The constitutional procedure by which judges, who have tenure for life, can be removed from office, if impeached by the House of Representatives and convicted by the Senate.

The Constitutional Convention of 1787 spent little time discussing impeachment of judges; the major focus was on presidential impeachments. The Virginia Plan, introduced as the Convention began its session, called for the president to be elected by Congress and gave the Supreme Court power to conduct impeachment trials. When the Convention decided to use an electoral college to choose the president, impeachment was entrusted to Congress. Article II of the Constitution provides that all civil officers of the United States can be removed from office if impeached by the House of Representatives and convicted by two-thirds of the Senate of “treason, bribery, or other high crimes and misdemeanors.” Unlike presidential impeachments in which the chief justice presides, the vice president or president pro tem of the Senate presides over judicial impeachments. Article III guarantees federal judges life tenure “during good behavior.”

The text of the Constitution leaves many questions about the impeachment of judges open to debate. It does not answer definitively whether impeachment is the only means for removing federal judges or whether they can be disciplined for general misbehavior as well as impeachable offenses. Further, it does not clarify whether impeachable offenses included in the terms “high crimes and misdemeanors” must always be indictable crimes. These questions have arisen every time a judge has been impeached. Because only one Supreme Court justice, Samuel Chase,Chase, Samuel has been impeached, the trials of lower court judges need to be examined to see the range of possible answers.

When the Jeffersonian Republicans captured control of Congress and the presidency in the election of 1800, they faced a federal judiciary staffed entirely by Federalist judges, many of whom were highly partisan. One such magistrate was district court judge John Pickering of New Hampshire, probably senile, who conducted court while drunk, and whose decisions ignored relevant statutes. Encouraged by the Federalist leadership in Congress, which did not want to see a Republican judge succeed him, Pickering refused to resign.

Because impeachment was the only way to remove a judge that was specified in the Constitution, the Republicans used that procedure. At his Senate trial, Pickering’s lawyers produced evidence that he was insane and therefore could not be guilty of committing a crime. Federalist Senators unanimously voted not guilty. Republican Senators were uneasy about calling Pickering’s erratic and partisan decisions criminal; however, two-thirds of the Senators voted for removal when the question was phrased as whether Pickering was “guilty as charged,” rather than “guilty of high crimes and misdemeanors.”

The removal of Pickering for misconduct in office encouraged Radical Republicans to move against Associate Justice Samuel Chase, the most highly partisan Federalist on the Supreme Court. The charges did not involve his decisions on the Court but rather his actions when sitting as circuit court judge, a service then required of Supreme Court justices. Chase had vigorously and abusively supported the prosecution of Republican editors and politicians who criticized the administration of John Quincy Adams. His tactics in the trials of John Fries for treason and James Callender for seditious libel had so hampered the defense attorneys that they withdrew from their cases. When addressing a Baltimore grand jury, he furiously attacked the political principles of the Jeffersonian Republicans.

On March 12, 1804, the House voted to impeach Chase. He testified before the Senate in his own defense, arguing that his behavior had not violated any law. His lawyers insisted that only commission of an indictable offense satisfied the constitutional standard of a high crime or misdemeanor. Federalists feared that if Chase was convicted in the Senate, the Republicans would go on to remove Chief Justice John Marshall and other Federalist justices. After a two-month trial in February and early March of 1805, Federalist senators voted unanimously in support of Chase. When six Republican senators voted to acquit Chase, the count fell below the necessary two-thirds majority.

Most commentators view Chase’s acquittal as the correct outcome, believing that the result established the independence of the judiciary against partisan attack. Raoul Berger in his Impeachment: The Constitutional Problems (1973) disagrees, especially citing the Callender trial, in which Chase “refused to exclude admittedly biased jurors, identified himself at every step with the prosecution, and employed every means to discredit and disable defense counsel. By the standards of his own day, this was an oppressive misuse of power; and it furnished grounds for impeachment under English law, to which the Founders looked for guidance.”

Congress has rarely invoked the impeachment process to remove judges from office. The House has impeached ten district judges, seven of whom (including Pickering) were convicted by the Senate. None of the accusations were based on their judicial decisions. Only three judges, all in the 1980’s, were impeached and removed primarily for having committed criminal offenses. However, an indeterminate number of judges resigned when faced with the threat of impeachment. Because the only punishment provided by the Constitution is removal from office, Congress has been unwilling to use the cumbersome and time-consuming impeachment procedure after a judge resigns.

Charges against Pickering and three other judges included various sorts of misbehavior that were not indictable offenses at the time they occurred. Judge West H. Humphreys of Tennessee was removed in 1862 after he abandoned his court, without resigning his appointment, and joined the Confederacy. Judge Robert Archbald was removed in 1913 for financially profiting from his position in various improper ways, which were not indictable crimes at that time. In 1936 the Senate failed to convict Judge Halsted Ritter on six counts alleging specific violations of law, including filing false income tax returns, then convicted him of a catch-all seventh count asserting that his behavior had brought his court into scandal and disrepute.

In the 1980’s, however, the removals were based on criminal offenses. Judge Harry L. Claiborne of Nevada was removed in 1986, after he was convicted of income tax evasion yet refused to resign his life appointment. In 1989 Judge Alcee Hastings of Florida was convicted and removed for soliciting a bribe, even though a jury had already acquitted him of that charge. The same year Judge Walter Nixon of Mississippi was removed after being convicted of lying to a federal grand jury.

