Constitutional Opinions: Impeachment DeLay
Eastland, Terry
CONSTITUTIONAL OPINIONS by Terry Eastland Impeachment DeLay I n early March House Majority Whip Tom DeLay told the Washington Times that congressional Republicans will try to impeach "activist"...
...Since that time political considerations, including objections to judicial decisions, have animated many impeachment investigations...
...Riding on circuit, as was then common, Chase had greatly irritated Republicans by delivering to a Baltimore grand jury a charge critical of Jefferson's abolition of judgeships created by the lameduck Federalists in 1801, and also of Republican proposals to amend the Maryland constitution...
...I n light of the modern judiciary's encroachment into areas once exclusively claimed by the elective branches, it would be odd to insist Congress should continue to rule out impeachment as a response to particular decisions and limit the grounds of impeachment of judges to indictable behavior (a limitation, by the way, not made in the case of the president...
...Selective targeting is thus not only unfair, but it may be misguided...
...Dare I ask whether there might be anything to be said for DeLay's suggestion...
...s'ifi 59...
...Unlike appellate judges, who usually rule in groups, often joining the work of others, district judges operate independently, rendering decisions that are theirs alone...
...But objections come from the other side of the spectrum as well...
...DeLay's wholesale critics are mistaken: There is something to be said for impeaching activist judges...
...There never has been any serious question about whether judges are included among "all civil officers...
...What Tom DeLay has done is ask whether judges today should be assured that kind of independence— indeed whether "high crimes and misdemeanors" should also encompass judges' decisions...
...In other words, what they do can The American Spectator • June r 9 97 be clearly identified...
...This, I take it, is DeLay's argument, and it is not a trivial one...
...DeLay usually names three judges as his targets, but because he has yet to explain the legal shortcomings of the rulings that set him off, he is vulnerable to the charge that he is simply playing politics...
...Conceding that he was out ahead of the House leadership, which has yet to endorse his suggestion, DeLay absorbed the inevitable ridicule...
...But given the last three judges to be removed from office—Harry E. Claiborne for income tax evasion (1986...
...As Chase saw it, Republicans were out to undermine judicial independence and the rule of law...
...But no judge subjected to impeachment has ever had to go through what Chase did and face articles of impeachment concerned solely with his judicial decisions...
...This is not to say that Chase's view that only indictable conduct can constitute an impeachable offense has always prevailed when federal judges have faced There's a case to be made for impeaching bad judges...
...58 June 1997 • The American Spectator impeachment (in all, thirteen have been impeached, and seven convicted...
...In fact, two of these cases have already been overturned: In New York last year, a judge reversed an outrageous evidentiary ruling bitterly criticized by congressional Republicans and even President Clinton...
...The key text is from Article II: "The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors...
...and Walter L. Nixon, Jr...
...it makes little sense to go higher...
...Many of the Constitution's framers saw impeachment as a proceeding by which officers may be removed for political offenses defined, in the words of Alexander Hamilton, as an "abuse or violation of some public trust" or "injuries done immediately to the society itself...
...Without such a definition, impeachment would appear as an act of ad hoc political objection, unconcerned with the proper role and exercise of judicial power, thus offending the purpose and design of the Constitution...
...Prior to the founding, in both England and America, the phrase "high crimes and misdemeanors" was understood to encompass not just criminal conTERRY EASTLAND is editor of the media section of Forbes Digital Tool and a fellow at the Ethics and Public Policy Center...
...In the end, the Senate acquitted Chase, and the Republicans stopped their assault on Federalist jurists...
...The Republicans made their case against Chase by attacking his decisions...
...Obviously, the history of judicial impeachments won't make it easy for DeLay to persuade even members who agree on the need for judicial accountability to shake off the notion that impeachable offenses by judges should be limited to criminal wrongdoing...
...Mindful that judicial decisions could constitute an abuse of power, Hamilton noted that Congress might punish judges for "a series of deliberate usurpations on the authority of the legislature" by "degrading them from their stations" — i.e., impeaching them...
