The following language from the House Report accompanying the Judge Walter L. Nixon, Jr., and Samuel B. Kent Articles of Impeachment aptly sets out the core principles underlying and justifying Impeachment:
The [House’s] role is not to punish, but simply to determine whether articles of impeachment should be brought. Under our Constitution, the American people must look to the Congress to protect them from persons unfit to hold high office because of serious misconduct that has violated the public trust. Where the evidence overwhelmingly establishes that a Federal judge has committed impeachable offenses, our duty requires us to bring articles of impeachment and to try him before the United States Senate. (H.R. Rep. No. 111-427, “Impeachment of Judge G. Thomas Porteous, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 1031,” 111th Cong., 2d Sess. (2010)).
The greatest obstacle to the impeachment of a federal judge is not procedural. It is political.
THE CREATION OF A FEDERAL JUDGE
A. The Creation Process
Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. The names of potential nominees are often recommended by senators or sometimes by members of the House who are of the President's political party. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. Article III of the Constitution states that these judicial officers are appointed for a life term.
B. The Number of Federal Judges
In addition to the U.S. Supreme Court, there are 13 U.S. courts of appeal and 94 U.S. district courts.
The number of federal judicial positions is set by the United States Congress, which authorizes a set number of judge positions for each level of the courts and makes adjustments as necessary.
The U.S. Supreme Court has 9 justices, as set by the Judiciary Act of 1869. The U.S. courts of appeal have 179 authorized judgeships. The U.S. district courts have 677 authorized judgeships. As of November 10, 2021, there were 77 total vacancies in the federal judiciary and 26 total nominees pending.
C. The Number of Federal Judges Who Have Been Impeached
The House has impeached 19 individuals: 15 federal judges, one Senator, one Cabinet member, and two Presidents. The Senate has conducted 16 full impeachment trials. Of these, eight individuals – all federal judges – were convicted by the Senate. (John Pickering (1804); West H. Humphreys (1862); Robert W. Archbald (1913); Halsted Ritter (1936); Harry E. Claiborne (1986); Alcee Hastings (1989); Walter L. Nixon, Jr. (1989); G. Thomas Porteous (2010)). (Report of the Impeachment Trial Committee on the Articles Against Judge G. Thomas Porteous, Jr. 1 n.1, S. Rept. 111-347 (2010)).
In sum, since 1803, the House of Representatives has impeached only 15 judges and only 8 of those impeachments were followed by convictions in the Senate. Justice Samuel Chase is the only Supreme Court Justice the House has impeached, and in 1805 the Senate acquitted Chase.
POTENTIAL OBSTACLES TO THE IMPEACHMENT OF FEDERAL JUDGES
A. Obstacle No. 1: Decades of Disinformation
Decades of disinformation about the public’s ability to hold federal judges accountable for their actions halted the impeachment process. “The general population doesn't know what's happening, and it doesn't even know that it doesn't know,” to quote Noam Chomsky. This lack of awareness must change.
Article II, Section 4 of the Constitution states the grounds for impeachment are limited to “Treason, Bribery, or other high Crimes and Misdemeanors.” While treason and bribery are relatively well-defined terms, the meaning of “high Crimes and Misdemeanors” is not defined in the Constitution or in statute. Until recently, the public was intentionally misled to believe that “high Crimes and Misdemeanors” means impeachment is limited to criminal acts.
The committee report accompanying the 1989 Resolution to Impeach United States District Court Judge Walter L. Nixon summarized the British precedents for impeachment, the events at the Constitutional convention leading to the adoption of the “high crimes and misdemeanors” formulation for impeachable conduct, and the interpretation of that term in the 12 judicial impeachments that had occurred prior to 1989. In its summary of the historical meaning of the term, the report noted:
The House and Senate have both interpreted the phrase broadly, finding that impeachable offenses need not be limited to criminal conduct. Congress has repeatedly defined “other high crimes and misdemeanors” to be serious violations of the public trust, not necessarily indictable offenses under criminal laws. (H.R. Rep. No. 101-36, Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 87, 101st Cong., 1st Sess. (1989) [hereinafter “Walter Nixon Impeachment Report”] at 5 (1989)).
