A growing appetite for impeaching judges
The charges against the sitting justices largely stem from accusations that they mismanaged funds and used government resources – like state vehicles – for personal use. Now that the justices have been impeached by the House, the dispute moves to the Senate for trial. From there, it will require a two-thirds vote to remove them from office.
Some West Virginia lawmakers oppose mass impeachment. They argue that it is an improper overreach by the legislature because the state constitution gives the court control over its spending (an issue facing West Virginia voters in November). Additionally, they note that the state’s independent judicial investigation commission previously cleared three of the four justices of ethics violations.
Some also claim that the push for impeachment has more to do with politics than ethics. They cite that although the judiciary committee had floated impeachment throughout the year, actual articles of impeachment were not introduced by Republican delegates until just days before the state’s special election deadline, ensuring that any subsequent court vacancy would be filled by Republican Governor Jim Justice and not by voters this fall. (In a dramatic move, one impeached justice, Robin Davis, purposefully retired hours before the deadline in order to trigger a special election for her judicial seat.) They also note that scores of influential Republicans – including Congressman Evan Jenkins and state House Speaker Tim Armstead – announced their candidacies for the court soon after the delegates’ impeachment vote.
Yet despite the political chaos in West Virginia, the practice of impeaching and removing judges is rare and has typically followed instances of serious ethical breaches or criminal wrongdoing. The most recent impeachment and removal of a state judge appears to be in 1994, when Pennsylvania Supreme Court justice Rolf Larsen was removed for deciding to accept cases based on an attorney-friend’s recommendation. At the federal level, most recently in 2010, Congress removed G. Thomas Porteous, Jr. for accepting bribes and making false statements under oath.
The strict tradition of removing judges for only serious breaches of duty follows the partisan impeachment – and acquittal – of Supreme Court Justice Samuel Chase in 1805. The late Chief Justice William Rehnquist later wrote that since then, it “has been the guiding principle” that “judges have been impeached and convicted – happily, only a very few – but it has been for criminal conduct such as tax evasion, perjury, and the like.”
But recent political trends suggest that politicians today are more willing to impeach judges for things beyond bad acts. A 2010 report by the National Center for State Courts, for example, identified twenty-five instances of state legislatures threatening to impeach judges for rulings they made or introducing bills that made certain legal findings an impeachable offense. A report the following year identified more examples, including an Arizona bill that would have made it an impeachable offense for judges to cite “religious” or “foreign law.”
The most recent example of lawmakers seeking to impeach judges for political reasons is this year in Pennsylvania. In January, the Pennsylvania Supreme Court ruled that the state’s gerrymandered congressional map violated its state constitution and ordered it to be redrawn. In response, State Representative Cris Dush introduced resolutions to impeach each of the five justices who found the map unconstitutional. Ultimately, Republican state leadership rejected the resolutions and a last-ditch emergency appeal of the ruling to the Supreme Court was denied.
Moreover, the itch to impeach judges is not just limited to state lawmakers. Pennsylvania Congressman Ryan Costello (R-Pa.) also called for the same five Pennsylvania justices to be impeached, and Sen. Pat Toomey (R-Pa.) agreed that impeaching the justices was “a conversation that [needed] to happen.” The 2016 GOP Platform itself “encourage[ed] Congress to use the check of impeachment for judges who unconstitutionally usurp Article I powers” but it leaves any specifics as to what might “usurp” Congress’s powers to the political imagination. And in response to the political bedlam in West Virginia, Iowa Congressman Steve King tweeted, “[w]hy not impeach judges who defy the original text [and] intent of the Constitution?”
Lawmakers’ eagerness to impeach judges for things beyond serious ethics violations or criminal acts is alarming and threatens an independent judiciary. There are already many ways for legislators to politically shape the judiciary. They can publicly criticize or censure judges. They can change the laws the judiciary interprets. They can refuse to confirm judges (or in states where judges are elected, campaign against them). And they can even push to limit courts’ jurisdictions. Impeachment, though, should not be in their political toolkit.
In West Virginia, some of the allegations may warrant impeachment. Time will tell. But lawmakers should remember that impeachment is a remedy for bad apples, not a hammer to strike unruly nails. Like a rubber band, if impeachment is too often stretched to satisfy short-term political gains, it will never return to its original, intended shape.