Impeachment as Judicial Selection?

Article excerpt

Ideological judicial selection encompasses more than the affirmative nominating, confirming, and appointing of judges who pre-commit to particular legal interpretations and constructions of constitutional text. It may also include deselection by way of impeachment and removal (or at least its threat) of judges subscribing to interpretations and constructions of the Constitution that one disapproves. This negative tactic may be particularly effective when deployed against judges on closely divided collégial courts, such as the U.S. Supreme Court and the U.S. courts of appeals, where personnel determine voting majorities and, in turn, majorities determine case outcomes. The Pickering-Chase, Fortas-Douglas, and Christian Coalition impeachments and threats of impeachment illustrate that the use or threat of this tactic is more common than might be supposed. Indeed, recent calls for the removal of Circuit Judge Jay Bybee demonstrate the continuing allure of impeachment as judicial selection.

This Article examines the phenomenon of impeachment as judicial selection through Professors Tushnet's and Balkin's framework of "constitutional hardball." In the case of impeachment as judicial selection, Congress plays constitutional hardball by claiming that it is an appropriate tool for political control and a fraternal twin to the modern appointments process. This Article details prior episodes of impeachment as judicial selection. It explains why the idea of impeachment as an ex post selection tool proves so tempting. It then considers those legal arguments that justify and contest the claims of this variety of constitutional hardball. Further, the Article makes the case that, contrary to conventional wisdom, constitutional and political developments make impeachment a closer alternative to transformative, affirmative selection than in the past. This relative feasibility heightens the fool's gold allure of impeachment as judicial selection. Actually impeaching for judicial selection, however, would yield results that many would consider as untoward and unacceptably intruding on judicial independence and the mie of law. This Article briefly considers those significant costs.

INTRODUCTION ................................................. 597

I. THE PHENOMENON OF IMPEACHMENT AS JUDICIAL SELECTION ......... 599

A. Impeachment as Constitutional Hardball ...................... 600

1. The Theory and Practice of Constitutional Hardball ........... 600

2. The Tactic of Impeachment as Judicial Selection ............. 602

B. The Re-emerging Tactic of Impeachment as Judicial Selection ..... 604

1. Judge John Pickering and Justice Samuel Chase ............. 604

2. Justices Abe Fortas and William Douglas ................... 605

3. Judges Baer, Sarokin, and Other Democratic Judges .......... 607

4. Judge Jay Bybee ...................................... 612

?. The Temptation of Impeachment As Judicial Selection ......... 614

A. Ex Post Appointment Informational Advantage ................. 614

B. Transformative Change in Judicial Personnel .................. 618

C. Shifting First-Mover Advantage: Congress as First Mover ........ 620

III. THE LEGAL ARGUMENTS FOR AND AGAINST IMPEACHMENT AS JUDICIAL SELECTION ................................................. 622

A. Arguments for Impeachment as Judicial Selection ............... 623

1 . Constitutional Text .................................... 623

2. Structure ............................................ 624

3. Post-ratification Historical Practice ........................ 626

4. Purpose - Democratic Constitutionalism ................... 628

B. Arguments Against Impeachment as Judicial Selection ........... 628

1 . Constitutional Text .................................... 628

2. Structure ................................ …