2005 April 13 Wednesday
Will Congressional Republicans Start Impeaching Judges?

The Republicans might start removing judges via the impeachment process.

House Majority Leader Tom DeLay suggested such a review of judges last week in response to the Terri Schiavo case, words that Democrats interpret as a threat to impeach judges.

Pennsylvania Sen. Rick Santorum, chairman of the Senate Republican Conference, says judges who violate the law have been impeached and that the Constitution gives Congress the task of judicial oversight.

"Should we look at situations where judges have decided to go off on their own tangent and disobey the statutes of the United States of America? I think that's a legitimate area for oversight," Mr. Santorum told ABC's "This Week."

In American judges have come too much to resemble legislators appointed for life. They need to be made more accountable. They live for longer times now and decline further into senility before retiring. Also, liberal law schools have been teaching constitutional theories that justify too large a role for court decision making at the expense of the branches of government run by elected officials.

I say all this even though sometimes I actually agree with the decisions courts make. The problem is that regardless of whether you favor a particular policy change the courts should not have such large roles in setting policies. It might seem quicker to get a policy changed by court decision. But it is ultimately corrupting and undermines the democratic process.

Take Roe vs. Wade for example. I agree with those who see this decision as judicial overreaching. While I am morally ambivalent about abortion and couldn't tell you where life ought to be considered to begin or end (and actually have some really complex thoughts on the subject that trouble me) I see that decision as harmful to the democratic process. Some states had already legalized abortion before that decision. Absent that Supreme Court decision other states would have followed suit. It would have taken years of tiresome participation of activists in campaigns, letters to the editor, speeches, rallies, and so on. But the outcome of legalization in some states would have been far more legitimate precisely because coalitions would have been built and the populaces of many states would have been persuaded to support the legalization. Also, some states would have kept abortion illegal and that would have left their majorities more satisfied with the legitimacy of the democratic process.

Changes in policies that come about as a result of democratic mechanisms enjoy greater acceptance even among people who oppose them. If you fight the good fight and lose you have to accept that the voting majority disagreed with you and your challenge is to argue with that majority and make your case. But when judges just wave their gavel and change a policy you face a much larger challenge in trying to persuade people to your point of view. Judges can make a reversal of their chosen policy require a constitutional amendment. This effectively means a super-majority has to favor a change. So the game is loaded on the side that the judges decide to support.

Share |      By Randall Parker at 2005 April 13 05:20 PM  Politics American Constitution


Comments
Stephen said at April 13, 2005 8:34 PM:

Have some sympathy for the courts. They can't say, "Um, jeez guys, I don't know, its too hard for me..." They have to make a decision, and as the courts get higher the points they have to decide get finer and finer. Add to that that they are doing their best to apply 'big picture' phrases to specific instances.

If parliament is unhappy with a supreme court decision, then its proper response is to seek to amend the constitution to make the issue beyond doubt.

sloppy legislative drafting = increased judicial interpretation.

Derek Copold said at April 14, 2005 7:25 AM:

Amending the Constitution for every sloppy judicial decision is no answer. You look at Roe v. Wade and you see a piece of outright legislation, not jurisprudence. There's no way the Constitution could have been sanely constructed to avoid outcomes like Roe v. Wade or Lawrence v. Texas or a number of other abusive case. Unfortunately, the Terry Shiavo case is a bad example in a good cause. Also, I'm not too thrilled that DeLay is taking up this cause and making it his.

crush41 said at April 14, 2005 7:32 AM:

Stephen,

Judicial interpretation extends far beyond the plain meaning doctrine of what the law actually says verbatim. Other "considerations" like the intent of the legislature, ethical history in regards to the law, pragmatic concerns, etc give the judiciary power to circumvent the legislation even if it is tidy as can be.

Checks and balances considered, the legislative branch is the most powerful branch of government, and should be seeing that it is by far the most representative.

Decades after Roe v. Wade, most Americans still believe that abortion is manslaughter and are pro-lifers. Same-sex marriage is another obvious example--even though in no state will a public vote lead to the change in marriage definition, the judiciary is essentially making the change and writing it on the books. It's not surprising that DeLay is turning up the rhetoric.

Rick Darby said at April 14, 2005 7:51 AM:

There is actually nothing in the Constitution that gives federal courts the right to overrule laws. It is hard to believe that the Founders, who were so shrewd about separation of powers and checks and balances, would have approved a system in which one branch of government with members appointed for life can in effect make law that can't be overturned except by a constitutional amendment.