In applying these concepts to the conduct of a judge, the Walter Nixon Impeachment Report further stressed that the term “misdemeanor” as used in the Constitution was not intended to denote a minor criminal offense, but rather focused on the behavior of the judge, that is, whether the judge “misdemean[ed]” and thus should be removed:
Indeed, when the phrase “high crimes and misdemeanors” first appeared during the impeachment of the Earl of Suffolk in 1386, the term “misdemeanor” did not denote a violation of criminal law. In the context of impeachment, the word focuses on the behavior of a public official, i.e., his demeanor. Gouverneur Morris, a member of the Committee on Style and Revision of the Constitutional Convention and one of the founding fathers responsible for the final revisions to the Constitution, explained the use of the term “Misdemeanor”: “[T]he judges shall hold their offices so long as they demean themselves well, but if they shall misdemean, if they shall, on impeachment, be convicted of misdemeanor, they shall be removed.” (Walter Nixon Impeachment Report at 5).
The Walter Nixon Impeachment Report concluded:
Thus, from an historical perspective the question of what conduct by a Federal judge constitutes an impeachable offense has evolved to the position where the focus is now on public confidence in the integrity and impartiality of the judiciary. When a judge's conduct calls into questions his or her integrity or impartiality, Congress must consider whether impeachment and removal of the judge from office is necessary to protect the integrity of the judicial branch and uphold the public trust.
B. Obstacle No. 2: The Bureaucratic Morass
America has allowed the self-proclaimed elite to corrupt its values. Corporate money saturates U.S. elections. Lobbyists draft U.S. legislation. The U.S. federal judicial system protects the corporations. The U.S. plutocracy has created an integration of powers. The executive, legislative and judicial branches have blended into one bureaucratic morass. The proliferation of corruption in each of the three branches has something in common: each is the result of ego, greed, lack of transparency, and lack of accountability.
In response to President Trump calling a judge who ruled against him an “Obama judge,” Chief Justice John G. Roberts Jr. publicly declared “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” This declaration by Roberts is nonsensical.
The president, the members of congress, and the federal judges (who are nominated by the president and confirmed by the senate) are all products of the same political system. It’s irrational to believe that federal judges, who are born out of a political process, do not have partisan affiliations.
Republican Presidents tend to nominate conservative judges who exercise a shared philosophy of judicial restraint by following our laws as written. Democratic Presidents tend to nominate liberal judicial activists who legislate from the bench and “shape the law.” Democratic federal judges believe in a “living Constitution,” which can be interpreted to mean whatever they want it to mean without being formally amended. Senator Sheldon Whitehouse (D-RI) argues that the Federalist Society chooses, grooms, ensures the nomination, and finances the confirmation of Republican, ultra-conservative federal judges who represent corporate America, not the American people. While this may be true, Senator Whitehouse fails to point out that Democratic Presidents do the same. President Biden nominates federal judges based on their political philosophy, ethnicity, and gender. The difference being that the republicans are better financed, more focused, and better organized than the democrats. Regrettably, neither Republican nor Democratic Presidents nominate the best and brightest to the federal bench.
Associate Justice Amy Coney Barrett, who has been described as a “kind of Manchurian candidate,” announced during an event at the University of Louisville’s McConnell Center, named for Senator Mitch McConnell, in Louisville, Kentucky on September 12, 2021, “This Court is not comprised of a bunch of partisan hacks.” The public does not believe Amy.
The process to sit a new federal judge has become so blatantly obvious that the public believes federal judges are merely politicians in black robes who have partisan agendas. New data from the polling firm Selzer shows a broad majority of Americans – more than 60% – believes the U.S. Supreme Court bases its decisions more on the justices’ political views than on the Constitution and law.
We can no longer continue to allow partisan politics to undermine our respect for, and the legitimacy of, the judicial branch of government.
C. Obstacle No. 3: The Federal Judiciary
In order to appreciate why the federal judiciary is a potential obstacle to impeachment, it is instructive to understand the following relationships.
The Relationship Among Federal Judges
In February 2017, Judge Neil Gorsuch made the following comment to Nebraska Republican Senator Ben Sasse in response to President Trump‘s anti-judiciary attacks: “Any attack on brothers and sisters of the robe is an attack on all judges.”