...Chase's defense was that only indictable conduct is impeachable...
...To some Republicans, this doctrine was bound to enlarge the powers of the judiciary at the expense of the elective branches and the states...
...As Yale's Charles Black noted in his Nixon-era book on impeachment, Congress feels "more comfortable when dealing with conduct clearly criminal in the ordinary sense...
...This is especially true in the case of the San Antonio district judge, a Clinton appointee, who has refused to seat two Republicans recently elected to county offices...
...The Republicans saw abuse of power and decided to impeach...
...and in March, the Ninth Circuit reversed the California judge who late last year blocked enforcement of Proposition 209...
...The minority view (held by such framers as Luther Martin) was that impeachment should be reserved only for gross criminal behavior as defined by statute...
...It further irritated the Republicans that, in charging grand juries, Federalist judges delivered political speeches that by today's standards were way out of line...
...At least two removed judges were formally accused of dubious behavior that probably did not violate criminal law...
...DeLay is also from Texas...
...In a typical comment, the Washington Post dismissed the notion of impeaching judges on account of their decisions as "wrongheaded and silly...
...Note again that DeLay has targeted only district judges...
...As Chief Justice William R. Rehnquist points out in his book Grand Inquests (1992), each of the impeachment articles against Chase "charged a departure from existing law in the various rulings he had made" as a trial judge...
...In the 1790's these judges began developing the doctrine of judicial review that the Supreme Court eventually announced in Marbury v. Madison (1803...
...Not incidentally, Chase was impeached for his decisions as a trial judge, not for his work as a Supreme Court justice...
...DeLay even named some targets, all of them district judges...
...Senate Majority Leader Trent Lott, for example, said impeachment should be limited to criminal misconduct...
...They were right about that...
...But the congressman has much more work to do if his idea is ever to be taken seriously...
...He has yet to establish a definition of "judicial activism," the commission of which would justify impeachment...
...The Republicans did not admire the Federalist judges and their domination of the courts...
...Odd, and irresponsible: The courts, too, must be held accountable, even if through extraordinary means...
...These very different understandings of impeachment came to a head after the election of i800 in which the Republicans (led by Thomas Jefferson) routed the Federalists...
...Rehnquist writes that the effect of Chase's acquittal was to secure the independence of judges against congressional oversight that would use impeachment to object to their decisions...
...So far, DeLay's focus on district judges is the only thing careful about his proposal...
...In 1804, on a high after removing theirfirst judge (John Pickering of New Hampshire, an abusive and partisan jurist who also happened to be an alcoholic and was, very likely, insane), House Republicans went after truly big game—Supreme Court Justice Samuel Chase...
...Senator Orrin Hatch has come closest to expressing how Congress ought to think about impeaching a judge on account of his decisions: "You have to have some reasonable grounds for impeachment, and for me, that comes down to whether a judge repeatedly and wantonly ignores the law...
...for perjury (1989)—it's fair to say Congress has adopted Chase's view...
...if his activism goes way beyond the bounds of reasonableness...
...Rather, the central impeachment issue has been: What else besides treason and bribery constitutes an impeachable offense...
...For DeLay to change minds will depend on how carefully he proposes to use impeachment...
...CONSTITUTIONAL OPINIONS by Terry Eastland Impeachment DeLay I n early March House Majority Whip Tom DeLay told the Washington Times that congressional Republicans will try to impeach "activist" federal judges...
...Another problem is that DeLay's three judges made his list on the basis of only one decision each...
...Alcee Hastings for bribery and perjury (1988...
...A more legitimate tack would be to proceed against a judge for "a series" (to borrow from Hamilton) of egregious decisions that can be explained to the country as such...
...duct but misuse of official position and encroachments on or contempt for legislative prerogatives...
...John Marshall, the staunchly Federalist then—chief justice, was not amused: "The present doctrine seems to be that a judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment...
...The Constitution treats impeachment in six different places...
Vol. 30 • June 1997 • No. 6