In the 1980’s cases, the Senate used a procedure designed to limit the amount of time the entire Senate spent on impeachments. Instead of the full Senate meeting to listen to the evidence, a special committee heard the evidence and the arguments of the lawyers. It then composed a neutral statement of the facts and a summary of the evidence, along with the full record of the hearings, which all Senators could examine before they voted. Judge Nixon appealed his conviction to the Supreme Court, arguing that this procedure did not meet the constitutional mandate that the Senate “try” impeachments, but the Court in Walter Nixon v. United States[case]Walter Nixon v. United States[Walter Nixon v. United States] (1993) ruled that the Senate was the judge of its own procedures. The Senate did not use the short-cut procedure when it considered the impeachment of President Bill Clinton in 1999, and it is unlikely that it would be used if a Supreme Court justice were impeached.

Those offended by the judicial decisions of the Court under Chief Justice Earl WarrenWarren, Earl called for his impeachment in an attempt to mobilize public opinion against the Court. One of the first projects organized in December, 1958, by the newly formed John Birch Society was a campaign against Warren. The society charged that the chief justice voted the Communist Party line in his decisions and thereby sanctioned treason. Pamphlets calling for his impeachment were widely distributed, billboards urging “Impeach Earl Warren” appeared across the country, and Congressmen were inundated with letters demanding his removal from office. Warren claimed that he viewed the billboards as a joke but was furious when pickets, outside a building where he was to speak, showered him with leaflets attacking his integrity. The movement brought national attention to the John Birch Society but did not result in congressional action or affect Warren’s official activity.

The attack on Associate Justice William O. DouglasDouglas, William O. was more serious, although it too failed to achieve its objective. The move reflected conservative Republicans’ distaste for Douglas’s lifestyle, including his four marriages, as much as his liberal decisions on the Court. Among the impeachable offences Republican Minority Leader Gerald R. Ford cited on April 15, 1970, when he called for Douglas’s impeachment, were associating with publishers of obscene works and with members of the New Left. When challenged on the floor of the House to introduce a resolution directly impeaching Douglas, Ford refused. His challenger, a Democratic Congressman, outmaneuvered Ford by himself introducing such a resolution.

Ford had intended to move for the creation of a special committee to inquire into his charges. Such a motion would automatically be referred to the House Rules Committee, chaired by a Southern congressman bitterly opposed to Douglas and his ideas, who could then appoint a committee eager to hold public hearings at which enemies of Douglas might air their accusations and innuendoes. However, by the rules of the House, a direct motion to impeach went automatically to the Judiciary Committee, chaired by a liberal New York congressman. He appointed a friendly subcommittee, which spent five months painstakingly investigating all allegations against Douglas and issued a 924-page report clearing him of all charges.

When President Richard M. Nixon took office in 1969, he wanted to appoint several conservative justices to counter what he considered to be liberal decisions by the Court. His opportunity came in May of that year, when revelations in the media of apparently improper financial dealings on the part of Justice Abe FortasFortas, Abe raised the threat of possible impeachment. Fortas resigned, permitting Nixon to appoint a more conservative nominee.

In his speech calling for the impeachment of Douglas, Ford articulated his famous definition of an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” Although more permissive than the history of impeachments supports, the definition has a kernel of reality. The constitutional language is sufficiently ambiguous to admit a wide range of interpretations and the small number of actual cases does not provide settled precedents. Some commentators still contend that only commission of an indictable crime warrants impeachment, thereby rejecting as unjustified several historical verdicts. Others argue that misconduct amounting to serious abuse of office also warrants removal from power, even if no law is violated. No one accepts the implications of Ford’s definition that if the political context makes removal from office appear desirable, even trivial offenses could justify impeachment of a Supreme Court justice.

• Raoul Berger’s Impeachment: The Constitutional Problems (Cambridge, Mass: Harvard University Press, 1973) is the classic study of theories of impeachment and includes much information on judicial impeachments. Joseph Borkin’s The Corrupt Judge: An Inquiry into Bribery and Other High Crimes and Misdemeanors in the Federal Courts (New York: Clarkson N. Potter, 1962) provides much detail on the impeachment of lower court judges. Irving Brant’s Impeachment Trials and Errors (New York: Alfred A. Knopf, 1972) uses an historical analysis to put the attempt to impeach Justice Douglas into perspective. William S. Carpenter’s Judicial Tenure in the United States: With Especial Reference to the Tenure of Federal Judges (New Haven, Conn.: Yale University Press, 1918) contains a chapter analyzing removal problems. Michael J. Gerhardt’s The Federal Impeachment Process: A Constitutional and Historical Analysis (Princeton, N.J.: Princeton University Press, 1996) focuses on scholarly debates about impeachment and includes a useful bibliography. Peter Hoffer and N. E. H. Hull’s Impeachment in America, 1635-1805 (New Haven, Conn.: Yale University Press, 1984) offers a detailed account of the evolution of American ideas about impeachment. Chief Justice William H. Rehnquist’s Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: William Morrow, 1992) is a well-written narrative of Chase’s trial. Charles Warren’s classic The Supreme Court in United States History (3 vols., Boston: Little, Brown, 1922) notes the ways in which partisan attacks on the Court have attempted to influence its decisions.

Appointment and removal power

Chase, Samuel

Douglas, William O.

Warren, Earl