For many years after the Supreme Court headed by John Marshall assumed the authority to declare laws unconstitutional, it wasn't particularly controversial (although specific decisions were, of course). It seemed to make sense to recognize that state legislators and the Congress, being very human, could go overboard on occasion and legislate, out of expediency, in conflict with the Constitution -- and that there needed to be some way to roll back the excesses.

But it's a far cry from that to our present "imperial judiciary" that makes its own law based on the judges' political views, sociological theories and even precedents in other countries.

Randall, I'm with you that even Supreme Court rulings whose purpose I'm sympathetic to are almost always better decided through the democratic process. For one example, school desegregation might have taken longer but would have gone much more smoothly and created fewer idiocies like forced busing if it had come in the form of laws rather than court diktats.

I suggest that one way to return balance to the system is to pass a Constitutional amendment affirming that any federal court decision declaring a law unconstitutional should be subject to overturning by a simple majority of Congress (for a federal law) or the state legislature (for a state law).

Bob Badour said at April 14, 2005 5:15 PM:

Rick,

I suggest you consider increasing the majority required beyond a simple majority. Here in Canada, legislators ride rough-shod over the pitiable excuse we have for a constitution primarily due to 'the notwithstanding' clause which allows legislators to overrule the supreme court. Quebec immediately passed a law adding the notwithstanding clause to all prior legislation--and much Quebec legislation is inherently fascist in my view.

Stephen said at April 14, 2005 5:43 PM:

The Supreme Court protects the freedom of citizens against the state's tendency to arbitrarily encroach on that freedom. The fundamental question in every supreme court case is, does the state have a compelling reason to interfere in a citizens freedom? And if so, has the state exercised that right both clearly and in the most narrow way practicable?

Everytime the Surpeme Court strikes out a law, its because the state wasn't able to successfully argue that it had a compelling reason for the removal of the particular freedom, that the law wasn't clear or it was too broad. I have trouble seeing what's wrong with that, and I'd rather trust to the Supreme Court & the Constitution to protect my freedom rather than to politicians.

Stephen said at April 14, 2005 6:25 PM:

Rick said:

I suggest that one way to return balance to the system is to pass a Constitutional amendment affirming that any federal court decision declaring a law unconstitutional should be subject to overturning by a simple majority of Congress (for a federal law) or the state legislature (for a state law).

Wouldn't it be simpler to just abandon the Constitution? After all, the offending law was originally passed by a majority and presumably that same majority would simply reaffirm it.

Crush said:

Decades after Roe v. Wade, most Americans still believe that abortion is manslaughter and are pro-lifers. Same-sex marriage is another obvious example--even though in no state will a public vote lead to the change in marriage definition, the judiciary is essentially making the change and writing it on the books. It's not surprising that DeLay is turning up the rhetoric.

The thing about abortion is that the Constitution only protects "persons" from the arbitrary interference of the State. Unfortunately for the anti-abortion lobby, "person" is defined by the Constitution as being people "born or naturalised" in the US, and obviously, a foetus hasn't been born and therefore isn't a person protected by the Constitution. So really, Roe is an outstanding example of the court refusing to engage in judicial law making and instead choosing to stay strictly within the terms of the Constitution...

Oh, and the thing about abortion being manslaughter, surely it would be murder as there's an obvious intent?

Derek said:

...You look at Roe v. Wade and you see a piece of outright legislation, not jurisprudence. ...

Roe simply struck out a law because it overly broadly interfered with the freedom of a citizen to live her life without interference from the state. Then the Court did something helpful, it speculated that future legislators will have to come up with some superduper argument for interfering during the first trimester, but that following the first trimester the 'compelling interest' argument gets easier, and that the State could outright ban abortions post-first trimester if it wants to.

Randall Parker said at April 14, 2005 6:39 PM:

Stephen,

You teach me some of the most amazing things. So then we can kill non-Americans with impunity? After all, by your definition they are not "persons". Open season on tourists and illegal aliens and even legal alien permanent residents?

Also, you say:

The Supreme Court protects the freedom of citizens against the state's tendency to arbitrarily encroach on that freedom.

If only this was the case. But the Supreme Court and other courts violate our rights and coerce us in all sorts of ways. Don't want your kids to be forced into bussing? Sorry, the courts have final say. I can dig up other examples of judicial impositions.

