Friday, April 15, 2005
More on judges: Former federal prosecutor Andy McCarthy has a post on NRO's "The Corner" which asks similar questions to ones I posed yesterday.
Sorry to arrive late for what has been yet another great Corner discussion about the judges. The question that occurs to me reading the exchanges is: For what egregious thing would we impeach a judge?
I was probably as critical as anyone during the Schiavo controversy of the arrogance with which the courts – state and federal – ignored the direction of the political branches to scrutinize the underlying facts. But there’s a huge gulf between acknowledging that the stakes here were extraordinarily high (viz., life and death) and, on the other hand, concluding that coming out on the wrong side was an impeachable offense.
Some of the things Judge Greer did in the case appear indefensible to me. But I don’t see anything that the federal courts did that was indefensible. Wrong? I think so (although reasonable people disagree). But indefensible? As in, “without colorable basis in law”? Clearly not. For example, Congress could have written a law that expressly directed reinsertion of the feeding tube. It didn’t, no doubt because this would have provoked a debate that would have made expedited passage impossible. As a result, the courts were left to have the debate congress avoided – over such questions as whether the ordinary preliminary injunction standards applied, whether the All Writs Act should be employed to circumvent the usual rule that a party must show a likelihood of success on the merits, etc.
Profoundly disagreeing with how the judges came out on these questions is a far cry from saying what they did was irrational or, worse, impeachable. It seems highly irresponsible to speak about impeachment in the Schiavo context, where even we around here (not to mention the American people) were in pretty spirited disagreement about what the courts should do. (I should emphasize that the discussion in the Corner has been about impeachment generally, *not* impeachment in the particular context of Schiavo.)
But if it came to it, for what would we impeach a judge? I’ve never been too impressed by the conventional wisdom that the failure to impeach Justice Samuel Chase in 1804 stands as insuperable precedent that a judge may never be impeached for unpopular rulings – even if the rulings are unpopular precisely because they far transcend the proper role of the judiciary and usurp the people’s democratic prerogatives.
But, that said, how outrageous would a ruling have to be such that we would say the judge was no longer in “good Behaviour” status (Art. III, Sec. 1) and should be impeached? And should our calculation today be the same as Hamilton’s, given that Hamilton wrote before the Supreme Court seized the mantle of ultimate constitutional arbiter in 1803 – and long, long before that ruling (Marbury v. Madison) was cemented as seemingly indisputable law.
Let’s say a judge held that the logic of the “right to privacy” required government recognition of three-party marriages or of the freedom to inject heroin in the privacy of one’s bedroom? Or let’s say a judge ordered the president to pull all troops out of Iraq on the ground that our invasion was not approved by the Security Council and thus violated the UN Charter? Are those rulings impeachable?
They are surely wrong and would (one hopes) be swiftly reversed. But I suspect there is enough bad, judge-made law out there that they would not be deemed so irrational as to warrant an impeachment that two-thirds of the Senate would endorse. This only underscores that the problem we are talking about here is, to echo some of what’s been argued, cultural and systemic.
On a related note: I must confess that I was somewhat surprised that the Oregon Supreme Court struck down same-sex marriages that had been performed in that state. Of particular note is the court's consideration of a vote by the state's residents who passed a constitutional amendment defining marriage as one-man, one-woman. It could be a start of a trend if courts actually started considering the will of the people, instead of just consulting their own.