Bench Memos

Ford, the Court, and Impeachment

I think Lyle Denniston of SCOTUSBlog is unjust to Gerald Ford in the remarks to which Jonathan Adler links below. Denniston criticizes this statement of Ford’s, made on the floor of the House on April 15, 1970: “an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office.” Denniston characterizes this as “an open-ended definition” that could “well be an invitation to mischief,” since members of Congress following Ford’s lead might conclude that there are “no objective standards to guide political judgment” and might therefore engage in “reckless” calls for impeachment of judges. Denniston’s last word is that “part of the Ford legacy” is the suggestion that “Supreme Court Justices whose decisions do not meet with political favor” may be impeached.

But this conclusion from Ford’s 1970 speech is not justified by the speech itself, and can only be reached by ripping the “whatever a majority . . . considers” quote from its context. Ford’s subject that day was the impeachable offenses of Justice William O. Douglas, and Ford had a pretty good case that Douglas was a fit candidate for removal from the bench for serious ethical improprieties. Before coming to the details of Douglas’s offenses, though, Ford discussed at some length the reasons why impeachment was not limited the category of strictly criminal offenses, and practically no one today disagrees with his conclusion that “an offense need not be indictable to be impeachable.” (In 1998-99, opponents of President Clinton’s impeachment sometimes veered perversely toward claiming that an offense that was indictable was therefore not impeachable!) It was in the midst of this discussion, while noting that few precedents or fixed rules could govern the judgment of Congress that removal was warranted, that Ford made the statement that Denniston quotes. But it is nothing more or less than a statement of fact that, in the mixed environment of legal and political judgments that are necessarily entailed in any case where impeachment is considered, the final, unreviewable authority on whether charges are warranted is a majority of the House, and on whether conviction and removal are warranted, two-thirds of the Senate.

That Ford did not advocate an “anything goes” approach to impeachment is plainly evidenced in the speech, both by the care with which he laid out his case against Douglas, always distinguishing between the justice’s votes on the bench and his behavior elsewhere, and by this perfect disavowal of the very thing Denniston accuses Ford of being open to: “I would never advocate action against a Member of [the Supreme] court because of his political philosophy or the legal opinions which contributes to the decisions of the court. . . . Probably I would disagree, were I on the bench, with most of Mr. Justice Douglas’[s] views . . . But a judge’s right to his legal views, assuming they are not improperly influenced or corrupted, is fundamental to our system of justice.”

Denniston’s criticism is, therefore, quite misplaced. If he wants to find an advocate of the impeachment of judges for the decisions they make, he’ll have to look elsewhere than the record of Gerald Ford.

He might look instead to much older sources, such as Alexander Hamilton (in Federalist 81, in 1788), or Justice Joseph Story (in his Commentaries on the Constitution, in 1833). For my part, I think Hamilton and Story had it right, and Ford (and Denniston) have it wrong. It is a perfectly sound basis for an impeachment of Supreme Court justices—perhaps the most important and justifiable basis for an impeachment—that they have, in the otherwise “ordinary” employment of their powers, usurped the rightful powers of other institutions and the rightful authority of the American people to govern themselves. (This is not the same thing as Denniston’s caricature, in which decisions just “do not meet with political favor.”) On today’s Court, there are several prime candidates for removal on this ground, starting with the Ford appointee John Paul Stevens. But there is no political will for such an undertaking.

I wish I could say Gerald Ford was on my side of this issue, along with Hamilton and Story. But he wasn’t.


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