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
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
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
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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