Why We Hate To Love Judges

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The key to these riddles is disturbingly clear. Although the Constitution specifically refers to “conviction” after impeachment, constitutional removal from office is not a criminal process, nor is the consequence penal. True, committing a serious offense, like treason, murder, or embezzlement of public money, will certainly subject a judge to the impeachment process. Nonetheless, an impeachable offense does not necessarily break the criminal law, nor is the impeached judge entitled to the safeguards with which the Constitution (at the prompting, it must be said, of the courts) envelops anyone accused of, say, common burglary.

The simple fact is that impeachment is a plastic process, and defining a high crime or misdemeanor lies pretty much at the whim of the House majority and two-thirds of the Senate. One of the nation’s earliest impeachments—the second ever of a judge—made this clear.

Samuel Chase, who as a young lawyer had played a prime role in Maryland’s pre-Revolutionary uproar and had signed the Declaration of Independence, took his seat on the Supreme Court in 1796. In those early days of the judicial system, the Justices rode individual circuits throughout the country, presiding over trials in tandem with local U.S. district judges and also attending to in-state legal business, which included instructing federal grand juries.

As an institution, the grand jury had roots far back in English legal history. It existed not to convict or acquit but merely to detect evidence of criminal activity. Upon being sworn in, the grand jurors received from the presiding judge a “charge” as to their duties. In England and, over time, in the colonies, the judges took the opportunity not merely to educate the jurors but to expand partisan doctrine.

Here Chase stood out. A Federalist in a time of rising Jeffersonian Republicanism, a reactionary conservative in the era of the French Revolution and the political ferment it was engendering even here (as early as 1796 the French government had tried, albeit unsuccessfully, to boost Jefferson into the Presidency), the florid Chase, nicknamed Bacon Face, turned tepid grand jury charges into masterpieces of scalding invective. “The bulk of mankind,” he told a Baltimore grand jury in 1803, “are governed by their passions, and not by reason.” He went on to castigate “the modern doctrine by our late reformers, that all men, in a state of society, are entitled to enjoy equal liberty and equal rights,” a radical principle that had been embedded in the Declaration of Independence.

FEDERAL JUDGES ARE INSULATED FROM THE PUBLIC WHIM—AT A PRICE

Add to Chase’s political impropriety his sarcastic, sardonic personality and bombastic courtroom demeanor, and the urge to remove him became irresistible. An hour after the Senate convicted the hapless, brain-damaged Pickering, the House returned articles of impeachment against Chase. One might well argue that—leaving aside the political aspects of Chase’s conduct—the evidence of his bullying lawyers and improperly interfering with the selection of juries and making consistently biased evidentiary rulings would suffice to demonstrate that he had ceased to manifest the “good behavior” that the Constitution makes a prerequisite for judicial office.

The Constitution, however, prescribes the impeachment process as the sole means for unseating a federal judge. Because both the initiation (the articles of impeachment) and the consummation (conviction) require legislative action, removal necessarily becomes an essentially political proceeding. At the very least, conviction will afford the President, or, in the case of a district judge, a senator, a valuable judicial slot to fill. This tends to cause the participants to view the proceedings through a politically oriented prism.

Chase’s impeachment carried particular political significance. First, removing him would take out a Federalist Justice and give the Republican President, Thomas Jefferson, an opportunity to put in someone more attuned to his decidedly differing views. Second, and even more important, if Chase fell, the next target would be Chief Justice John Marshall himself, author of the recent decision in Marbury v. Madison , which enshrined, if it did not establish, the principle of judicial review.

Jefferson and his followers found intolerable the idea that seven politically isolated and, worse, politically impregnable men could defy the combined judgment of the people’s representatives and their elected leader. If, however, the Justices knew that their judicial conduct might cost them their seats, perhaps they would act more circumspectly.

After a Senate trial whose presiding officer was the lameduck Vice President Aaron Burr (himself under indictment for the death of Alexander Hamilton), with 52 witnesses, including Marshall himself, the Jeffersonians failed to muster the necessary two-thirds majority, and Chase retained his seat. Well might the disappointed President agree that “impeachment is a farce which will not be tried again.”