Mark Amerman said at April 14, 2005 6:55 PM:

Stephen,

Supreme Court justices are sworn to uphold the Constitution
and basically that's there only job. There isn't that much
else they are supposed to be doing. Further for the most
part the Constitution is not about what should specifically
be done but instead who has the authority to do what. The
Constitution is a document defining and limiting the powers
of the federal government and in a few restricted areas
the powers of the state governments.

If the Supreme Court was acting the role as defined in the
Constitution then once in a while it would say, "Hey, Mr.
President. You do not have the authority to do what
you're trying to do. You can not do this unless you can
get a constitutional amendment passed allowing you to do
so."

Or it should be saying, "Dear members of the Senate, the
law you just passed exceeds the authority of the federal
government as defined by the Constitution. You cannot
do this unless you can persuade two-thirds of your membership
and three-fourths of the state legislatures to pass
a constitutional amendment allowing you to do so."

But the Supreme Court, and by derivative power all of the
federal judiciary, lacks any authority to legislate. They
are not allowed to tell people what to do or to decide what's
right and wrong. Their only or rather principle power is
tell the federal government, "Stop! What you are doing
or contemplating doing violates the Constitution."

Further as specified by the Constitution, the Senate has
the power to impeach Supreme Court justices and for that
matter any federal justice. The most obvious and appropriate
reason would be violation of oath of office and, in particular,
since this is the whole point of being a Supreme Court justice,
a failure to uphold the Constitution in the judgement of the
Senate.

Now here's a question: Do you believe that the Supreme
Court has restricted itself to the powers given it by
the Constitution?

Do you believe the acts and agencies of the federal government
are in line with the powers granted to it by the Constitution?

How many Supreme Court justices do you think have acted
in ways that exceed the powers granted to them by the
Constitution and hence violated their oaths of office?

Bartelson said at April 14, 2005 7:18 PM:

"Will Congressional Republicans Start Impeaching Judges?"

No

Mark Amerman said at April 14, 2005 7:39 PM:

I reviewed the Constitution and I was wrong in part of what I said
above. Namely, the Supreme Court has any responsibility that
Congress says it has and in particular the Supreme Court and the
federal judiciary are empowered and required to judicially
support congression legislation.

Mark Amerman said at April 14, 2005 7:40 PM:

Except of course where it violates the Constitution.


So the Constitution limits the power of the federal
government, what exactly are the powers of the federal
government?

First off the Constitution limits the federal government
by listing what the federal government can do and, here's
the key part, anything that is not on that list is not
allowed or in other words is unconstitutional.

Then over and above that it lists a few things that
the federal government is prohibited from doing.

Here's the list of the powers of the federal government:

power to collect taxes, as long as said taxes are uniform
throughout the United States,

and to pass bills for the following purposes and only
these purposes:

to pay debts;

to borrow money;

to regulate commerce with other nations and between the states;

to establish uniform laws on naturalization of immigrants;

to establish uniform laws on bankruptcies;

to establish a currency and a standard system of weights and measures;

to regulate the value of foreign currency;

to provide for the punishment of currency counterfeiting;

to establish post offices and post roads;

to promote science and technology by securing for limited
times to authors and inventors the exclusive right to their
respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas;

To define and punish offenses against the law of nations;

To declare war, authorize seizure of foreigners and their goods
in reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money
to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land
and naval forces;

To provide for calling forth the militia to execute the
laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining,
the militia, and for governing such part of them as may be
employed in the service of the United States, reserving
to the states respectively, the appointment of the officers,
and the authority of training the militia according
to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever,
over such District (not exceeding ten miles square) as may,
by cession of particular states, and the acceptance of Congress,
become the seat of the government of the United States;

To exercise exclusive legislation over all places purchased
from states by the consent of the legislatures of the states,
for the erection of forts, magazines, arsenals, dockyards,
and other needful buildings;

To make all laws which shall be necessary and proper
for carrying into execution the foregoing powers;


Here are the further restrictions:

Congress cannot suspend the privilege of the writ of habeas corpus,
except in cases of rebellion or invasion when the public safety
may require it.

Congress cannot pass bills of attainder.

Congress cannot pass retroactive laws.

Congress cannot tax individuals directly unless everyone pays
exactly the same tax (ie. the same dollar amount).
[The 16th amendment overrules this and allows income taxes.]

Congress cannot tax any article exported from any state.

Congress cannot give preference by regulation of commerce
or revenue to the ports of one state over another.

Neither the states nor Congress can require vessels from
one state to enter, leave or pay taxes in another state.

