On March 11, House Majority Whip Tom DeLay announced that the GOP will consider using impeachment to check the excessive power of activist federal judges. Activist judges take statutes and the Constitution, laws enacted by the only legitimate lawmakers, and re-make them by giving them new and changing meanings. Judicial activism, then, is literally the exercise of power judges do not legitimately possess.
Democrats and their leftist interest group allies have made the unusual claim that public officials cannot be impeached for acts they could not be indicated and prosecuted for in a court of law. They also claim, in a variation on that theme, that judges cannot be impeached for anything they do as judges. Consider the implications of this novel theory. Judges would be free to re-write statutes and the Constitution at will, compromising self-government and democracy, undercutting liberty, and throwing our constitutional system of separation of powers completely out balance. Judges could run the country so long as they did not violate some statute. This claim is patently false, contradicted by 600 years of legal history, the Constitution’s framers and ratifiers, and American political history.
The Constitution allows impeachment of public officials for "high crimes and misdemeanors." Yanking this phrase from its constitutional moorings and giving it a desired modern meaning would be the same interpretive sin as the activist judges who are today undermining the Constitution. The legal and historical evidence contradicts the modern theory that impeachable acts are limited to indictable acts or that judges cannot be impeached for their judicial behavior.
First, as Professor Raoul Berger writes, "impeachment itself was conceived because the objects of impeachment, for one reason or another, were beyond the reach of ordinary criminal redress." Impeachment, by definition, is a tool for removing public officials for non-indictable offenses.
Second, impeachment for "high crimes and misdemeanors" already had a 400-year history in English common law before America’s founding fathers put that phrase in the U.S. Constitution. Judges have been impeached at least since 1388, often for their judicial decisions and actions. John Feerick examined more than 100 impeachments of English judges and found that 75% were for "high crimes and misdemeanors" that included "grave misuse of one's official position."
Blackstone argued that "mal-administration" by public officials was impeachable. His successor counted among impeachable offenses when "judges mislead their sovereign by unconstitutional opinions." English judges were impeached for extrajudicial opinions and misinterpreting the law. Professor Berger's examples include impeachment for "abuse of official power" and "encroachment on or contempt of Parliament's prerogatives."
Third, the American system of written law rests on the foundation of English common law. The common view during the convention that drafted the Constitution was that the category of impeachable acts is considerably larger than the category of indictable acts. The single proposal limiting impeachments to a narrow category of crimes met immediate opposition. James Madison thought George Mason's suggestion of including "mal-administration" among impeachable offenses was too vague and they settled instead on the familiar "high crimes and misdemeanor" language. Both Mason and Madison, however, believed this phrase would include such things as attempts to subvert the Constitution.
Fourth, scholars have long agreed that impeachable acts are not limited to indictable acts. One commentator wrote in 1916 that "the word `misdemeanor' was used to negate the thought that only `crimes' were impeachable." Another concluded in 1937 that "it is settled that the stipulated grounds for impeachment...include more than the indictable offenses technically covered by these classifications." A 1973 analysis found "an intent on the part of the framers to include non-criminal misconduct within the catalog of impeachable offenses." Professor Michael Gerhardt concluded last year that impeachable offenses are not limited to indictable offenses and that "the critical element of injury in an impeachable offense was injury to the state."
Fifth, American impeachments have nearly all involved non-indictable offenses. Thirteen of the 16 officials impeached since America's founding have been judges; all seven convicted by the Senate and removed from office have been judges.
John Pickering was impeached in 1803 for, among other things, errors in his conduct of a case. His "high crimes and misdemeanors" included ignoring the requirements of an act of Congress. During the debate over impeachment of Judge James Peck in 1830, Representative (later President) Buchanan argued that usurpation of authority was an impeachable offense.
None of the articles on which the House impeached Judge Robert Archbald in 1912 constituted an indictable offense. The House manager of the Archbald case argued that impeachable acts by judges included usurpation of power and "the entering and enforcement of orders beyond his jurisdiction." When the Senate convicted and removed Judge Halsted Ritter in 1936, several Senators said that a judge could be impeached for conduct that undermines confidence in the courts.
In The Federalist No.78, Alexander Hamilton wrote that judges can exercise judgment, but cannot exercise will. The evidence from English and American legal and political history shows that many actions for which judges have long been impeached fit within this framework. Judges may be impeached for actions that usurp authority, invade the prerogatives of the legislature, exceed their proper jurisdiction, unconstitutional opinions, misinterpretation of law, and subverting the Constitution.
All of these are also features of today's judicial activism. These acts go beyond mere mistakes of judgment; rather they involve a willful disregard of a judge's proper role and authority and an attempt to exercise power he does not legitimately possess.
The House must decide which individual cases meet these standards. They should not be deterred, however, by the chorus singing this strange tune that judges may not be impeached for non-indictable judicial behavior. In the long run, impeaching judges who refuse to stay within their proper role and try to usurp the prerogatives of the legislature may be the only way to keep the American system in balance.
If you have any questions or would like more information about judicial activism, please contact us at Judges@fcref.org.