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PRESERVE AND PROTECT OUR DELICATE BALANCE

American Bar Association
Division of Public Affairs and Media Relations

PRESERVE AND PROTECT OUR DELICATE BALANCE

N. Lee Cooper
President, American Bar Association

More than two hundred years ago, the Founders of our nation created a form of government that masterfully provided checks and balances to ensure individual liberties and prevent tyranny by the majority. The most innovative and significant feature of the federal government that was created in Philadelphia was the separation of powers among three independent branches of government -- the executive, the legislative and the judiciary. For more than two centuries this separation of powers has worked to protect and defend freedom in our nation. Indeed, our progress as a society often has been forged by a judiciary free from partisan politics, a judiciary acting on the basis of what is right and just, not what is popular.

Now, some members of Congress seem poised to destroy this delicate balance by attempting to use the process of impeachment -- or, at least, the threat of impeachment -- to impose the will of Congress on the judiciary. The Majority Whip of the House of Representatives has been quoted in media interviews naming specific federal judges targeted for impeachment.

In high school civics class we learn that the U.S. Constitution provides that public officials can be impeached only for "Treason, Bribery, or other High Crimes and Misdemeanors."

None of the judges identified and targeted for impeachment in the current proposal have been accused of treason or any other criminal act. Rather, they have been singled out because of highly publicized rulings they have made, rulings with which the Majority Whip and some in Congress do not agree.

Imagine if the standard for impeaching other officials were simply disagreement over decisions or judgments. Members of Congress could impeach other members simply because they did not agree with their voting records. And Congress could impeach the President of the United States over a policy disagreement. The Congress would be so tied up in these activities that it would make our current system of "gridlock" look very attractive.

The use or threatened use of impeachment as a means to express disagreement with a particular decision is unprecedented in the history of the United States. The process of impeaching a federal official was intended by the Founders to be difficult. In the entire history of our nation, the House of Representatives has voted to impeach a federal judge only 13 times; only seven federal judges have actually been convicted in a trial before the Senate and removed from office.

More important, in more than 200 years no federal judge has ever been removed from office because Congress disagreed with the judge's judicial philosophy or with a particular decision. Let's not begin now to trample on the constitutional rights of American citizens.

Impeachments based on policy differences would interject chaos into our court system. Judges, whom we expect to decide cases based on a careful examination of the facts and thoughtful analysis of applicable law, would be subjected instead to the vagaries of shifting political currents. Decisions and opinions that result from days of hearings, hours of legal research and a great deal of careful scrutiny would then be dissected into sound bites and campaign commercials to be used in an impeachment proceeding or in the next election cycle. Any federal judge threatened with this sort of partisan bashing might be tempted to act on matters not based on the applicable law; rather, the standard might become the prevailing winds of political popularity. This is not the justice system the American people want or deserve. This is a partisan political circus.

The fact is that our Founders intended for our courts to operate independently, to be a check on the temporarily popular. The courts' independence was constructed in order to assure that minority rights are protected against popular and powerful interests. The history of our nation is marked with examples of our courts working independently, free from political intrusion and oversight, to lead our nation in times of need -- in ending the vicious practices of segregation, in extending voting rights to all Americans, and in protecting average citizens from unwarranted government intrusion. This is a record deserving our great pride.

The genius of the American system of government is the delicate balance that has been crafted between and among the three independent branches. Moving to impeach judges for individual decisions -- a kind of legislative referendum on judicial decision-making -- threatens to destroy this delicately crafted balance. In a sense, it would mark a departure for our nation -- a ripping up of our Constitution and all its values. It is a recipe for disaster that could pull the plug on our constitutional democracy.

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