Only Congress can authorize withdrawals from the treasury.

A regular statement of receipts and expenditures of public
monies must be published.

The United States government cannot grant any title of nobility.

Bills for raising revenue must originate in the House of Representatives.

President can veto any bill passed by Congress within 10 days
after it is passed.

Congress can overrule presidential vetos only via supermajority
of two-thirds in both House and Senate.

Every action of Congress requiring a vote by members of Congress
is subject to Presidential veto except for a vote for adjournment.

The president can grant reprieves and pardons for offenses
against the United States, except in cases of impeachment.

The president has the power to make treaties provided
two thirds of the senators concur.

The president shall nominate and, provided a majority of
the senators concur, appoint ambassadors and other
public ministers and consuls.

The president shall nominate and, provided a majority
of the senators concur, appoint judges of the Supreme Court.

The president shall nominate and, provided a majority of the
senators concur, appoint other officers of the United States
whose appointments are not provided for in the Constitution
but are established by Congress.

Congress may create inferior offices whose appointments
require only the approval the president.

Congress may create inferior offices whose appointments
require only the approval of courts of law.

Congress may create inferior offices whose appointments
require only the approval of heads of executive departments.

Congress may create offices that require the nomination
by the president and approval by a majority of the senators.

The president can fill all vacancies of office that occur
during the recess of the senate by granting commissions
that expire at the end of the next congressional session.

Congress may legislate the manner in which state acts,
records, and proceedings shall be proved in another state,
and the effect thereof.

Congress can admit new states into the union.

Congress cannot create states within the jurisdiction
of any state, nor form states by the junction of two or
more states, or parts of states, without the consent of
the legislatures of the states concerned.

Congress has the power to dispose of and make all needful
rules and regulations respecting the territory or other
property belonging to the federal government.

The Congress, the President, and the federal judiciary
guarantee every state in the union a republican form
of government.

The Congress, the President, and the federal judiciary
shall protect each state from invasion.

The Congress, the President, and the federal judiciary
shall on application from state legislature, or of the
state executive if state legislature is not in session,
protect each state from domestic violence.

Congress, whenever two thirds of both houses deem it
necessary, shall propose Constitutional amendments.

Stephen said at April 14, 2005 9:05 PM:

Just so we're all on the same page, here's a bit of the fourteenth amendment:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Randall, the unborn are not protected by the Constitution:

Similarly, a review of the concept of ''person'' as protected in the due process clause and in other provisions of the Constitution established to the Court's satisfaction that the word ''person'' did not include the unborn, and therefore that the unborn lacked federal constitutional protection.

As for going around killing non-citizens, the fourteenth covers that as well:

It has long been settled . . . that the term 'person' [in the equal protection clause] encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside.

Randall Parker said at April 14, 2005 9:14 PM:

But Stephen, the Supreme Court did not just decide that the unborn lack constitutional protections. The Supreme Court also decided that states could not go further than the US constitution and extend rights into an area where the Supreme Court was unwilling to recognize rights.

The history of the United States is full of examples of state constitutions and/or state legislatures recognizing rights which the federal government did not recognize.

I do not pretend to know when a human life should be considered to begin to have legal rights or when exactly those rights should end. I am not trying to argue the anti-abortion brief. I think the issue is best left up to legislatures duly elected by the people.

Stephen said at April 14, 2005 9:14 PM:

Mark, to answer your first question, I think that the Supreme Court does restrict itself to saying, "you can't do that" rather than saying "you must do this". Roe is a good example where it struck out a law (the "you can't do that" role), while refraining from telling the states that they had to do something else (ie the Supreme Court went out of its way to say that the States were free to decide whether or not they wanted to have abortion laws post the first trimester).

crush41 said at April 14, 2005 10:41 PM:

Stephen,

You go verbatim on abortion, but use subsequent jurisprudence to find protection for illegals. Is it static or alive and breathing? Yet the abortion premise is shaky--Amend14: "ALL persons born or naturalized ..." is markedly different from "ONLY persons born or naturalized..." In no way does this necessarily exclude those who are not born or naturalized. Hence, you may see section 5 invoked in the future.

--------
Oh, and the thing about abortion being manslaughter, surely it would be murder as there's an obvious intent?
--------

Zogby phrased the question that way.

