A review of thirty years of scholarship on why judicial impeachment - even on partisan grounds - is permissible.
The power to impeach officers of the United State government is one of the gravest powers entrusted to Congress in the U.S. Constitution. The power is far-ranging and flexible, laying at the feet of Congress the ultimate responsibility to insure that the officers of the federal government are acting in the national interest and not abusing their authority. Congress has not had many occasions to use the power over the course of the nation’s history, and the most frequent targets have been low-level judges who had engaged in undoubtedly bad behavior. Impeachments of more high-profile targets like presidents raise more difficult political and constitutional issues about how the power should be used and what the role of the impeachment power might be within the American constitutional system.
We might distinguish among three uses of the impeachment power, which I will call the political, the personal, and the constitutional. I believe that we should largely reject the first, and should be very cautious of the second. We do not always appreciate the significance of the third.
We might envision the impeachment power as a political weapon. Such a use of the impeachment power might be particularly partisan, but need not necessarily be so. When utilized as a primarily political instrument, the impeachment power’s significance is that it accomplish ordinary political ends. Impeachment in this vein is simply politics by other means.
It is the ordinary stuff of politics that we disagree over policy and personnel. We have well established tools for trying to overcome those disagreements and make collective decisions about how best to advance our common interests. We have elections; we deliberate; we negotiate; we compromise. It is a foundational principle of democratic forms of government that when incumbents lose an election, they turn over governing power to the electoral victors and wait their turn to make a case to the electorate that they should be returned to power.
The impeachment power was not designed to be an alternative mechanism for overturning disfavored election results and circumventing the normal give-and-take of the policy-making process. The constitutional drafters did not give Congress a free hand to remove government officials with whom they disagreed. They gave Congress only the limited power to charge wayward officials with having committed specific high crimes and misdemeanors and to subject them to a trial to determine whether such charges are true. As a matter of raw power, a sizable and determined congressional majority could use the unchecked impeachment power to clear their opponents from government offices and pave the way for their own favored policies and personnel. This would be nothing but an abuse of the powers entrusted to Congress by the Constitution and a radical departure from our accepted understanding of the practical workings of our constitutional system.
Throughout our history, legislators have been very wary of setting a precedent that might suggest that Congress could use the impeachment power as a tool for overcoming policy-making gridlock or for settling political scores, and they were right to do so. Unfortunately, those who embraced #Resistance and marched in opposition to the legitimacy of the very idea of a lawfully elected President Donald Trump quickly looked to the impeachment power as the next weapon of choice. In doing so, they tarnished their own cause and did their own constitutional damage by rendering the impeachment power suspect. Extreme political polarization and divided government can create temptations to use the impeachment power as just another way to outmaneuver one’s opponents. We should not normalize the impeachment power in that way.
A second use of the impeachment power is primarily personal. Impeachments can be personal when what is primarily at stake is the continuation of a given individual in office. Such an impeachment is very consequential for the individual, but is not necessarily particularly consequential for the system as a whole. This is a sometimes necessary use of the impeachment power, but it is not particularly uplifting or compelling. Ironically, this use might also dominate our thinking about the impeachment power.
We are encouraged to think of impeachments in personal terms because they easily fall into the tropes of a crime drama. An impeachable offense is committed, or at least alleged to have been committed. A suspect is brought before a court to answer those charges. Civil order is restored by finding the defendant innocent or guilty of the charges and an appropriate sanction imposed. But this narrative does little to explain why we should impeach. Impeachments are not about law and order; they are a constitutional solution to a political problem.
Impeachments that are primarily personal might be justifiable when the possibility of someone continuing in office has simply become intolerable, but we should approach this problem very cautiously. There are often alternatives available to contain the damage that an individual can do without the necessity of an impeachment. Nonetheless, some judicial impeachments have taken this form. Judges who can no longer be trusted to act appropriately in conducting trials or who face imminent jail sentences for their own criminal behavior force the hand of Congress. An official who cannot be effectively checked by any other means might put Congress in the position of having no choice but to pursue impeachment and removal in order to stop a string of abuses. Arguably, an individual officeholder who has egregiously violated well established political, legal or constitutional norms might need to be removed because their mere presence is no longer consistent with the nature and terms of their office.
An important aspect of the impeachment of Bill Clinton took this form. At the heart of the movement to impeach was the sense that there was a basic conflict between Clinton’s personal conduct and the stature and dignity of the office of the president. The impeachment failed in part because much of the nation did not agree that there was an irreconcilable discordance between the man and the office. The people had elected and reelected Clinton with a clear-eyed view of his personal failings, and new revelations and new scandals arising from his character flaws did not fundamentally alter that judgment. In such a circumstance, an impeachment can seem like an effort to re-litigate the election, and Congress is urged to “move on.” If the impeachment power is turned against a president, Congress has a high burden to meet in showing why there are no adequate alternatives to waiting to replace the incumbent at the next election.
The third use of the impeachment power is actually the most important but it is often overlooked. This is when impeachments are used for constitutional purposes. I do not mean using the power in a manner consistent with the Constitution. I mean using the impeachment power to articulate, establish, preserve and protect constitutional norms, or as I have sometimes characterized it, to “construct” constitutional meaning and practices.
Impeachments are particularly personal when the relevant constitutional norms are already clear and generally supported, and the individual in question has simply violated them. Impeachments serve a larger constitutional function when the norms at issue are not particularly clear or well accepted. The impeachment itself becomes a vehicle for trying to establish the new normative commitments. The fate of the individual being impeached is less important than the message being sent. The officer in the docks is held up as an object lesson. The impeachment is primarily educative and forward-looking, not punitive and backward-looking. The critical audience for the impeachment is the other current and future federal officers who are being instructed on the proper bounds of acceptable political behavior. The actual removal of the impeached official is almost beside the point. The impeachment is the message. Once the message has been sent and received, the mission has been accomplished.
Such norm-creating use of the impeachment power had been part of the British experience as Parliament struggled to wrest greater authority from the king, and it has been part of the American experience as well. When Associate Justice Samuel Chase was impeached for his judicial conduct in the run-up to the 1800 elections, the Jeffersonians hoped to set some clear ground rules for the federal judiciary in the new constitutional system. Federal judges could not understand themselves to be partisan actors on the political stage and expect to keep their offices. When President Andrew Johnson was impeached in the midst of Reconstruction, Republicans in Congress wanted assurance that the president would not use all the tools at his disposal to obstruct congressional policy and undermine the political base of the members of Congress. Johnson was spared conviction in the Senate when he apparently satisfied enough swing members that he would relent in his battle with Congress and serve out the rest of his term quietly.
Sometimes Congress just needs to use the impeachment power to emphasize the stability of the norms that were already in place. An impeachment in that context can be norm-reinforcing, rather than norm-creating. Allowing a judge to keep his seat after egregiously bad behavior has been exposed and sanctioned in other venues might send the wrong message to the larger judiciary that such behavior is not so bad. An impeachment puts an exclamation mark on the political and legal system’s judgment that some actions should not be tolerated. The question to be asked in such circumstances is whether the established norms really require reinforcement by these means.
Advocates of an impeachment need to think about what they are hoping to accomplish. Other political actors who are being asked to lend their support to such efforts must similarly consider what is to be gained by making use of such a powerful constitutional weapon. Proponents of an impeachment need to be able to explain why it is now time to make use of a last resort option and why there are no better tools available for accomplishing their ultimate political objectives. There are times when an impeachment is necessary, but we should not want impeachments to become part of our normal political experience. It is an extraordinary remedy for extraordinary situations, and if we reach for that remedy we should know why we are doing so and be prepared for the consequences.