Should Judge Walker be Impeached?

It's something that should be discussed, and is being discussed--and about time. It is the envisaged method for removing those leaders who abuse their power.

Yesterday, Professor Carson Holloway, Associate Professor of Political Science at the University of Nebraska at Omaha, addressed the issue in "Giving Judges the Boot." Excerpts:

"Recent events remind us of the ongoing problem of anti-democratic and anti-constitutional judicial activism. Last month a federal district court judge in Massachusetts struck down portions of the Defense of Marriage Act. Last week, another federal judge struck down California’s recently enacted constitutional amendment defining marriage as a union between one man and one woman. Both cases involve the invalidation of democratically enacted laws on the basis of arguments that turn constitutional provisions to purposes that no one could plausibly contend were entertained by their framers or ratifiers. To this extent, such rulings are properly understood as attacks on democratic self-government and the rule of law….

Impeachment will place the argument against activist decisions on its proper footing—presenting them not as mere errors, but as illegitimate usurpations of power lodged elsewhere, as incompatible with the preservation of democratic self-government and the rule of law.

Such a proposal will, of course, provoke a chorus of outraged objection from the American left, which has won so many of its policy victories through the promiscuous use of judicial activism. It will be said that the use of impeachment constitutes an attack on the independence of the judiciary, and hence an attack on the constitution itself, insofar as judicial independence is a key constitutional principle. Such an argument, however, mistakenly elevates a mere institutional means to the status of a constitutional end…."

The founders were practical men who sought the most effective ways to secure lawful self-government. Accordingly, they frequently appealed to the lessons of experience. In our time, experience shows that the independence of judges, which was designed to protect the constitution as a rule of law, has been abused to the extent that it is now a threat to the constitution as a rule of law. The institutional means has, in practice, become hostile to the constitutional end for which it was devised, and such a situation demands some corrective action. Fortunately, the constitution itself provides for such a corrective in the form of impeachment and removal of judges from office."

The American Bar Association’s “Impeachment Resources” webpage describes the process in the form of question and answer. Excerpts:

Q. How does the impeachment process reflect the role of checks and balances in our constitutional system?

A. In essence, impeachment reflects a check by the legislative branch on the executive and judicial branches. It provides a way for this branch to deal with serious misconduct by judges and by both elected and nonelected members of the executive branch.

Q. What are the grounds for impeachment?

A. As noted above, the Constitution specifies that high government officials may be impeached for "treason, bribery, or other high crimes and misdemeanors." What precisely constitutes "high crimes and misdemeanors" is, however, uncertain because the courts have not specifically defined or interpreted the term, unlike other constitutional clauses. Treason and bribery are very serious offenses against the state, and most experts agree that offenses encompassed within "high crimes and misdemeanors" are similarly serious. ("Misdemeanors" is a constitutional term that does not have the current meaning of an offense less serious than a felony.)

There is historical precedent dealing with impeachable conduct. For example, in 1974 the House Judiciary Committee rejected articles of impeachment against President Nixon for the secret bombings in Cambodia, which were viewed as being within executive prerogative as commander in chief, and for personal income tax irregularities, which were viewed as too personal to warrant impeachment. (The articles approved by the House Judiciary Committee related to criminal actions during the cover-up of the Watergate break-in; as noted above, Nixon resigned before the full House voted on the articles).

Also, many experts agree that there are different standards for impeachable and criminal conduct. In the words of Dean John D. Feerick of Fordham University School of Law, in an article published in 1984, "Most authorities agree--and the precedents are in accord--that an impeachable offense is not limited to conduct which is indictable. Conduct that undermines the integrity of a public office or is in disregard of constitutional duties or involves abuse of power is generally regarded as grounds for impeachment. Since impeachment is a drastic sanction, the misconduct must be substantial and serious."

It is difficult to think of anything more "subsatntial and serious" than Judge Walker's denial of the citizens their right to self-government.

Q. How is impeachment different from the criminal and civil processes?

A. The criminal process involves personal misconduct and imposes penalties to vindicate the interests of society. The civil process involves personal fault and imposes liability to compensate individual victims.

The impeachment process is different from either of these. While it has elements of the criminal process, it is also a 'political' process in that it is designed to deal with misconduct by high public officers. In the words of professor Jeff Atkinson of DePaul Law School, impeachment is designed 'to protect our country and our Constitution from leadership that has become a danger to the country. Phrases used by the framers of the Constitution include 'corruption,' 'abuse of power,' 'subversion of the Constitution,' and 'neglect of duty.'' In keeping with this purpose, the process and remedy are also 'political.' Our elected representatives in Congress sit in judgment, and, if convicted, the offender is removed from office and not permitted to hold office again.