Impeachment and Judicial Independence

The authority for impeachment is set out in the Constitution:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Constitution of the United States, Article. III, Section. 1.

A judge may be impeached only for certain specific and extraordinary acts as set forth in Article II, section 4 of the Constitution:

Shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Judicial independence is implicated when impeachment is threatened in response to an unpopular decision.  Even an “incorrect” decision is not grounds for impeachment.  The appellate process is one method of correcting erroneous decisions.

Only 13 federal judges have been impeached in the history of the United States, and of those, only 7 were convicted:

• U.S. District Judge John Pickering of New Hampshire, who was charged with misconduct in a trial and intoxication, was convicted and removed from office on March 12, 1804.

• U.S. District Judge West Humphreys of Tennessee was charged with supporting secession and accepting an appointment as a judge for the Confederate states without resigning from his U.S. post and was convicted, removed from office, and disqualified from holding further office on June 26, 1862.

• Robert Archbald, associate judge, U.S. Commerce Court, was charged with misconduct including receiving personal profits and accepting free trips to Europe and was convicted, removed, and disqualified from holding further office on January 13, 1913.

• U.S. District Judge Harold Ritter of Florida was charged with a variety of judicial improprieties including receiving corrupt payments, practicing law while serving as a federal judge, falsifying his income tax returns and was convicted and removed from office on April 17, 1936.

• U.S. District Judge Harry E.W. Claiborne of Nevada was charged with underreporting his income on his federal income tax returns, bringing disrepute on the federal judiciary, and betraying the people’s trust and was convicted and removed from office on October 9, 1986.

• U.S. District Judge Alcee Hastings of Florida was charged with perjury and conspiring to obtain a bribe and was convicted and removed from office on October 20, 1989.

• U.S. District Judge Walter L. Nixon of Mississippi was charged with lying to a federal grand jury and was convicted and removed from office on November 3. 1989.
  
  From The Associated Press, 1999.  [i]

Former Rep. Robert Kastenmaier (D) of Wisconsin explained the proper role of impeachment as it regards federal judges: “Federal judges should not and cannot be impeached for judicial decision making, even if a decision is an erroneous one.  The conduct . . . entering a judgment and order—is an act that judges are required to do under the Constitution  . . . .   If this was otherwise, the impeachment remedy would become merely another avenue for judicial review.”  [ii]

Certain processes are in place to prevent or correct erroneous decisions.  One method is the appeals process, which is the process by which higher courts review the decisions of lower courts for error—whether legal, factual, or judicial.  A high court can reverse, or overturn, or otherwise alter a decision of a lower court.  The appeals process protects litigants against error committed  by trial judges, attorneys, and jurors.

Also, judicial misconduct is dealt with through judicial councils.  Complaints about the misconduct of a federal judge are governed by the Judicial Councils Reform and Judicial Conduct and Disabilities Act of 1980.  [iii]  The Act sets out procedures for filing a complaint against a judge, and provides avenues for discipline of a judge if the council deems necessary after reviewing a complaint.  There is a judicial council in every federal circuit.

In Is Judicial Independence in Danger?, Abner J. Mikva emphasizes the role of the judiciary, explaining that, “The U.S. Constitution gives federal judges an anti-majoritarian role to play in our political system.  It is the judges who are expected to protect our liberties, even against laws passed by Congress in response to popular demand.”  [iv]  If judges have cause to fear impeachment for legally correct but unpopular decisions, they will become interested parties and their ability to render impartial decisions will be compromised.

For examples of current improper threats of impeachment, see the Judges Under Fire portion of the web site.

[i] See http://www.usatoday.com/news/index/clinton/clin893.htm 

[ii] What Would the Founding Fathers Say?, N. Lee Cooper, Christian Science Monitor, April 4, 1997.

[iii] 28 USC 372. 

[iv] Is Judicial Independence in Danger?, Abner J. Mikva, The National Law Journal, Vol. 14, Num. 37, May 11, 1992.