Abstract
It is both a relief and a pleasure to discuss impeachment without having to address either the presidency or its former occupant. Indeed, the debates of the last two years have obscured not only that impeachment extends to federal officials other than the president, but also that such officials have been impeached more frequently than presidents. While Congress has impeached only two presidents and removed none from office, it has impeached thirteen federal judges and removed seven from office. These accumulated instances give judicial impeachment a discernible history of practices and precedents that can be mined for meaning.
Yet, despite its periodic use, judicial impeachment still holds many mysteries for constitutional lawyers. The principal mystery, and the one examined here, regards the grounds on which Congress may impeach a federal judge. The Constitution's text addresses the question expressly: "[A]II civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Most judicial impeachments have not probed the ambiguities of this text, but rather have largely involved violations of federal law or selling of the judicial office. Move beyond those simple cases, however, and difficult questions quickly arise. For example, can Congress impeach a federal judge for a disability that prevents her from doing her job? What about judicial decisions that defy even the low threshold of FEDERAL RULE OF CIVIL PROCEDURE 11? Delving into even more dangerous territory, what about political disagreement with a judge's decisions?