s appellate jurisdiction, a power which is itself too seldom used on constitutional matters, is not so direct and forc
eful an expression of Congress’s equal right to expound the Constitution as is the impeachment power.
One of the most common criticisms of the Supreme Court is that the justices frequently act more like legislators than like judges in constitutional cases. Chief Justice Rehnquist himself has often— and rightly— been among those accusing majorities on the Court of such usurpation of congressional and state legislative authority. Thus if we follow the principles of Hamilton and Story, Congress could properly seek the removal of several members of the current Court. Rehnquist’s distortion of the historic import of Samuel Chase’s acquittal, whether willful or not, is understandable, for “the interest of the man” naturally comes to be “connected with the constitutional rights of the place” (Federalist No. 51) Given his own no doubt painful awareness that several of his colleagues routinely vote to usurp the authority of other institutions, we might even say that the Chief Justice spoke out of a high-minded, far-sighted concern to shield the independence of
the judiciary from a power that might be corruptly used against good (but unpopular) judges as well as bad ones. But he leaves us little recourse, for while he notes the freedom of all citizens to “criticize” the work of the Court, everyone knows how little effect such criticism has on its members’ behavior.
It is an ancient maxim in law and politics that the potential for the abuse of a power is no argument against its use. Certainly this is true of judicial review itself, the most frequently abused power in American politics today. And if the Constitution’s framers and authoritative early commentators regarded the impeachment power as perhaps the most decisive available response to judicial imperialism, it is past time to consider following their wise counsel. Never mind Judge Baer in New York; he is small fry, and even his absurd initial ruling that caused such controversy can reasonably be traced to prior precedents of the Supreme Court. The latter is the level of the federal courts where the problem lies and the solution should be attempted. The press and the left (or do I repeat myself?) will howl, but why not begin with one or more of the justices in the Evans majority, as Colorado’s Will Perkins suggests? Given the obvious pattern of judicial review run amok that m
ay be seen in this and like cases (such as the 1992 Casey abortion ruling), Congress is well-positioned under the Constitution to do itself, the people and legislatures of the various states, and the Constitution itself, a great service. With due caution and care to avoid the lowest and shrillest partisanship to which congressmen are wont, and to preserve the proper but limited scope of judicial independence, an impeachment trial of a Supreme Court justice for a pattern of voting to undermine the Constitution can become, not only the “national inquest” of which Hamilton spoke, but a great national seminar on the principles of our enduring charter of government.
Matthew J. Franck teaches political science at Radford University, in Virginia, and is author of Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People (University Press of Kansas, 1996).