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Impeaching Judges: Time for a Rethink

Under its power to restrict judges to service during good behavior, Congress can establish a new mechanism for removing lower court judges.
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The change in administrations has ended the fanciful talk of impeaching the president, yet Congress still faces two cases concerning the meat-and-potatoes of American impeachments: removing wayward lower court judges. For those cases, often viewed in Congress as annoying and unimportant, the constitutional process is both cumbersome and unfair to the accused. It should be replaced.

The two potential impeachment cases raise no momentous constitutional issues. They turn on allegations of sordid out-of-court conduct.

A judicial panel recommended the removal of District Judge Thomas Porteous of Louisiana, a 1994 appointee of President Clinton, for actions that range from unwise to felonious. As a federal judge, he allegedly drank and gambled too much, overused his credit cards, and filed a bankruptcy petition under a false name. While a state court judge, he supposedly accepted cash from lawyers who then won valuable court assignments.

The House Judiciary Committee is conducting an inquiry of whether he should be impeached.
District Judge Samuel Kent of Texas, appointed by the first President Bush in 1990, pled guilty last month to obstruction of justice when he denied crude acts of sexual harassment -- such as forcing a woman employee's head towards his nether regions for the purpose of "contact." Kent announced his retirement, but his lawyer said that because of a medical disability, the now ex-judge would remain on the federal payroll for life.

Not so fast, countered Rep. James Sensenbrenner of Wisconsin, warning that the House would impeach Kent to defeat the ploy, and that the process would be expensive.

Expense is not the largest problem with using impeachments to police the conduct of more than 1,000 lower court judges. The process makes unwelcome demands on congressmen and senators, most of whom respond by learning little about the cases. Their poorly-informed votes cheapen the Constitution and deny a fair hearing to the accused. We can do better.

Improving judicial impeachments would not tamper with any "genius" of the Framers of the Constitution. When they adopted the impeachment clauses in 1787, the delegates to the Constitutional Convention were thinking about removing the president, his advisers, or Supreme Court justices. They never even discussed impeaching lower court judges.

Their inattention left a contradiction. Article III states that judges serve during "good behavior," yet they can be impeached only for "high crimes and misdemeanors." Because "high crimes and misdemeanors" is plainly narrower than good behavior, the good behavior standard becomes irrelevant in any judicial impeachment.

By making it hard to remove a federal judge, impeachment theoretically supports the Framers' goal of an independent judiciary that can check excesses of Congress and the president. In practice, that independence is undermined by the offhand manner in which most congressmen and senators approach judicial impeachments.

Congress is well-qualified to make the essentially political determination whether to remove great officers of government. Not so when it comes to adjudicating guilt in the factual contests presented in the eleven impeachments of lower court judges that have gone through Senate trial. Few congressmen and senators care much for rules of evidence or burdens of proof.

When the case involves a lower court judge, congressional interest can approach the vanishing point. The Senate now shunts judicial impeachment trials off to committees of twelve, ensuring that eighty-eight senators never hear any witnesses. Many rely on verbal briefings or memoranda from staff members.

Rather than protect judicial independence, the current system likely supports the trend toward convicting judges. The first eight times a lower court judge went through a Senate trial, three won acquittals. The implementation of "trial by committee" in the 1980s brought three straight convictions, no acquittals.

The Constitution allows other approaches. Under its power to restrict judges to service during good behavior, Congress can establish a new mechanism for removing lower court judges. To protect judicial independence, that procedure should afford exacting procedural fairness and impartial decision makers (almost certainly not current colleagues on the bench).

Otherwise, Congress will continue to do a poor job of performing a critical constitutional function.

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