August 13, 2003
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Remarks of the Chief Justice to the Federal Judges Association (William Rehnquist, 5/5/2003)Congress ... may not threaten the established principle that a judge's judicial acts cannot serve as a basis for his removal from office....
This principle [that federal judges may not be removed from office for their judicial acts] is not set forth in the Constitution, which does grant federal judges tenure during good behavior and protection against diminution in salary. But the principle was established just about two centuries ago in the trial of Justice Samuel Chase of the Supreme Court by the Senate. Chase was one of those people who are intelligent and learned, but seriously lacking in judicial temperament. He showed marked partiality in at least one trial over which he presided, and regularly gave grand juries partisan federalist charges on current events.
For this the House of Representatives, at President Thomas Jefferson's instigation, impeached him, and he was tried before the Senate in 1805. That body heard fifty witnesses over a course of ten full days. The Jeffersonian Republicans had more than a two-thirds majority in the body, and if they had voted as a block Chase would have been convicted and removed from office. Happily, they did not vote as a block; the article on which the House managers obtained the most votes to convict was the one dealing with his charges to the grand jury; there the vote to convict was nineteen to fifteen, a simple majority but short of the requisite two-thirds vote needed to convict.
The significance of the outcome of the Chase trial cannot be overstated -- Chase's narrow escape from conviction in the Senate exemplified how close the development of an independent judiciary came to being stultified.... The political precedent set by Chase's acquittal has governed that day to this: a judge's judicial acts may not serve as a basis for impeachment.
It is true that it has not been the practice of Congress to impeach judges for improper judging. But for over 200 years it was the practice of Congress never to filibuster judicial nominees, and last year that practice fell. As Justice Rehnquist points out, there is no legal reason why Congress cannot impeach a judge for bad judging. I respectfully disagree with his contention that a moral principle argues against it.
We are supposed to be governed by a rule of law, not of men. For this to work, everyone must submit to the law, including judges. And if they refuse, the rest of society and government should have a way to check their lawlessness. Presidents and Congressmen are subject both to elections and to impeachment or ejection. It is entirely appropriate that there should be a check against sitting judges.
What if five Supreme Court judges fancied themselves dictators and tried to impose a Nazi autocracy upon us? Would our only recourse be to wait for them to die? Since Justice Rehnquist presumably believes that judicial orders should be obeyed, should we submit to a Nazi dictatorship?
This hypothetical shows the limitations of Rehnquist's "principle." It is a question of drawing lines, not of principle; or, if you like, the principle of judicial independence competes with the principle of judicial submission to the law, and the two principles must be balanced by the Congress in deciding whether or not to impeach a judge for bad rulings.
In the past, judges have, for the most part, not crossed the line -- and when they did, as in Dred Scott, their opponents lacked the supermajorities needed to impeach. But the judiciary may degenerate, and public opinion may deliver the requisite two-thirds in the Senate. If so, let the bad judge be removed!