Impeachment gets senators and members of the house on the record, but that’s about it. The likelihood of a judge being removed via the impeachment route is zero. I’ve written a couple of posts about this, including a new one I did this morning which offers a solution other than impeachment to dismiss partisan judges, check it out if you’re interested and let me know your thoughts.
I came across the idea to remove judges from attorney Andrew Branca. Branca believes that federal judges can be removed from office for failing to serve during “good behavior,” as outlined in Article III, Section 1 of the U.S. Constitution. He argues that this clause provides an independent standard for removal, distinct from impeachment for “high crimes and misdemeanors.” Branca asserts that this lower standard could allow removal through mechanisms such as a simple majority vote in Congress, rather than requiring the more stringent impeachment process of 2/3 approval in the Senate.
Certainly the Congress has the power to make, unmake, and remake the inferior courts within the Article III Judiciary.
That was a point Newt Gingrich made in highlighting the Judiciary Act of 1802, which was Jefferson’s means of resolving a series of “midnight appointments” made by outgoing President John Adams after the contentious election of 1800.
However, while judicial reform is a power of Congress, arbitrary sanction without a process of some sort—without a trial in either a criminal court or the Senate as the court of impeachments—is quite likely to be an unconstitutional Bill of Attainder, which Article 1 Section 9 explicitly denies the Congress.
The Congress could not, therefore, pass a law that said Judge Boasberg was guilty of ethical violations, had failed in his duty of “good behavior”, and was therefore to be removed from the bench. Any act of government which is punitive in nature must be predicated by due process, wherein the accused is to have full rights of the defense, including the opportunity to confront any and all witnesses against him.
When it comes to sanctioning miscreant judges for political and partisan rulings, all roads lead to an impeachment trial as the venue in which to make the case for the judge’s removal.
An interesting argument, but unfortunately too clever by half.
Yes, judges can be removed for ethical violations. However, establishing that an ethical breach warrants removal requires an impeachment trial. Any other litigation process would have to be heard by the judiciary, and that would itself present an unworkable conflict of interest for the judiciary.
It is worth noting that the last judge successfully impeached and removed from the federal bench, G. Thomas Porteous, was convicted in his impeachment trial of bribery and perjury, statutory criminal offenses. There would have been no need for an impeachment if a simple criminal prosecution would suffice--yet the choice was to impeach. (Ultimately, Porteous settled the criminal charges against him by accepting disbarment, thus ending his legal career).
This was one of the reasons Alexander Hamilton championed the Senate as the court of impeachments in Federalist 66.
Impeachment by the house, trial by the senate and removal upon conviction was the remedy that the founding fathers intended for renegade public officials.
While the impeachment in the House was intended to be a political proceeding, trial in the Senate was intended to be a much more fair and unbiased process.
Then came the 17th Amendment. Because senators now pander to voters and donors, Senate trials have become as political as House impeachments. The process is now so infected with politics that unless one party makes up at least 2/3’s of the Senate or there is overwhelming evidence of an indisputable criminal offense that even the most calloused political hack cannot ignore, there will be no conviction.
I think only 8 federal officials have ever been convicted in the Senate. All were federal judges. Before the 17A there were convictions on charges like unlawful rulings and abandoning duties. After the 17A, the convictions were on charges like bribery and tax evasion and involved iron clad evidence.
The point is that the 17A broke the trial part of the impeachment/removal process. The upshot is that the process itself might serve as a punishment of sorts. However, the problem judge may simply return to service where he a or she may not only continue to be a problem, but may also be able to exact revenge.
No one believes the Senate will have the votes to uphold an impeachment. That's not the point though. As is often heard, "the process is the punishment," Not many judges are going to want to mount a defense, spending untold time and money, to sit in front of Congress and explain their thinking.
Probably only have to make an example of one or two and the rest will resist inventing law from the bench.
People assume that Newt Gingrich failed in his impeachment of Bill Clinton. However what is overlooked is that Bill Clinton's fundamental lack of ethics was revealed, with the effect that Al Gore had to campaign for President running away from Bill Clinton.
By the same token Donald Trump's impeachments, contrived and manufactured as they were, set the stage for his political renescence last year.
The court of public opinion is a powerful court and its verdict is final.
Your deep knowledge of history and legal matters is always impressive, Peter, and your ability to concisely pass it on to your readers is very much appreciated!
So, “The normal appellate review process exists for that purpose,” Roberts said. But Trump is going to have to go through the Congressional hearings procedure in order to impeach these judges. Without taking up too much of your time, Peter, can Trump’s legal team just prove to Congress that the appellate review process has NOT worked regarding the judges in question? Or is this such a political decision by Congress that making an iron-clad legal argument is irrelevant?
The problem is that federal judges are being overtly political in their rulings.
That's not okay. Rulings based in politics are by definition not based in law. The appellate process does not address the miscreant judge who bases decisions in politics rather than law. For that we must have impeachment.
President Trump and his team must make this case to the Congress, but also to the American electorate. People must be persuaded that miscreant judges must be removed from the federal bench so that all judges will understand that interposing personal political bias in court rulings is not acceptable and not what the rule of law means in this country.
