Not everything in the Constitution works as it should. Federal District Judge G. Thomas Porteous, Jr., of New Orleans is learning, and the Senate will soon be reminded, that the removal of lower court judges by impeachment fails all the participants in the process.
The House of Representatives unanimously adopted four impeachment articles against Porteous last Thursday. The articles include allegations that he took money from lawyers with cases before him when he was a state court judge, and that he made false statements and flouted court orders during his personal bankruptcy case.
Now the Senate will try him. That is, a committee of twelve senators will hear the evidence. The other eighty-eight senators will do little more than vote on whether to remove Porteous from office.
The arrangement is a bad one.
For the Senate, the impeachment trial is an unwelcome distraction. Facing huge, complex issues like health reform, climate change legislation, and financial regulation, the impeachment forces senators to resolve what seems like a personnel problem in the judiciary.
But the distraction will be a serious one only for the twelve senators hearing the evidence. Most of the other eighty-eight will devote minimal effort to learn the facts or the legal issues. That difference in effort will make a difference in the voting.
In the last two judicial impeachments, senators on the trial committees supported acquittal at a significantly higher rate than did the other senators. In the case I defended in 1989, involving Judge Walter Nixon, one impeachment article did not command a two-thirds majority of the committee members, but was easily approved by the full Senate. The same pattern applied in the Senate trial of Judge (now Congressman) Alcee Hastings.
Not having heard any witnesses, the uninformed eighty-eight vote largely on the basis of a simple calculation: There is zero political risk in convicting a judge who is already in trouble. There be no attack video accusing the senator of being too tough on dirty judges.
That means that Porteous should not get his hopes up. It may look like a fair trial in the Senate, but it won't be, not when seven-eighths of his jury will vote largely on political grounds, blind to any weaknesses in the accusations.
But judicial impeachments are not only distracting to (part of) the Senate and unfair to the accused judge. They also cheat the public interests they are supposed to defend.
They take an intolerable amount of time. The House review of Porteous began seventeen months ago, and came on the heels of a lengthy inquiry by the Fifth Circuit Court of Appeals. Now the Senate trial will take more months. If the judge does not belong on the bench, he should have been removed long ago.
The impeachment process also fails to protect the independence of the judiciary, which is the reason for having it. To shield federal judges from partisan political winds, the Constitution guarantees them life tenure.
To reinforce that guarantee, judges can be removed from office only by impeachment, which is supposed to provide a slow, careful, and majestic process for a clash between the great branches of government. When removing presidents and Supreme Court justices, the process resembles that original design. As I described in my book about the first presidential impeachment, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy, such proceedings command the attention of the Senate and the nation.
But for the removal of lower court judges, impeachment becomes fitful, inattentive, and trivializing. Once in the maw of the process, the judge can be certain he will lose his job. The distracted seven-eighths of the Senate will vote to convict.
We need a process for removing lower-court judges that is independent, fair, and reliable. Impeachment has none of those qualities.