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Impeachment of Judges



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I believe the editors of NRO are far too dismissive of the
importance of impeachment as a check on a runaway judiciary, where they
conclude that in today’s editorial that “impeachment makes no sense as a
remedy for the defects of the modern judiciary.” Certainly, the
authors of the Constitution did not think it madness. Alexander
Hamilton may have lacked the jaded foresight necessary to foresee the
degree to which the modern judiciary would encroach on legislative
judgments, when he wrote in Federalist No. 81 that those encroachments
would “never be so extensive as to amount ot an inconvenience, or in any
sensible degree to affect the order of the political system.” But his
extended reasoning for reaching that conclusion reinforces the validity
of impeachment as an option for a runaway judiciary:

[T]he inference [that the danger of judicial encroachment was
limited] is greatly fortified by the consideration of the important
constitutional check which the power of instituting impeachments in one
part of the legislative body, and of determining upon them in the other,
would give to that body upon the members of the judicial department.
This is alone a complete security. There never can be danger that the
judges, by a series of deliberate usurpations on the authority of the
legislature, would hazard the united resentment of the body intrusted
with it, while this body was possessed of the means of punishing their
presumption, by degrading them from their stations. While this ought to
remove all apprehensions on the subject, it affords, at the same time, a
cogent argument for constituting the Senate a court for the trial of
impeachments.

That impeachment might be a “complete security” for an
out-of-control judicary suggests that legislators who refer to it as a
constitutional check are not completely off-base. Naturally, the
circumstances for using such a constitutional mechanism would have to be
dire. But by dismissing this as a real constitutional option, my
friends at NRO are exacerbating the very threat that Hamilton thought
non-existent.



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