The Right Coast

May 23, 2005
 
The Law Deans and Judicial Independence
By Gary Lawson

On May 10, 2005, a gaggle of law deans sent a letter to Congress complaining about criticism of the judiciary. In particular, the deans were hot and bothered by intimations that judges might suffer consequences, and perhaps even impeachment proceedings, as a result of their decisions. The letter’s conclusion regarding the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” The letter’s argument in support of this conclusion about the constitutional power of Congress to discipline rogue federal judges was that “[r]ecent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers . . . . [I]t is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.” No, wait -- that was the conclusion. No, wait -- that was the argument. No, wait -- that was the conclusion . . . .

Surely I must have left something out. Surely such a distinguished group of academic minds could not have neglected to include anything remotely resembling an argument for an important proposition of constitutional law in a well-publicized letter to Congress. Let’s look at the full text to see what I missed:

Recent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers. We strongly oppose these threats of retaliation. Regardless of whether we agree or disagree with their opinions, we express our full support for judges who properly discharge their constitutional responsibilities by deciding the cases before them as they believe the law requires.

We recognize that Americans will often disagree, as do we, with particular judicial opinions. But the legislative and executive branches have constitutional means available to them to seek to alter the law as declared by the judiciary. An effort to use those means is part of our tradition of separation of powers and is entirely proper. But it is irresponsible and harmful to our constitutional system and the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings. We urge them to stop.
Well, that certainly tells us what the law deans oppose, express, support, recognize, and urge. But there is nothing in this statement that communicates to any modestly intelligent creature why any reasonable person would oppose, express, support, recognize, and urge such things. This is not a minor omission. The Constitution permits impeachment and removal of “all civil Officers of the United States” for “Treason, Bribery, or other high Crimes and Misdemeanors,” and specifies that federal judges “shall hold their Offices during good Behaviour.” Do these provisions permit Congress to impeach and remove judges for issuing ludicrously bad decisions? One might expect a letter addressed to that subject to devote an odd sentence or two to the constitutional provisions involved; after all, if those provisions do indeed give Congress power to impeach and remove judges for mangling the law beyond recognition, then it is hard to see how mentioning such a power could “harm the rule of law and the important constitutional principle of separation of powers.”

Is it self-evident that judges cannot be impeached for rendering absurdly stupid decisions? Suppose that a judge decides cases based on the names of the parties by always ruling in favor the party with the largest number of letters in his or her last name (with appropriately imbecilic tiebreakers to handle the occasional Lawson v. Leiter dispute). Or suppose that a judge decides cases based on race. If it is not beyond the realm of conceivability that these could be impeachable offense, it is not a huge leap to conclude the same about a judge who decides cases based on the political platform of the liberal wing of the Democratic Party (or the conservative wing of the Republican Party) rather than on the law as it objectively exists.

My point here is not that it is permissible to impeach and remove federal judges for issuing ludicrously stupid decisions. (I do believe that it is permissible, but that is not my point here.) My point, rather, is that the law deans’ letter fails to make anything recognizable as an argument for its rather boldly proclaimed assertions of constitutional law. If this is what our deans regard as legal reasoning, it is no wonder that we have a generation of legal minds who think it obvious that the Constitution guarantees the right to suck out a baby’s brains.

Note: Our friend Gary Lawson is a law professor at Boston University.