ConfirmThem

By Paul Zummo Posted in Uncategorized — Comments () / Email this page » / Leave a comment »

I know that this blog is called Confirm Them, not Impeach Them, but Andrew McCarthy had a rather thoughtful post on impeachment earlier today on the Corner that I thought was worth noting. The question he asks and attempts to answer is, "For what egregious thing would we impeach a judge?" Here's the essence of his argument:

But if it came to it, for what would we impeach a judge? I’ve never been too impressed by the conventional wisdom that the failure to impeach Justice Samuel Chase in 1804 stands as insuperable precedent that a judge may never be impeached for unpopular rulings - even if the rulings are unpopular precisely because they far transcend the proper role of the judiciary and usurp the people's democratic prerogatives.

But, that said, how outrageous would a ruling have to be such that we would say the judge was no longer in "good Behaviour" status (Art. III, Sec. 1) and should be impeached? And should our calculation today be the same as Hamilton’s, given that Hamilton wrote before the Supreme Court seized the mantle of ultimate constitutional arbiter in 1803 - and long, long before that ruling (Marbury v. Madison) was cemented as seemingly indisputable law.

Let’s say a judge held that the logic of the "right to privacy" required government recognition of three-party marriages or of the freedom to inject heroin in the privacy of one’s bedroom? Or let’s say a judge ordered the president to pull all troops out of Iraq on the ground that our invasion was not approved by the Security Council and thus violated the UN Charter? Are those rulings impeachable?

They are surely wrong and would (one hopes) be swiftly reversed. But I suspect there is enough bad, judge-made law out there that they would not be deemed so irrational as to warrant an impeachment that two-thirds of the Senate would endorse. This only underscores that the problem we are talking about here is, to echo some of what’s been argued, cultural and systemic.

I largely agree with him, and also believe that impeachment is a last resort to be utilized when a judge has committed a criminal or highly corrupt act, or has demonstrated a lack of mental competence on the bench.
The solution is not impeachment, but to fight the good fight and ensure that honest individuals who will uphold the plain meaning of the Constitution are confirmed. Hear that, Senator Frist? It's up to you.