I appreciate Associate Justice Gorsuch’s candor. It is clear that a federal judge, who desires to maintain the prestige of the bench and does not want to alienate his colleagues, would: (a) never consider initiating an impeachment proceeding against a fellow brother or sister of the robe; and (b) consider any impeachment proceeding initiated against a fellow brother or sister of the robe from an outside party to be an attack on all judges.
The Relationship Between Federal Judges and Attorneys
Former State Judge Ronald Bodenheimer testified that when he was first elected, Judge Porteous gave him pointers on being a judge. Bodenheimer testified that Judge Porteous told him: “Congratulations kid, you know. Now, let me tell you, give you some pointers about being a judge. Number one, you'll never be known as Ronnie again. You'll be judge for the rest of your life. Number two, you'll never have to buy lunch again OK. There will always be somebody to take you to lunch. And number three, always wash your rear end so the attorneys have a clean place to kiss.” (H. Rept. 111-427 – Impeachment of G. Thomas Porteous, Jr., Judge of the United States District Court For the Eastern District of Louisiana at 27/158 and 28/158 (2010)).
Regrettably, Porteous gave Bodenheimer sound advice on being a judge. Many, not all, federal judges without any regard to even the appearance of impropriety allow attorneys to buy them lunch. Most, if not all, attorneys show an obsequious or sycophantic eagerness to please federal judges. In other words, the vast majority of attorneys would consider their initiation of an impeachment proceeding against a federal judge to be professional suicide.
HOW TO OVERCOME OBSTACLES TO THE IMPEACHMENT OF FEDERAL JUDGES
Employ a Micro, Not Macro, Approach
A micro, not macro, approach is required to hold federal judges accountable. Rome wasn’t built in a day. Similarly, our federal judicial system will not be repaired overnight. The Federalist Society will not be dismantled overnight. The solution rests in the public holding one federal judge accountable at a time.
The American people do not need a Presidential Commission to consider reforms to the Supreme Court. Congress does not need to pass new legislation. The following types of macro attempts at reining in bad behavior by federal judges have failed and will continue to fail.
(a) Term Limits: Term limits are not the answer because term limits will not change a judge’s behavior. It may actually exacerbate bad behavior because some judges will be looking forward to entering the revolving door;
(b) The Judicial Transparency and Ethics Enhancement Act of 2017: This bill, which was sponsored by Senator Chuck Grassley, proposed to amend the federal judicial code to establish the Office of Inspector General for the Judicial Branch to investigate alleged misconduct in the judicial branch, including the Supreme Court;
(c) The Courthouse Ethics and Transparency Act: Senator John Cornyn (R-TX), a sponsor of the bill, said “This legislation would subject federal judges to the same disclosure requirements of other federal officials so we can be sure litigants are protected from conflicts of interest and cases are decided fairly;” and
(d) The 21st Century Courts Act: Rep. Jerrold Nadler (D-NY) is a sponsor of this bill which attempts to target federal judges and their stock trades and would likely call for sanctions for judges who have recusal violations.
Since 1803, the House of Representatives has impeached only 15 federal judges. This equates to impeaching one federal judge approximately every 15 years. If the American people are to hold their federal judges accountable, this ratio should be reversed. If 15 judges were impeached every year, federal judges would think twice about their behavior.
As noted above, there are a total of 865 authorized judgeships in the U.S. Supreme Court, the U.S. courts of appeal, and the U.S. district courts. Impeaching 15 federal judges per year would result in the impeachment of merely 1.7% of federal judges per year.
Historically, the impeachment process has been initiated as the result of petitions and materials related to the conduct of a federal judge being directly submitted to the House of Representatives from citizens.
Now, more than at any time in history, it is the responsibility of citizens, working closely with knowledgeable and motivated U.S. Representatives, to hold our federal judiciary accountable by patiently impeaching and removing one rotten judicial apple at a time.
U.S. Supreme Court justices and federal judges, with life tenure, are accountable to nobody and they know it. Thomas Paine was correct. “A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”
The American public may have lost faith in the federal judicial system but it cannot lose hope. There are federal judges and U.S. Representatives who put their country before politics. Find them.