N. Lee Cooper

Stop the threat to judges now

by N. Lee Cooper

For more than two centuries, the separation of powers between the three branches of government has worked to protect and defend freedom in our nation. Now, some members of Congress seem poised to destroy this delicate balance by attempting to use the process of impeachment -- or, at least, the threat of impeachment -- to impose the will of Congress on the judiciary. The majority whip of the House of Representatives has been quoted in media interviews naming specific federal judges targeted for impeachment.

The U.S. Constitution provides that public officials can be impeached only for "treason, bribery, or other high crimes and misdemeanors." None of the judges identified and targeted for impeachment in the current proposal have been accused of treason or any other criminal act. Rather, they have been singled out because of highly publicized rulings they have made, rulings with which the majority whip and some in Congress do not agree.

The use or threatened use of impeachment as a means to express disagreement with a particular decision is unprecedented in the history of the United States. The process of impeaching a federal official was intended by the founders to be difficult. In the entire history of our nation, the House of Representatives has voted to impeach a federal judge only 13 times; only seven federal judges have actually been convicted in a trial before the Senate and removed from office.

More important, in more than 200 years, no federal judge has ever been removed from office because Congress disagreed with the judge's judicial philosophy or with a particular decision. Let's not begin now to trample on the constitutional rights of American citizens.

Impeachments based on policy differences would interject chaos into our court system. Judges, whom we expect to decide cases based on a careful examination of the facts and thoughtful analysis of applicable law, would be subjected instead to the vagaries of shifting political currents. Any federal judge threatened with this sort of partisan bashing might be tempted to act on matters not based on the applicable law; rather, the standard might become the prevailing winds of political popularity.

The history of our nation is marked with examples of our courts working independently, free from political intrusion and oversight, to lead our nation in times of need -- in ending the vicious practices of desegregation, in extending voting rights to all Americans, and in protecting average citizens from unwarranted government intrusion. This is a record deserving our great pride.

The genius of the American system of government is the delicate balance that has been crafted between and among the three independent branches. Moving to impeach judges for individual decisions -- a kind of legislative referendum on judicial decision-making -- threatens to destroy this delicately crafted balance. In a sense, it would mark a departure for our nation -- a ripping up of our Constitution and all its values. It is a recipe for disaster that could pull the plug on our constitutional democracy.

N. Lee Cooper is the president of the American Bar Association.