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Letter from law schools deans to House Speaker Newt Gingrich rejecting plan to impeach judges - Media relations

May 13, 1997

Honorable Newt Gingrich
Speaker of the House
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Speaker:

We, the undersigned law school deans, write to convey our strong opposition to proposals to initiate impeachment proceedings against federal judges who have rendered politically unpopular decisions in cases or controversies properly before them.

Comments by various members of Congress and views expressed in Impeachment! by David Barton suggest that impeachment is an appropriate mechanism to restrain an "overactive" judiciary and that, even though it is unlikely that impeachment will result in conviction, bringing impeachment proceedings against certain federal judges will have a deterrent effect on the substance of their subsequent rulings from the bench. These rationales mis-characterize the purpose of impeachment and only encourage Congress to abuse its extraordinary power to remove a federal judge from office.

Our Constitution created three separate but equal branches of government. To avoid tyranny, power was dispersed among the three branches, joint action by two or more branches was often required to accomplish a legitimate governmental objective, and a system of checks and balances was created whereby each branch was given mechanisms to constrain abuses by the other branches. In the Federalist Papers, No. 78, Hamilton wrote, "For I agree that there is no liberty, if the power of judging be not separated from the legislative and executive powers....[L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments...." Thus, our founding fathers created an independent federal judiciary to interpret the Constitution and protect the civil liberties and fundamental rights of each and every citizen against the tyranny of the majority.

So essential was the concept of an independent judiciary to our constitutional system that our forefathers sought to protect our federal judges from political reprisals for unpopular decisions by giving them life tenure and a guarantee of no diminution in salary during "good behavior." As an ultimate check on judicial independence, Congress was given the power to remove judges from office for "Treason, Bribery, or other high crimes and misdemeanors," the same standard applied to officers of the other two Branches.

Impeachment is an extreme measure and has always been reserved for the most egregious forms of misconduct by a judge. While there is no definitive list of offenses which rise to the level of "high crimes and misdemeanors," the National Commission on Judicial Discipline and Removal, which was established by Congress, stated in its final report issued in 1993 that "Congress has removed judges for various forms of official and personal misconduct, but it has not done so because it disagreed with the outcome of cases. The impeachment and acquittal in 1805 of Samuel Chase, the controversial Federalist justice, seems to have inclined Congress and the Country away from regarding impeachment as a general political check on the substantive exercise of judicial power." Indeed, over the past two centuries, Congress has only removed seven federal judges from office; and in every instance, the impeachment charges were based on intentional misconduct involving perjury, corruption, tax evasion, bribery or treason, and never because of disagreement over a judicial opinion they rendered.

In 1986, the chairman of the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice issued an advisory opinion on the propriety of a citizen-led effort to impeach three judges who outraged some members of the public because they overturned a murder conviction after determining that inflammatory pretrial publicity prevented the defendants from getting a fair trial. The chairman concluded, rightly:

A judicial decision ( right or wrong) standing alone, cannot rise to the level of a "high crime or misdemeanor." If this was otherwise, the impeachment remedy would become merely another avenue for judicial review: a sort of legislative referendum on the quality of judicial decision-making. To the contrary, impeachment is a last step and an extraordinary response at that.

Even though judges should not face impeachment charges for specific judicial decisions, they nonetheless are accountable for their decisions. Since judges are required to explain their decisions, decisions are subject to public and professional scrutiny. Furthermore, our elaborate system of appellate review constitutes a fundamental check on judicial decision- making. Likewise, even though impeachment is a remedy reserved for egregious violations of judicial duty, mechanisms exist to discipline judges for other forms of misconduct; for example, judges are subject to disciplinary action by their judicial councils for conduct "prejudicial to the effective and expeditious administration of the business of the courts, " and they are also subject to criminal prosecution for criminal violations.

Impeachment was never intended to be used -- and never should be used -- against a judge who issues an opinion with which members of the other branches disagree. We urge you to adhere to the long-standing precedent established by your congressional colleagues over the years to use the extraordinary impeachment remedy only in extraordinary circumstances of judicial misconduct.

We hope that you will use the influence of your office to end all efforts to impeach federal judges on the basis of unpopular decisions and to preserve the institutional integrity of the federal bench.


