|VOL. 13, NO. 8||September 20, 2011|
Curbing the Courts: Judicial Removal As a Tool in this Effort
". . . the best way to prevent 'judicial legislation' [i.e., the injection of Humanist/Reconstructionist values into the Constitution] is not through structural changes in the federal judicial system, but through the appointment of judges who really believe the Constitution really mean what its Framers intended it to mean." So declared Charles Grassley, longtime U.S. Senator (R-IA) and member of the Senate Judiciary Committee. Although uttered in 1981, Grassley's comment expresses a truth of even greater force today — if possible — as we face the pivotal elections of 2012.
But removing judges is very serious step indeed and one about which we must understand more - its nature, sources, conditions, etc. The Constitution says little specifically about this vital matter — Article III (where the cessation of "life" or "good behavior" are listed as being the reasons for judicial removal) and Article I (where the removal power is vested in Congress). If judges are removed for "bad behavior," the mechanism employed is the impeachment process in which the U.S. House investigates and charges a judge (this technically constitutes an "impeachment") and the Senate determines the judge's guilt or innocence of those charges. The Constitution further stipulates that impeachment and removal of "all civil officers of the United States" shall be for "Treason, Bribery, or other High Crimes and Misdemeanors."
In America, "high crimes and misdemeanors" have been more clearly defined than was indicated in the news blitz surrounding the impeachment of Bill Clinton. Experts of both the founding generations and recent years have asserted that the constitutional phrase covers "abuse of power," "injury to the state," "abuse or violation of public trust," and "usurpation of authority." One of the most authoritative definitions of "high crimes and misdemeanors" was articulated in 1974 by the impeaching agency, the U.S. House, when it declared that impeachable offenses are "constitutional wrongs that subvert the structure of government or undermine the integrity of office and . . . the Constitution itself . . . ."
Furthermore, there is a long and honorable history of impeachment action in the English Common Law in which our Constitution is moored and from which definitive guidance can be derived as to the meaning of our Constitution's provisions. Judges have been impeached in England since at least 1383 A.D.; and frequent grounds for these impeachments were "bad judging" (e.g., "grave misuse of one's official position," "misleading the sovereign by unconstitutional opinions," etc.).
The responsibility for personnel management of federal judges, including both their removal and their selection, is placed squarely and firmly in the hands of the Congress and, therefore, ultimately in the hands of us as citizens. But how well have we exercised our responsibilities? Admittedly, impeachment is a device mainly intended for use with individual judges. America's judicial problems today are institutional — Reconstructionism is infecting the judiciary as a branch of government, not just a few bad judges. But impeachment of the most flagrant judicial violators of the Constitution should be considered — to remove the most powerful Reconstructionist judges would be valuable of itself and could send a signal to other Reconstructionist judges that their anti-constitutional rampage must end, as suggested earlier.
History, however, reveals the impotence of the impeachment power thus far as a means of curbing the injustices of Humanistic judges in the U.S. The first impeachment investigation of a federal judge occurred when the ink was barely dry on the Constitutional document. In 1795, Judge George Turner was investigated but not impeached. Shortly thereafter, however, U.S. District Judge John Pickering was impeached, convicted, and removed from office in 1804. In America to date, fewer than a dozen federal judges have actually been impeached, convicted, and removed from office.
Thus, with judicial removal as with judicial selection, the constitutional tools intended to curb runaway judges have been severely neglected. A zealous Congress activated by an impassioned public can do much to reverse this constitutional disaster. Unless or until that happens, the powers of the courts will continue to ignite the fires of controversy throughout our society and legal system. We must deliver this message to candidates all across America in the campaigns for the 2012 elections.