Federal Judges: Demigods?

By David Barton

You may recall pictures of Supreme Court Justice Ruth Bader Ginsburg sitting on the front row in Congress sleeping during President Obama’s State of the Union Address. News later broke explaining why: “I wasn’t 100% sober.”¹

A State of the Union message is a constitutionally-mandated duty (Article II, Section 3), and for those who respect the Constitution, this address is serious stuff. But apparently not to Justice Ginsburg – which probably is not surprising given that her rulings routinely reflect a general dismissal of the Constitution and that she publicly advises leaders in other nations to seek something better than the U. S. Constitution for their country.²

Regardless, it is certain that public intoxication by a Supreme Court justice does not inspire faith in the Judiciary. Luther Martin (one of the 55 delegates who framed the U. S. Constitution) warned: “It is necessary that the supreme judiciary should have the confidence of the people,”³ and to ensure this, the Founders made certain that the federal bench could be ridded of those who embarrassed or misused it.

Citizens today might be dubious of such a statement, for we have long been told (and wrongly so) that federal judges have lifetime appointments. They do not – and it was the Founding Fathers themselves who specifically stipulated that federal judges could serve only for the duration of “good behavior” (Article III, Section 1). So as long as a judge acted right, he could stay on the bench, but if he acted otherwise he could be removed. Nowhere in the Constitution is there any mention of, much less guarantee for lifetime appointments for judges.

The first federal judge to be removed from the bench came at the behest of President Thomas Jefferson. That judge, John Pickering, was no obscure lightweight. Originally placed on the federal bench by President George Washington, Pickering had been a framer of the New Hampshire Constitution, served as the state’s governor, was selected as a delegate to frame the U. S. Constitution (but declined), and was subsequently a ratifier of the federal Constitution. So why was he removed? Among the reasons given was public intoxication (as well as a public disrespect for God).⁴ The Founding Fathers considered this to be bad behavior for a judge.

Don’t think I am calling for the removal of Ginsburg for her recent faux pas. Rather, I am pointing out that the current notion that federal judges are unaccountable because they have lifetime appointments is one of the greatest lies of our lifetime.

Consider historical reasons given by Congress why federal judges should be removed from the bench:

• In 1804, Supreme Court Justice Samuel Chase was impeached for judicial high-handedness and for excluding evidence from a trial.⁵
• In 1830, federal judge James H. Peck was impeached for judicial high-handedness.⁶
• In 1862, federal judge West H. Humphreys was impeached for supporting the secession movement.⁷
• In 1904, federal judge Charles Swayne was impeached for financial improprieties and judicial high-handedness.⁸
• In 1912, federal circuit judge Robert W. Archibald was impeached for judicial high-handedness and misconduct.⁹
• In 1926, federal judge George W. English was impeached for judicial high-handedness and profanity.¹⁰

Judicial high-handedness? Yes. In fact, U. S. Supreme Court Chief-Justice John Marshall observed:

[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.¹¹

Let’s admit it. The Founding Fathers were experts on the Constitution; today’s legal professors and media pundits who claim that federal judges can only be removed for the commission of serious crimes and felonies are not. The Founders made clear that federal judges did not have lifetime appointments and were to be accountable for their behavior while on the bench.

If America ever again expects the federal courts to be just one of three so-called “co-equal” branches rather than the supreme branch they have become, then we must recover the notion that our federal judges are not unaccountable demigods.

Thomas Jefferson’s warning from two centuries ago is still very much alive for us today:

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal.¹²

Endnotes

¹ Richard Wolf, “Justice Ginsburg: Not ‘100% sober’ at State of the Union,” USA Today, February 13, 2015.

² “Ginsburg to Egyptians: I wouldn’t use U.S. Constitution as a model,” Fox News, February 6, 2012.

³ James Madison, The Papers of James Madison…And His Reports of Debates in the Federal Convention (Washington: Langtree & O’Sullivan, 1840), Vol. II, p. 1166, July 21, 1787, Luther Martin.

⁴ The Debates and Proceedings in the Congress of the United States (Washington: Gales and Seaton, 1852), Eighth Congress, First Session, 322, January 4, 1803. See also John Randolph Tucker, The Constitution of the United States (Chicago: Callaghan & Co., 1899) I:421-422, § 200 (g).

⁵ The Debates and Proceedings in the Congress of the United States (Washington: Gales and Seaton, 1852), Eighth Congress, First Session, 272, March 13, 1804, & 1237-1240, March 26, 1804. See also Tucker, The Constitution of the United States (1899) I:422, § 200 (g).

⁶ Register of the Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-First Congress (Washington: Gales and Seaton, 1830), VI:383, April 26, 1830 & 411-413, May 4, 1830. See also Tucker, The Constitution of the United States (1899) I:422, § 200 (g).

⁷ John C. Rives, The Congressional Globe: Containing the Debates and Proceedings of the Second Session of the Thirty-Seventh Congress (Washington: Congressional Globe Office, 1862), 2277, May 22, 1862. See also Floyd M. Riddick, Parliamentarian of the Senate, Procedure and Guidelines for Impeachment Trials in the United States Senate (Washington, D. C.: U. S. Government Printing Office, 1974), 13 n, May 22, 1862; Tucker, The Constitution of the United States (1899) I:422, § 200 (g).

⁸ Proceedings and Debates, Fifty-Eighth Congress, Third Session, XXXIX:1281-1283, January 24, 1905 (See the content of his impeachment trial). See also Floyd M. Riddick, Procedure and Guidelines for Impeachment Trials in the United States Senate (Washington, D. C.: U. S. Government Printing Office, 1974), 12 n.

⁹ Proceedings and Debates, Sixty-Second Congress, Second Session, XLVIII:9051-9053, July 15, 1912 (See the content of his impeachment trial). See also Riddick, Procedure and Guidelines for Impeachment Trials (1974), 12 n.

¹⁰ Proceedings and Debates, Sixty-Ninth Congress, First Session, LXVII:6:6585-6589, March 30, 1926 (See the content of his impeachment trial). See also Riddick, Procedure and Guidelines for Impeachment Trials (1974), 11 n.

¹¹ Albert J. Beveridge, The Life of John Marshall (Boston: Houghton, Mifflin Company, 1919), III:177. See also John Marshall, The Papers of John Marshall, ed. Charles F. Hobson (Chapel Hill: University of North Carolina Press, 1990), VI:347, to Samuel Chase on January 23, 1805.

¹² Thomas Jefferson, The Writings of Thomas Jefferson, ed. H. A. Washington (Washington, D.C.: Taylor & Maury, 1854), VII:178, to William Charles Jarvis on September 28, 1820.