Dean Richard L. Aynes
C. Blake McDowell Law Center
University of Akron
Dean Thomas H. Sponsler
Albany Law School
Union University
Dean Joel Seligman
College of Law
University of Arizona
Dean Leonard Strickman
School of Law
University of Arkansas
Dean John Sebert
School of Law
University of Baltimore
Dean Aviom Soifer
Boston College Law School
Dean H. Reese Hansen
J. Reuben Clark Law School
Brigham Young University
Dean Herma Hill Kay
Boalt Hall School of Law
University of California
Dean Richard J. Morgan
College of Law
Arizona State University
Dean William H. Bowen
School of Law
University of Arkansas at Little Rock
Dean Bradley J. B. Toben
Law School
Baylor University
Dean Ronald A. Cass
School of Law
Boston University
Dean Bruce Wolk
School of Law
University of California at Davis
Dean Susan Westerberg Prager
University of California School of Law
Dean Patrick K. Hetrick
Norman Adrian Wiggins School of Law
Campbell University
Dean Steven C. Bahls
Capital University School of Law
Dean Joseph P. Tomain
College of Law
University of Cincinnati
Interim Dean Steven H. Steinglass
Cleveland-Marshall College of Law
Cleveland State University
Dean David W. Leebron
School of Law
Columbia University
Acting Dean Mark C. Weber
College of Law
DePaul University
Dean Michael J. Gerhardt
School of Law
Case Western Reserve University
Interim Dean Stuart Deutsch
Chicago-Kent College of Law
Illinois Institute of Technology
Dean Kristin B. Glen
Law School at Queens College
City University of New York
Dean Hugh C. Macgill
School of Law
University of Connecticut
Dean Lawrence Raful
School of Law
Creighton University
Dean Dennis Lynch
College of Law
University of Denver
Dean Peter G. Glenn
Dickinson School of Law
Dean William Robinson
District of Columbia School of Law
Dean Robert M. Viles
Franklin Pierce Law Center
Dean Richard Matasar
College of Law
University of Florida
Dean Anthony J. Pagano
School of Law
Golden Gate University
Dean Raymond R. Krause
School of Law
Hamline University
Dean Lawrence C. Foster
Williams S. Richardson School of Law
University of Hawaii
Interim Dean Robert C. Hunter
Law School
Drake University
Dean Nicholas P. Cafardi
School of Law
Duquesne University
Dean John D. Feerick
School of Law
Fordham University
Dean Judith C. Areen
Georgetown University Law Center
Dean Edward Spurgeon
School of Law
University of Georgia
Dean Stuart Rabinowitz
School of Law
Hofstra University
Dean Stephen Zamora
Law Center
University of Houston
Interim Dean John A. Miller
College of Law
University of Idaho
Dean Alfred C. Aman
School of Law
Indiana University
Dean Carlos E. Ramos Gonzalez
Inter-American University School of Law
Dean R. Gilbert Johnston
John Marshall Law School
Interim Dean Alice Gresham Bullock
School of Law
Howard University
Dean Thomas Mengler
College of Law
University of Illinois
Dean Norman Lefstein
Indiana University School of Law
Dean N. William Hines
College of Law
University of Iowa
Dean David E. Shipley
College of Law
University of Kentucky
Dean Gerald T. McLaughlin
Loyola Law School
Dean Howard Eisenberg
Marquette University School of Law
Dean Donald Gifford
School of Law
University of Maryland
Dean Donald Polden
Cecil C. Humphreys School of Law
University of Memphis
Dean E. Thomas Sullivan
School of Law
University of Minnesota
Interim Dean William Champion
School of Law
University of Mississippi
Dean Harvey Perlman
College of Law
University of Nebraska
Dean Leo Romero
School of Law
University of New Mexico
Dean Judith W. Wegner
School of Law
University of North Carolina
Dean R. Lawrence Dessem
Walter F. George School of Law
Mercer University
Dean Jeffrey S. Lehman
School of Law
University of Michigan
Dean J. Richard Hurt
School of Law
Mississippi College
Dean Timothy J. Heinsz
School of Law
University of Missouri
Dean E. Edwin Eck
School of Law
University of Montana
Dean Harry Wellington
New York Law School
Dean Percy Luney
School of Law
North Carolina Central University
Dean David Hall
School of Law
Northeastern University
Dean David Link
Nortre Dame Law School
Dean Victor L. Streib
Pettit College of Law
Ohio Northern University
Dean Andrew M. Coats
College of Law
University of Oklahoma
Dean Colin S. Diver
School of Law
University of Pennsylvania
Dean Peter M. Shane
School of Law
University of Pittsburgh
Dean Neil H. Cogan
School of Law
Quinnipiac College
Dean David E. VanZandt
School of Law
Northwestern University
Dean Rennard Strickland
School of Law
Oklahoma City University
Dean John E. Ryan
School of Law
Roger Williams University
Dean Rudolph C. Hasl
School of Law
St. John's University
Dean Barbara Bader Aldave
School of Law
St. Mary's University
Dean Barry A. Currier
Cumberland School of Law
Samford University
Dean H. Jay Folberg
School of Law
University of San Francisco
Dean John E. Montgomery
School of Law
University of South Carolina
Dean Frank T. Read
South Texas College of Law
Dean C. Paul Rogers, III
School of Law
Southern Methodist University
Dean Roger I. Abrams
Law School/Newark
Rutgers University
Dean Daniel J. Morrissey
School of Law
St. Thomas University
Dean Barry Vickrey
School of Law
University of South Dakota
Chancellor B. K. Agnihotri
Southern University Law School
Dean Richard Wirtz
University of Tennessee College of Law
Interim Dean McKen Carrington
Thurgood Marshall School of Law
Texas Southern University
Dean Howard Glickstein
Jacob D. Fuchsberg Law Center
Touro College
Dean Martin H. Belsky
College of Law
University of Tulsa
Dean Edward M. Gaffney, Jr.
School of Law
Valparaiso University
Dean Barry B. Boyer
University of Buffalo School of Law
Dean M. Michael Sharlot
School of Law
University of Texas
Dean Edward F. Sherman
Tulane University School of Law
Acting Dean David F. Partiett
School of Law
Vanderbilt University
Dean Robert E. Scott
School of Law
University of Virginia
Dean James K. Robinson
Law School
Wayne State University
Dean Donald J. Dunn
School of Law
Western New England College
Dean Arthur N. Frakt
Widener University School of Law
Dean Robert Ackerman
College of Law
Willamette University
Dean Daniel O. Bernstine
Law School
University of Wisconsin
Dean Robert K. Walsh
School of Law
Wake Forest University
Dean James M. Concannon
School of Law
Washburn University of Topeka
Dean Roland L. Hjorth
School of Law
University of Washington
Dean Teree Foster
College of Law
West Virginia University
Dean John A. FitzRandolph
Whittier Law School
Dean Thomas G. Krattenmaker
Marshall-Wythe School of Law
College of William and Mary
Dean Harry J. Haynsworth
College of Law
William Mitchell
Acting Dean John M. Burman
University of Wyoming College of Law

cc: Members, House of Representatives