We Hold These Truths
By Dennis Shea
Policy Review: The Journal of
May-June, 1997 -- Number 83
Federal judges are about as popular today as auditors from the Internal Revenue Service. And for good reason.
In case after case, federal judges are expressing contempt for democracy, overturning laws passed by state legislatures or adopted directly by the people through the initiative process. In recent years, federal judges have blocked the implementation of two California ballot initiatives, one that denies government services to illegal immigrants and one that bans racial and ethnic preferences. In Washington state and New York, federal judges have overturned state laws banning physician-assisted suicide. And the Supreme Court overturned a Colorado initiative to deny giving special legal preferences to homosexuals.
when the judiciary
can knock down laws
like so many
The American people are asking themselves, why bother voting when the judiciary can knock down laws like so many bowling pins?
In conservative circles, exploring ways to curb the activism of some of our federal judges has also become a hot topic. One suggestion that seems to be gaining currency is limiting the terms of federal judges, who now enjoy lifetime appointments. In fact, the 1996 presidential campaign of Bob Dole, of which I was a part, seriously considered making term limits the centerpiece of its critique of the federal judiciary and President Clinton's judicial appointments. After all, poll after poll show that term limits for judges are enormously popular with the American people. The Dole campaign ultimately rejected the idea. And so, too, should those interested in curbing the excesses of judicial power.
For starters, imposing term limits on judges would be difficult. Article III, section 1 of the Constitution states that federal judges are to hold their offices "during good Behaviour." Changing this provision would require a constitutional amendment. In recent years, Congress has proposed dozens of constitutional amendments on everything from balancing the federal budget and campaign spending limits to flag desecration and voluntary school prayer.
Unlike many of these proposed constitutional amendments, which are mainly designed to overturn specific decisions by the Supreme Court, an amendment to impose term limits on federal judges would alter the fundamental structure of our system of government. Anticipating that the judiciary would be the weakest of the three branches, the Framers explicitly granted federal judges lifetime tenure so that they would be able to protect the Constitution against "legislative encroachments."
As Alexander Hamilton explains in Federalist No. 78, "nothing will contribute so much as [lifetime tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty." Is it smart to monkey with the fundamental mechanics of our constitutional structure? Do we really want to second-guess the Framers?
Perhaps as important, term limits would not drain the batteries of activist judges. Imagine a 10-year limit. During this period, what would stop a federal judge from micromanaging a state prison system, raising property taxes to finance the overhaul of a school system, or striking down a ballot initiative passed by a popular majority? A term limit might prompt activist judges to rush to make their mark on history.
Some argue that term limits should be linked to reappointment: When a federal judge's term expires, he or she would be eligible for reconfirmation by the U.S. Senate. But what would this accomplish? Anxious about reappointment, judges might tack their decisions to the prevailing political winds as the expiration of their terms grew near. Would judges resort to lobbying the Senate for reappointment? What kind of deals would be made? And what about a conservative judge, properly committed to the principle of judicial restraint, who must face reappointment by a hostile Senate controlled by liberals?
Finding the right balance between judicial independence and judicial accountability is difficult. But there is a way. It's called shame.
Shame is one of the most underutilized checks on a runaway judiciary. Remember Harold Baer, the federal district court judge in New York, who suppressed more than $4 million worth of drugs seized as evidence by the New York City police? Baer claimed that the police lacked a "reasonable suspicion" that a crime was occurring, even though they observed four men at 5 a.m., in an area notorious for drug-dealing, load bags into the trunk of a car without speaking to its driver, and then run away after noticing the cops. According to Baer, it was perfectly normal for them to flee from the police since "residents in this neighborhood tended to regard police officers as corrupt, abusive, and violent."
The foolishness of this ruling transformed Baer into the poster child for an out-of-control and out-of-touch federal judiciary. After being publicly denounced by both President Clinton and Senator Dole, the judge hastily reversed himself.