--------
I'd rather trust to the Supreme Court & the Constitution to protect my freedom rather than to politicians.
--------

Article V cogently puts the ultimate power in the hands of the Legislature, not the Judiciary. Nonetheless I'll hold you to that. If the Republicans invoke the putative "nuclear option" and Bush puts in a couple of hard-core social conservatives on the Supreme Court I'll expect to see you vociferously defending their rights to rule however they see fit: "promote the general Welfare" gives a lot of room to roam!

Stephen said at April 14, 2005 11:21 PM:

Crush, I don't go non-verbatim on aliens - I think the judgements in the area rely entirely on the last line of the 14th: "...nor deny to any person within its jurisdiction the equal protection of the laws." ie a person who is a citizen is as equally protected as a person who isn't a citizen. So, in the citizen-shoots-alien scenario, where a law prohibits murder, then that protection applies equally to all persons (citizens and aliens alike).

Your comment about the nuclear option raises an issue I hadn't thought about. I wonder what would happen in that circumstance?? Could the system survive the turmoil, or would it essentially mean that the US might, over night, turn into a theology?

Randall Parker said at April 15, 2005 12:32 PM:

Stephen,

The Supreme Court can just as easily violate rights by preventing a government entity or company or individual from doing something as it can by requiring any of the those entities to do something.

The Supreme Court can, for example, uphold the power of the government to grant broadcast licenses based on vague criteria of community service. This gives the governmnent power over speech by broadcasters.

crush41 said at April 15, 2005 9:30 PM:

Stephen,

By failing to arrest fugitives, the government is not providing me equal protection. A democratic theocracy? If the Republicans carry through with the simply majority move, it will be with the precedent set by Leahy and company thirty years ago. My question to you is one of principle--is it the Judiciary's ability to make law regardless of public opinion that you support, or is it that said branch has declared war on social conservatism? If it is the former, then you should have no problem with the end result of the "nuclear option" being invoked.

Stephen said at April 15, 2005 11:34 PM:

Randall, re your earlier comment about not wanting to argue the abortion case, I agree entirely. However, your comment illustrates a point I made earlier - the court doesn't have that luxury, it has no choice but to decide the issue brought before it.

Also, in a later comment you said:

The Supreme Court also decided that states could not go further than the US constitution and extend rights into an area where the Supreme Court was unwilling to recognize rights.

That's its job - to make sure that government doesn't "go further than the US Constitution". The Constitution is the framework within which everyone in the USA lives, including the SC, and all laws must accord with its provisions.

As I said before, if the people don't like a constitutional decision made by the SC, and they can't come up with an argument that changes the SC's mind, then the next step is for their democratic representatives can to amend the Constitution to fix the problem. The SC will then amend its decision.

Stephen said at April 15, 2005 11:37 PM:

Crush, I'm not sure what you mean about failing to arrest fugitives, but if it relates to the murder references earlier in this thread, then all I say is that the SC would strike out a law that said, "Its illegal to murder a person, unless the person is not a citizen", for the reason that the "unless..." part is contrary to the fourteenth because it seeks to "...deny to any person within its jurisdiction the equal protection of the laws".

As for your question, you could have given me a third option, like whether I still beat my wife! That said, given no other options, I'll support "...the Judiciary's ability to make law regardless of public opinion..". Why? In terms of the common law (ie that body of precedent built up by the courts over the last 1,000 years), its obvious that the courts do and always have made law. That law stands until a distinguishing precedent appears, or until the government overrides the common law by enacting a statute. The distinguishing precedent is the bit that allows the courts to evolve the common law to reflect long run social norms. However, if you want the court to respond to current "public opinion", then why bother having a court, it'd be a lot cheaper to do a telephone poll.

That said, I assume you didn't have common law in mind when you asked the question, rather I guess you were thinking about the SC striking out statute laws that conflict with the protections guaranteed by the Constitution. In that respect, I'm trying to rebut the claim that the SC engaged in overreach/adventurism in Roe v Wade (the example cited earlier in the thread), and to point out that in fact that case is a prime example of the SC being conservative by refusing to allow Texas to read additional meaning into the fourteenth amendment. Indeed, if the SC had decided to extend the meaning of "born" in the fourteenth to cover a foetus, then they should have rightly been condemned for overreaching.

Mik said at April 16, 2005 12:46 AM:

People you are waisting your time. Cowardly senators from Stupid Party and anti-American senators from Evil Party might impeach a judge when somebody performs Monica on him in full public view during court proceedings. Or they might not.

Stop dreaming. There will be at most ONE attempted impeachment, Dems will fight like hell, Repubs will fold immediatly.

Impeachment is not plausible, even remotely.


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