Why We Hate To Love Judges

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Judges, even those in very high places, exhibit a sensitivity to the opinions of people with whom they associate. In 1928 Chief Justice Taft wrote the Supreme Court’s opinion in Olmstead v. United States , which for the first time approved the introduction of wiretap evidence, in this instance against the mastermind of one of America’s most sophisticated bootlegging operations. Looking forward to the fiftieth reunion of his Yale class of 1878, Taft worried that his classmates would shun him. His concern proceeded not from a fear that the Old Blues would, like Justice Holmes in his dissent, damn wiretapping as “dirty business” or that they would, like Justice Brandeis, decry electric eavesdroppers as “men of zeal, well-meaning but without understanding.” No, Taft fretted about the friends of his youth because they were the sort of people who patronized bootleggers. Happily, nostalgia trumped resentment. The Bulldog Blues of ‘78 gave “Big Bill” the welcome he craved.

However harsh and physically threatening the treatment of a federal judge, it does not imperil or even jeopardize the judge’s position. Johnson and Garrity, like all judges appointed under Article III of the United States Constitution, held lifelong appointments, tenable so long as they behaved properly.

The idea that a judge should lose office only for improper personal conduct, and not for having displeased the sovereign, even the sovereign people, is a concept as American as the Declaration of Independence. One of the accusations against King George III was that he made judges dependent on his pleasure, whereas British judges had previously held their seats since 1701 “during good behaviour.” The Framers of the Constitution wished to shield the federal judiciary from the sovereign’s whims.

WE WANT OUR JUDGES IMPARTIAL, YET ALSO SENSITIVE TO OUR DESIRES.

Insulating judges this way comes, as does everything in a body politic, at a price. Tell a judge that only gross misbehavior will bring about forfeiture of the office and you run the risk of encouraging petty tyranny. For better or, as some constitutional scholars think, worse, we have settled on conviction after impeachment as the only way to remove a federal judge. Conceivably, perhaps even plausibly, one could argue that if “good behavior” is the litmus for remaining a judge, the federal courts, which are charged with interpreting the Constitution’s language, retain implicit power to determine whether a given individual has passed beyond the behavioral pale. This would provide a handy, fair, and efficient way to rid the system of people who, in the common phrase, no longer deserve to wear the robe.

The impeachment-and-conviction process, by contrast, is cumbersome, requiring not only a favorable (or, rather, an unfavorable) vote in the House of Representatives but concurrence of two-thirds of the Senate, not just a simple majority. It is hardly a coincidence that only 13 judges have ever faced the impeachment process; of these, the Senate convicted only 7. Among these men (no woman judge having yet undergone this ordeal) was the district judge John Pickering of New Hampshire, in 1804, whose senility once saw him rising, as was then the custom, to charge the jury and, losing his thought, turning to lead the startled jurors in prayer. After “Amen,” still oblivious, he serenely ordered a recess.

In those days, before Congress had established a retirement program for federal judges, impeachment was the sole available means of removing a judge found physically or, as in Pickering’s case, mentally unfit to discharge his duties. Indeed, even thereafter such gross misconduct as renouncing allegiance to the United States itself or conviction of a serious crime will not, of its own force, suffice to evict a judge.

At the outbreak of the Civil War, West H. Humphreys, a United States district judge in Tennessee since 1853, not only wrote and spoke publicly in favor of secession but actually undertook to serve as a judge for the Confederacy. Although he abandoned his former courthouse, he did not surrender his commission. Not until 1862, after impeachment in the House and conviction in the Senate, did Humphreys cease his double officeholding.

In a more egregious recent case, Judge Walter Nixon, of the Southern District of Mississippi, who was indicted, tried, and convicted of perjury in 1989, refused to resign even after his prison term commenced. In fact, Nixon continued to draw his judicial salary until the Senate ultimately convicted him—three years after the jury had.

As recent nonjudicial history reminds us, the constitutional standard for removal from office is conduct amounting to “high crimes and misdemeanors.” No one, however, has ever been able to define the phrase precisely. It seems reasonably certain that high modifies both crimes and misdemeanors , but problems arise in the subsidiary definitions. By high crimes the Founders obviously meant something more weighty than a mere municipal infraction. Where, then, is the line between the ordinary and the high crime? Misdemeanors , on the other hand, must have some connotation beyond the present-day notion of a minor criminal offense. To the modern ear, in fact, a high misdemeanor makes no sense, because a misdemeanor is by definition a low-level violation. Does the word-chopping have even less meaning when the subject is judicial deportment?