The Corner

Impeachment of Judges

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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