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Impeachment and Removal of Judges: An Explainer
Earlier this week, 12 Pennsylvania state legislators filed resolutions to impeach four of the state’s supreme court justices, following the court’s decision to strike down the state’s congressional map as a partisan gerrymander prohibited by the state constitution. This is not the first time partisan disagreement over a court decision has led to impeachment threats. But if the legislators follow through, they would toss aside a centuries-old understanding that if the impeachment power is used to punish judges for their rulings, it undermines the vital independence of our judicial branch. Here’s what you need to know about impeachment:
What is judicial impeachment?
Impeachment is a process by which the political branches of government – usually the legislature – can remove judges from office. Because the impeachment power lies primarily in the hands of politicians, it is at times threatened for partisan reasons, but the impeachment and removal of judges is in fact rare and usually limited to grave ethical or criminal misconduct such as perjury, fraud, or conflicts of interest.
How does the impeachment process work?
Federal and state constitutions provide different mechanisms for impeachment of judges, but impeachment is generally a two-step process.
With respect to federal judges, under Article I of the United States Constitution, the House of Representatives has the power to impeach, and the Senate the power to hold a trial to determine whether removal is appropriate. The House can impeach a judge with a simple majority vote. However, a judge may only be removed from office following a trial and a vote to convict by a two-thirds majority of the Senate.
Most states’ procedures for the impeachment and removal of judges are similar to the federal approach (see Pennsylvania, for example), requiring a majority vote of the lower house in the legislature and a two-thirds vote of the upper house. But in some states (including New York and Nebraska), the trial following impeachment is conducted by a court comprised of state officials and/or state judges. And in others the number of votes required to impeach or convict differs.
How common is it to impeach judges?
Impeachment of judges is rare, and removal is rarer still. With respect to federal judges, since 1803, the House of Representatives has impeached only 15 judges – an average of one every 14 years – and only 8 of those impeachments were followed by convictions in the Senate. Justice Samuel Chase is the only Supreme Court Justice the House has impeached, and in 1805 the Senate acquitted Chase.
Impeachment in the states has been similarly rare. A review of studies by the American Judicature Society and the National Center for State Courts, as well as news articles, reveals just two instances of a state judge being impeached in the last 25 years. In 1993-94, Pennsylvania impeached and removed the first and only judge in its history, Supreme Court Justice Rolf Larsen, and in 2000 New Hampshire impeached, but the state senate declined to remove, Supreme Court Justice David Brock.
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There are more instances, however, of legislators unsuccessfully calling for the impeachment of a judge. In just the last four years, legislators in at least three states have introduced legislation calling for at least an investigation into whether a sitting judge should be impeached: In New Hampshire, HR 7 (2015) proposed investigating whether Judge Jacalyn Colburn had overstepped her authority in instructing the state to spend money to print a ballot measure; in Pennsylvania, HR 389 (2016) proposed investigating Judge Kelly Ballentine for dismissing her own parking tickets and failing to file tax returns; and in West Virginia, HR 4 and SR 44 (2018) called for investigation of Supreme Court Justice Allen Loughry II’s excessive spending on office renovations and improper use of state property.
What conduct constitutes grounds for impeachment?
The United States Constitution provides little guidance as to what offenses constitute grounds for the impeachment of federal judges: as with other government officials, judges may be removed following impeachment and conviction for “Treason, Bribery, or other high Crimes and Misdemeanors,” otherwise, under Article III, Section 1, judges “shall hold their Offices during good Behaviour.”
Has a U.S. Supreme Court justice ever been impeached?
Supreme Court justices serve for life, unless they resign, die or are impeached and removed from office. The reason for their lifetime tenure is to enable them to make decisions free from any pressure by the executive or legislative branches of government. Since the Supreme Court first convened in 1790, there have been 112 justices and only one ever has been impeached.
In 1804, the U.S. House of Representatives voted to impeach Associate Justice Samuel Chase. A signer of the Declaration of Independence, Chase was appointed to the U.S. Supreme Court by President George Washington in 1796. A Federalist, Chase irked Thomas Jefferson and his Republican allies in Congress, and was impeached on politically motivated charges of acting in a partisan manner during several trials. However, in 1805 Chase was acquitted by the Senate, a decision that helped safeguard the independence of the judiciary. He served on the court until his death in 1811.
In 1969, Abe Fortas became the first—and, to date, only—Supreme Court justice to resign under the threat of impeachment. Named to the court by President Lyndon Johnson in 1965, Fortas was forced to step down due to financial improprieties that involved him agreeing to act as a paid consultant to the family foundation of a man under investigation for securities fraud.
In addition to Samuel Chase, 14 other federal judges (who are appointed by the president and confirmed by the Senate) have been impeached over the course of American history, on charges ranging from drunkenness on the bench to accepting bribes. The first impeachment was in 1803 and the most recent was in 2010. Eight of the jurists were convicted by the Senate and removed from office, while three were acquitted and three resigned.
Impeachment Trial of Justice Samuel Chase, 1804-05
On November 30, 1804, for the third time in its brief history, the Senate began preparations for an impeachment trial. In 1798 and 1799, the Senate had tried a senator previously expelled on grounds of treason. The Senate dismissed the case, citing lack of jurisdiction. The second impeachment trial, in 1804, removed a federal judge for reasons of drunkenness and insanity. More than the first two proceedings, however, this third trial challenged the Senate to explore the meaning of impeachable crimes.
Samuel Chase had served on the Supreme Court since 1796. A staunch Federalist with a volcanic personality, Chase showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801. Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice.
The House voted to impeach Chase on March 12, 1804, accusing Chase of refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had “behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard.” Highlighting the political nature of this case, the final article of impeachment accused the justice of continually promoting his political agenda on the bench, thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.”
On November 30, 1804, the Senate appointed a committee to “prepare and report proper rules of proceedings” for the impeachment trial. When they took up the case against the Federalist justice in January 1805, the Senate consisted of 25 Jeffersonian Republicans and nine Federalists. Chase appeared before the members on January 4, 1805, to answer the charges. He declared that he was being tried for his political convictions rather than for any real crime or misdemeanor and requested a one-month postponement to prepare a defense. The Senate agreed and the trial began in earnest on February 4.
Chase’s defense team, which included several of the nation’s most eminent attorneys, convinced several wavering senators that Chase’s conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts. A majority voted guilty on three of the eight articles, but on each article the vote fell far short of the two-thirds required for conviction. The Senate thereby effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions. Chase resumed his duties at the bench, where he remained until his death in 1811.