The quest to impeach federal Judge Jay Bybee has moved beyond the blogosphere, with former President Clinton's chief of staff and a chorus of lawmakers calling for his ouster. They cite Judge Bybee's previous work as head of the Justice Department's Office of Legal Counsel, where he helped produce memos that green-lighted harsh treatment of prisoners at Abu Ghraib, Guantánamo, and elsewhere.
There's no doubt that the policies Bybee helped write spawned detainee suffering. Had the memos been public during his hearing, it's hard to imagine him being confirmed. But turning impeachment into a litmus test for revulsion over prisoner abuse is a constitutional mistake – and a political one as well.
Nobody should be above the law, but it's important to understand that impeachment was made cumbersome in order to discourage efforts to remove judges for partisan purposes. That's why so few judges have been impeached. Over two centuries, congressional interpretation of the Constitution has evolved to limit impeachment to occasions where there is a general consensus that the judge has committed a "crime" or "misdemeanor" serious enough to constitute a breach of the public trust. This high standard insulates courts from political pressure even when lawmakers find judges' views to be disagreeable.
The Constitution gives the courts extra breathing room, even in stormy or disagreeable circumstances. For example, after flirting with more partisan motives in the early 19th century, Congress has held off on impeaching judges on account of their decisions. And no federal judge has been impeached for conduct that took place before taking the bench, including legal work for the government.
It's not easy for Congress to discipline itself to keep partisan politics out of the courts. Unraveling that consensus, by attempting to impeach a judge before he or she is found guilty of a crime in court, could trigger an endless blood feud of politically motivated impeachments.
It was not so long ago that back in 2005 then-Congressman Tom DeLay was calling for widespread impeachment of judges, bragging about a file cabinet full of targets and saying that judges "need to be intimidated." Organizers of national "Justice Sunday" rallies called judges more threatening than terrorists.
In two states, lawmakers began moving toward impeaching judges after cable TV hosts assailed their criminal sentencing decisions. The frenzy reached a peak when majorities of both parties answered political pressure by passing a bill tampering with Terri Schiavo's end-of-life case.
In Bybee's case, so far, Congress has taken a different tack. It has wisely not moved to unseat him based on what is known. Meanwhile, lawmakers are using the impeachment process appropriately in two other cases, preparing potential impeachment proceedings against two judges who have been indicted on criminal charges.
Bybee can be prosecuted if the evidence warrants. Those who are appalled by his executive branch legal advice can pressure Congress or other fact-finders to scrutinize it for evidence of wrongdoing.
Impeachment could be merited if it is proved he committed a crime or lied at his confirmation hearing, or if a genuine bipartisan consensus emerges that he lacks the legal skills or integrity to render justice. In certain situations, impeachment investigations could also be warranted based on serious law enforcement inquiries.
But impeachment is the atomic bomb of American politics. Lawmakers need to take a deep breath before going nuclear, and think about whether they want their own favorite judges to face the fire next time.
Bert Brandenburg is executive director of the Justice at Stake Campaign.