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

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.
Sincerely,

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