Even the Supreme Court has recognized that "[t]he operation of the courts and the judicial conduct of judges are matters of utmost public concern." When a federal judge issues a "prison cap" order, resulting in the early release of hundreds of violent criminals, that's a matter of real public concern that should concern politicians too. The same can be said when a federal judge strikes down a popularly enacted ballot initiative using half-baked constitutional analysis. Elected officials at all levels of government have an obligation to speak out when a judge crosses the line. Can you imagine Abraham Lincoln not commenting on the infamous Dred Scott decision?
Too often today lower federal court decisions are issued without much public notice. They are tucked away in court reports, inaccessible to the public. And don't expect the liberal and often lazy mainstream press to bring these decisions to light. That's why the House and Senate Judiciary Committees should cull through recent federal court decisions and publicize those that fall within the "shameful" category. Perhaps the two Judiciary Committees should establish special subcommittees for this purpose.
The congressional leadership should also consider passing, on a routine basis, nonbinding resolutions expressing disapproval of those decisions that show a clear disregard for established law. The purpose of these resolutions would not be to change the outcome of any particular case, but to serve as a warning to renegade federal judges that the people's elected representatives are monitoring their conduct in office.
What About Impeachment?
In those extraordinary cases where a federal judge has clearly, deliberately and consistently exceeded his authority, there is also another option. Let's take our cue again from Alexander Hamilton, this time in Federalist No. 81. In it, Hamilton woefully underestimates the mischief judges might cause in the future: "Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree affect the order of the political system." But then he redeems himself by suggesting an antidote to those rare occasions of chronic judicial arrogance: impeachment. As he explains, "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations."
In other words, Hamilton and the Framers envisioned that any judge who consistently and deliberately exceeded his judicial authority would be given a pink slip. The impeachment process should be regarded as the ultimate check on a rogue judiciary.
Representative Tom DeLay of Texas performed a public service recently by suggesting that renegade federal judges could be removed from office through the impeachment process. Not surprisingly, this suggestion has met with fierce criticism. Even some of DeLay's Republican colleagues have dismissed the impeachment remedy out of hand.
Not so fast. Congress should first sort out and evaluate the competing arguments over impeachment. Article II, section 4, of the Constitution provides that "[t]he President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." (Italics added.)
Some observers have cited the "high Crimes and Misdemeanors" phrase to argue that only an indictable criminal act, not a ruling in a contested case, can be grounds for impeaching a federal judge. This view, however, is not universally shared. In 1833 the famed Justice Joseph Story explained in his Commentaries on the Constitution that "misdemeanor" refers to forms of misbehavior well beyond indictable criminal acts. According to Story, the impeachment power applies to "what are aptly termed, political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests." More recently, law professor Raoul Berger points out that "impeachment itself was conceived because the objects of impeachment for one reason or another were beyond the reach of ordinary criminal redress."
Yes, the most recent examples of judicial impeachments have all involved indictable criminal behavior on the part of the impeached judge. But in 1803, one of the impeachable offenses cited against Judge John Pickering was his failure to adhere to the requirements of an act of Congress, hardly a criminal act.
And none of the articles on which the House of Representatives impeached Judge Robert Archbald in 1912 amounted to an indictable offense. In fact, the congressman managing the Archbald case insisted that a judge could be impeached for "the entering and enforcement of orders beyond his jurisdiction"-in other words, an abuse of power. Isn't an abuse of power a form of "misbehavior"?
Ultimately, it's up to the Congress to determine the proper grounds under the Constitution for impeaching a federal judge. The Supreme Court ruled just four years ago that matters governing impeachment are left to Congress and that the courts are powerless to review impeachment decisions (Nixon v. United States, 1993). Writing for the majority, Chief Justice William Rehnquist reasoned: "[j]udicial review [of impeachments] would be inconsistent with the Framers' insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the judicial branch by the Legislature."
As the 105th Congress looks at ways to curb the "imperial judiciary," it should consider breathing new life into its own impeachment authority. A very careful and highly selective use of this authority would send a powerful message to the federal bench that its renegade days are over. Sure, it would be highly controversial for the House of Representatives to initiate impeachment proceedings against a federal judge for noncriminal acts. But who says that controversy is incompatible with good sense?
Dennis Shea, a contributor to MSNBC, was formerly deputy chief of staff to Senator Robert Dole.
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