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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.
 

Saturday, January 01, 2005

From the Los Angeles Times (by way of Drudge), nonsense on stilts. Here's an excerpt:

WASHINGTON — Ailing Chief Justice William H. Rehnquist said today that judges must be protected from political threats, including from conservative Republicans who maintain that "judicial activists" should be impeached and removed from office.
 
"The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction," the chief justice, whose future on the court is subject to wide speculation, said in his traditional year-end report on the federal courts.
 
The public, the press and politicians are certainly free to criticize judges, Rehnquist said, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.
 
His comments come as the new Congress faces what many predict will be a contentious battle over President Bush's nominees to the federal bench. And if Rehnquist's health forces him to announce his retirement, there would be more partisan wrangling over his successor.
 
...
 
A judge's judicial acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence," Rehnquist said. "Instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."

Rehnquist has forgotten that bit about "checks and balances." By the Framers' design, each of the branches of government have a check upon the others. The impeachment power is one of Congress' checks upon the Supreme Court, and Congress requires neither approval nor permission from either the Supreme Court or the President in order to exercise it, for any reason or no reason. If Congress elects to remove Rehnquist because they think those fatuous Gilbert-and-Sullivan chevrons detract from the dignity of the Judiciary, no other power under the Constitution can keep him on the Court.

It has been a long, long time since the Federal courts were concerned only with "apply[ing] the law fairly, regardless of public opinion." Since the courts are more and more intent upon playing a political role, they have no complaint -- at least, no honest complaint -- to make if the other branches start treating them as political players.

"A judge's judicial acts may not serve as a basis for impeachment." Nonsense. Of course they can. If, say, the Ninth Circuit took it into its collective head to set the Supreme Court at defiance, deciding matters according to its own predilections and ignoring contrary rulings from the Supreme Court, presumably Rehnquist would see nothing wrong with Congress stepping in to clean house in San Francisco; it would make no difference that it were only judicial acts that were complained of. Federal judges have been impeached and removed before now for bribery; presumably Rehnquist would not see them still warming the bench, merely because their judicial acts were inseparable parts of their offenses. And if a majority of the Justices, in a formal opinion, were to overturn the result in Hayburn's Case, ruling that Congress could sit as a formal Court of Errors over the Supreme Court itself, I think it's safe to assume that Rehnquist would welcome the impeachment and removal of said majority, judicial acts or no.

And there is a special measure of chutzpah in that "regardless of public opinion" bit. I've lost count of the number of outrageous Supreme Court opinions I've read, the "justification" for which was set out in terms of nothing more than public opinion. The Court has no principled complaint to make, now, if public opinion should run in directions it doesn't like.

There are at least six members of the current Court that ought to be impeached and removed for blatant judicial malfeasance. That this has not happened is due to Congress, which has, in this matter, more respect for the Constitutional Design than do the Justices.

-- posted by Clayton 1/01/2005 04:29:00 PM


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