What Would the Founding Fathers Say?

More than 200 years ago, the founders of this nation created a form of government that masterfully provided checks and balances to ensure individual liberties and prevent tyranny by the majority.

The separation of powers among three branches of government - the executive, the legislative, and the judiciary - was the most innovative and significant feature of the federal government created in Philadelphia. 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.

Now, some conservative 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 House Republican whip, Rep. Tom Delay of Texas, has named specific federal judges targeted for impeachment.

Among them is Thelton E. Henderson of the Federal District Court in San Francisco, who has blocked implementation of Proposition 209, the measure passed by California voters last year to end all race- and sex-based preferences in state hiring and college admissions. Another person named by Mr. Delay is Harold Baer Jr. of the Federal District Court in New York City, who suppressed evidence in a Washington Heights drug case last year.

In high school civics class we learn that the United States 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 has been accused of treason or any other criminal act. 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 disagreement over decisions and judgments. Members of Congress could impeach other members simply because they did not agree with their voting records. Congress could impeach the president over a policy disagreement. Congress also would be so tied up in these activities that it would make our current system of "gridlock" look very attractive.

Impeachment, or the threat of it, as a means to express disagreement with a decision, is unprecedented in the US. The process of impeaching a federal official was intended by the founders to be difficult. The House has voted to impeach a federal judge just 13 times; only seven federal judges actually have 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 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 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.

A 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 isn't the justice system Americans want or deserve.

Our founders intended for the courts to operate independently, 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 free from political intrusion and oversight, to lead our nation in times of need - in ending segregation, in extending voting rights to all, and in protecting average citizens from unwarranted government intrusion.

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 reasons - a kind of legislative referendum on judicial decisionmaking - threatens to destroy this balance. In a sense, it would mark a departure for our nation - a ripping up of our Constitution and its values. It is a recipe for disaster.

FEDERAL JUDICIARY

Who, What, Why, When Of Impeachment

hat constitutes grounds for impeaching a federal judge?

"Treason, bribery, or other high crimes and misdemeanors" are the only grounds for impeachment provided in the Constitution. The separate provision in Article III that "judges shall hold their office during good behavior" has never been considered a basis for removal, but rather a guarantee of independence for an indefinite term. While "high crimes and misdemeanors" are not limited to indictable offenses, it is clear that a judge issuing an opinion is doing his or her job, not committing a crime.

Can federal judges be impeached for making bad decisions?

In August 1993, the congressionally created National Commission on Judicial Discipline and Removal reported that Congress had removed judges for various forms of official and personal misconduct, but that it had not done so because it disagreed with the outcome of cases. In 1986, former Rep. Robert Kastenmaier (D) of Wisconsin, as chairman of the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice, said, "Federal judges should not and cannot be impeached for judicial decisionmaking, even if a decision is an erroneous one. The conduct complained about - entering a judgment and order - is an act that judges are required to do under the Constitution.... If this was otherwise, the impeachment remedy would become merely another avenue for judicial review."

Are judges accountable for their decisions?

Judges are required to explain their decisions in writing. Decisions are subject to appellate review and reversal if errors were made affecting the outcome of the case. If a litigant feels a judge has made an error in deciding the case, a separate, impartial panel of judges will review the record and make its own decision. Judges can be and are disciplined by their judicial councils for misconduct or mental disability.

Have any federal judges ever been impeached?

In the history of our nation, the House has voted to impeach 13 federal judges. Only 11 were tried; seven were convicted and removed from office. No judge has been removed from office because Congress disagreed with the judge's judicial philosophy or with a decision. Three impeachments between 1986 and 1989, of district court judges Alcee Hastings, Walter Nixon, and Harry Claiborne, were based on criminal prosecutions.

* N. Lee Cooper is president of the American Bar Association.