Why We Hate To Love Judges

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Jefferson got it half right. Chase’s impeachment was deadly serious, but at least where a judge is the target, the process has been limited only to allegations of misconduct approaching, if not attaining, criminality. Dissatisfaction with a judge’s judicial performance, however intense the disapproval or distasteful the judge’s action, does not open the exit door. The Framers deliberately rejected a tenure test of “maladministration” because, as the distinguished scholar of impeachments Raoul Berger has said, the judge would then be sitting at the pleasure of the legislature. Yet the then Congressman Gerald R. Ford was correct when, in arguing unsuccessfully for the impeachment of Justice William O. Douglas, he observed that the criteria for tenure in office rest in the discretion of a majority of the House combined with two thirds of the Senate. (It is one of history’s diverting ironies that when Douglas finally retired, Ford, by then President, named his successor.)

This is the sort of undefined, perhaps undefinable, delicate balance on which our constitutional form of government depends. In theory, Ford’s observation could presage the dismissal of any judge or justice, or, for that matter, any President. Yet as the late professor Austin W. Scott used to say when a student posed a far-fetched hypothetical situation, “You’ve conceived it, so it’s conceivable, but otherwise, it’s inconceivable.”

The legacy of the Chase affair illustrates two points about the place of judges in our national consciousness. First, despite our impatience or even anger at the way the judiciary conducts the public business, we generally regard the judicial framework as an apparatus too fragile to withstand the political wear and tear we expect, indeed encourage, in the elected branches. Second, we do not like our judges to adopt any overt political stance. When sitting judges have undertaken extrajudicial assignments, they and the judiciary have almost always paid a political price. Our first Chief Justice, John Jay, went to England at President Washington’s request to negotiate a treaty. Jay, whose early career had involved extensive successful diplomacy, brought home an agreement that, whatever its intrinsic merits, won him broad personal disapprobation.

In our own time, Supreme Court Justice Robert H. Jackson took over the prosecutor’s role at the Nuremberg War Crimes Trials, and Chief Justice Earl Warren chaired the commission that came to bear his name, collecting the evidence on President John F. Kennedy’s assassination. Neither of these undertakings fits properly with the American concept of the judicial function. Jackson, particularly, found himself occupying antithetical public roles, as both judge, albeit a judge on leave, and prosecutor. And, of course, the part the Court played in the 2000 election, whatever one’s view of the outcome, subjected it to stinging accusations of playing politics.

IT IS THE HUMAN WITHIN THE CLOAK WHO MATTERS—AS REHNQUIST SHOWS.

It is not that we do not wish our judges to have political awareness. After all, most state judges must run for re-election. Moreover, at the highest appellate level, many decisions are overtly political: Think only of Baker v. Carr (one person, one vote) and Brown v. Board of Education (school desegregation). It has been a truism since the nineteenth century that as Tocqueville noted, in America every political issue turns sooner or later into a legal question. Nevertheless, we feel uncomfortable when a court seems to be slipping into a legislative or electoral role.

Of course, judges occasionally turn overtly into nonjudicial politicians. Thus we tolerate the suggestion that one or another Supreme Court Justice might make a good presidential or vice-presidential candidate, as, for example, with Justice Douglas in 1944, 1948, and 1952.

Our model for judges who feel nonjudicial elective stirrings is Charles Evans Hughes. Despite a brilliant early career on the Supreme Court, he resigned in 1916 to accept the Republican presidential nomination. “I at once resigned from the Court,” Hughes later wrote, “telegraphed my acceptance, and plunged into the campaign.” But 15 years later, after losing that race, resuming a successful legal career, and serving as Secretary of State, he returned to the Court, this time as Chief Justice.

An earlier Chief, Marshall, had also been Secretary of State. Indeed, he had retained the post after joining the Court and participated in the selection of the inaccurately but indelibly described “midnight judges,” those Federalist judicial appointments President John Adams made just before his term expired. Curiously, Adams’s successor, Jefferson, who possessed an unlimited capacity for defaming Marshall, never raised the issue and in fact asked the Chief Justice and ex-Secretary of State to administer his presidential oath of office.