Impeachment gets senators and members of the house on the record, but that’s about it. The likelihood of a judge being removed via the impeachment route is zero. I’ve written a couple of posts about this, including a new one I did this morning which offers a solution other than impeachment to dismiss partisan judges, check it out if you’re interested and let me know your thoughts.
https://open.substack.com/pub/swlion26/p/ending-judicial-tyranny-how-to-remove?r=q9u1t&utm_medium=ios
I came across the idea to remove judges from attorney Andrew Branca. Branca believes that federal judges can be removed from office for failing to serve during “good behavior,” as outlined in Article III, Section 1 of the U.S. Constitution. He argues that this clause provides an independent standard for removal, distinct from impeachment for “high crimes and misdemeanors.” Branca asserts that this lower standard could allow removal through mechanisms such as a simple majority vote in Congress, rather than requiring the more stringent impeachment process of 2/3 approval in the Senate.
Certainly the Congress has the power to make, unmake, and remake the inferior courts within the Article III Judiciary.
That was a point Newt Gingrich made in highlighting the Judiciary Act of 1802, which was Jefferson’s means of resolving a series of “midnight appointments” made by outgoing President John Adams after the contentious election of 1800.
https://newsletter.allfactsmatter.us/p/judges-on-trial-video?utm_campaign=substack-clips&utm_medium=web&t=685.4&d=128.2
However, while judicial reform is a power of Congress, arbitrary sanction without a process of some sort—without a trial in either a criminal court or the Senate as the court of impeachments—is quite likely to be an unconstitutional Bill of Attainder, which Article 1 Section 9 explicitly denies the Congress.
The Congress could not, therefore, pass a law that said Judge Boasberg was guilty of ethical violations, had failed in his duty of “good behavior”, and was therefore to be removed from the bench. Any act of government which is punitive in nature must be predicated by due process, wherein the accused is to have full rights of the defense, including the opportunity to confront any and all witnesses against him.
When it comes to sanctioning miscreant judges for political and partisan rulings, all roads lead to an impeachment trial as the venue in which to make the case for the judge’s removal.
An interesting argument, but unfortunately too clever by half.
Yes, judges can be removed for ethical violations. However, establishing that an ethical breach warrants removal requires an impeachment trial. Any other litigation process would have to be heard by the judiciary, and that would itself present an unworkable conflict of interest for the judiciary.
It is worth noting that the last judge successfully impeached and removed from the federal bench, G. Thomas Porteous, was convicted in his impeachment trial of bribery and perjury, statutory criminal offenses. There would have been no need for an impeachment if a simple criminal prosecution would suffice--yet the choice was to impeach. (Ultimately, Porteous settled the criminal charges against him by accepting disbarment, thus ending his legal career).
This was one of the reasons Alexander Hamilton championed the Senate as the court of impeachments in Federalist 66.
Impeachment by the house, trial by the senate and removal upon conviction was the remedy that the founding fathers intended for renegade public officials.
While the impeachment in the House was intended to be a political proceeding, trial in the Senate was intended to be a much more fair and unbiased process.
Then came the 17th Amendment. Because senators now pander to voters and donors, Senate trials have become as political as House impeachments. The process is now so infected with politics that unless one party makes up at least 2/3’s of the Senate or there is overwhelming evidence of an indisputable criminal offense that even the most calloused political hack cannot ignore, there will be no conviction.
I think only 8 federal officials have ever been convicted in the Senate. All were federal judges. Before the 17A there were convictions on charges like unlawful rulings and abandoning duties. After the 17A, the convictions were on charges like bribery and tax evasion and involved iron clad evidence.
The point is that the 17A broke the trial part of the impeachment/removal process. The upshot is that the process itself might serve as a punishment of sorts. However, the problem judge may simply return to service where he a or she may not only continue to be a problem, but may also be able to exact revenge.
You are correct, only eight judges have been removed via impeachment in the history of the country. There’s a better way which I wrote about today.
No one believes the Senate will have the votes to uphold an impeachment. That's not the point though. As is often heard, "the process is the punishment," Not many judges are going to want to mount a defense, spending untold time and money, to sit in front of Congress and explain their thinking.
Probably only have to make an example of one or two and the rest will resist inventing law from the bench.
Pretty much.
People assume that Newt Gingrich failed in his impeachment of Bill Clinton. However what is overlooked is that Bill Clinton's fundamental lack of ethics was revealed, with the effect that Al Gore had to campaign for President running away from Bill Clinton.
By the same token Donald Trump's impeachments, contrived and manufactured as they were, set the stage for his political renescence last year.
The court of public opinion is a powerful court and its verdict is final.
Your deep knowledge of history and legal matters is always impressive, Peter, and your ability to concisely pass it on to your readers is very much appreciated!
So, “The normal appellate review process exists for that purpose,” Roberts said. But Trump is going to have to go through the Congressional hearings procedure in order to impeach these judges. Without taking up too much of your time, Peter, can Trump’s legal team just prove to Congress that the appellate review process has NOT worked regarding the judges in question? Or is this such a political decision by Congress that making an iron-clad legal argument is irrelevant?
The problem is that federal judges are being overtly political in their rulings.
That's not okay. Rulings based in politics are by definition not based in law. The appellate process does not address the miscreant judge who bases decisions in politics rather than law. For that we must have impeachment.
President Trump and his team must make this case to the Congress, but also to the American electorate. People must be persuaded that miscreant judges must be removed from the federal bench so that all judges will understand that interposing personal political bias in court rulings is not acceptable and not what the rule of law means in this country.