text:
UCLA Law Review
38 UCLA L. Rev. 1209
LENGTH: 25863 words
Warren S. Grimes *
* Associate Professor, Southwestern University School of Law. As chief counsel of the Monopolies and Commercial Law Subcommittee of the House Judiciary Committee, the author assisted the House Managers during the 1986 impeachment trial of Judge Harry Claiborne. The author is grateful for helpful comments from E. M. Gunderson, Michael Remington, James Fischer, James Kushner, and Michael Frost. Robert Ottinger, Angela Veltre, and Michael Fine provided valuable research and editorial assistance.
... At the end of the last century, a British observer likened the American impeachment process to a "hundred ton gun" that was "unfit for ordinary use." ... In the 1989 Senate impeachment votes on Judge Hastings, a majority of senators from each party favored conviction, but Democrats were more likely to vote "not guilty." ... If the bar and the judiciary have confidence in the workability of the impeachment removal mechanism as the ultimate remedy in a non-criminal, judicial discipline system, they may invoke and apply the Act more readily. ... Senator Specter, who sat on the trial committee for Judge Hastings, expressed concern about alleged prosecutorial excesses in the investigation of Judge Hastings. ... Confronted with this record, both the Nevada Supreme Court and a majority of the Senate impeachment trial committee had reservations. ... To lessen this risk, the Senate could, in any case in which an impeachment defendant is convicted on a summary, pretrial motion, impose only the sanction of removal. ... Impeachment is an important safeguard for judicial independence because it involves the Congress in a removal process that may occasionally be inspired by vengeful or self-promoting prosecutors or the parochial politics of the judiciary. ...
[*1209] At the end of the last century, a British observer likened the American impeachment process to a "hundred ton gun" that was "unfit for ordinary use." n1 Recent experience suggests little to change that assessment. After fifty years of rusting disuse, Congress has thrice in four years used this cumbersome machinery to impeach, try, and remove from office United States District Judges Harry Claiborne, Alcee Hastings, and Walter Nixon. n2 Each time, the machinery worked, but not without anguished gnashing of teeth by many members of Congress cast in unfamiliar prosecutorial or judicial roles. The proceedings were awkward, highly inefficient, and intrusive on an already cluttered legislative calendar. Finding, as Thomas Jefferson did, that impeachment is a "bungling way" to [*1210] remove judges, n3 a few members have proposed alternative removal mechanisms for judges, including some that would require amendments to the Constitution. n4
Efficiency was not a primary goal of the Constitution's judicial removal mechanism. The drafters sought instead to design a system that protected judges from politically inspired threats of removal. A speedy and efficient removal mechanism might not have protected judicial independence nearly as well as the awkward and expensive procedures now in place. A push for efficiency could have also undermined another legitimate goal of a well-conceived removal mechanism: fairness to the defendant. n5 Although protection of judicial independence and fairness to the defendant are legitimate and primary concerns, the workability of a removal mechanism is also fundamental. If the system allows a corrupt or incompetent judge to remain in office, the public may lose confidence in the judiciary, increasing judges' vulnerability to political attack. n6 Moreover, a workable impeachment removal procedure is potentially less threatening to judicial independence than reliance on criminal prosecutions of sitting federal judges. n7
Part I provides a brief historical overview of judicial impeachments, tracing the sharp decline in the use of House impeachment investigations as a disciplinary tool. Part II describes the development of two alternate modes of judicial discipline which, to varying degrees, have filled the vacuum left by the decline in impeachment [*1211] investigations: criminal prosecutions of sitting federal judges and the Judicial Conduct and Disability Act. Part III examines some of the awkward features of the impeachment process that may have contributed to its disuse. Part IV describes how Congress responded to these problems in the three 1980s impeachments. The use of the Senate Trial Committee was a major step towards greater workability, but other congressional responses show a reluctance to achieve needed reforms. Part IV also reviews the unsuccessful judicial challenges brought by impeachment defendants. Part V surveys the circumstances surrounding recent criminal prosecutions of federal judges and the potential threat these prosecutions may pose to judicial independence. Finally, Part VI suggests two useful directions for further reform of the impeachment process that should not require constitutional amendment: (1) the development of Senate pretrial rules to allow the parties and the Senate Trial Committee to eliminate issues not genuinely in dispute; and, (2) if additional evidentiary hearings are required, the Senate's delegation of fact-finding authority to a specially appointed tribunal.
The Constitution speaks tersely to impeachment in Articles I and II. It provides for removal of the President, Vice President, and all civil officers of the United States "on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." n8 It grants to the House the sole power to impeach and to the Senate the sole power to try impeachments. n9 Conviction and removal requires a two-thirds vote of present Senators. n10
Article III of the Constitution addresses impeachment only obliquely. Section 1 guarantees that judges shall hold office "during good behavior." Hamilton touted this provision as protection against politically inspired removal. n11 According to a widely held [*1212] view, the Constitution allows removal of a judge only by impeachment; under this view, a statutory removal scheme would be unconstitutional. n12 Among those who favor allowing the judiciary to remove its own miscreants, a few have argued that the good behavior clause implicitly provides Congress the authority it needs to enact an alternate removal scheme. n13
Although the threat of criminal prosecution may pressure a judge to resign, the impeachment process is the only certain way to remove a federal judge. Other government officials are subject to limited terms, Presidential authority to terminate, or some alternate method of removal; n14 none of these alternatives applies to federal judges. Despite the special role of impeachment in removing federal judges, the Constitution's drafters gave little attention to this application. Discussion at the Constitutional Convention centered on removal of the President and Vice President. n15 Still, the delegates, some of whom had been members of state legislatures that conducted impeachments during the revolutionary period, were accustomed to impeachments of state judges. n16 State legislatures often impeached corrupt judges, n17 but were free to impeach a judge for well-meaning incompetence n18 or, in the growing dispute between Federalists and Jeffersonians, for political reasons. n19
The House initiated use of the impeachment investigation as a tool for judicial discipline shortly after ratification of the Constitution. In 1795, the House inquired into the behavior of George Turner, [*1213] a judge in the Ohio territory. n20 The termination of the Turner investigation without impeachment established a pattern: of fifty-nine formal House investigations involving federal judges, only thirteen have resulted in articles of impeachment. n21 In the other cases, the House terminated the investigation for a variety of reasons, including a finding that the judge had not engaged in conduct warranting impeachment. n22 Among those not impeached, at least three were subject to censure recommendations by the investigating House committee. n23 Others, apparently feeling the sting of a House inquiry, resigned before completion of the investigation. n24
According to Hamilton, the political content of impeachments should not be shunned: the Constitution's drafters wanted a political forum for trying political misdeeds. n25 Nineteenth century impeachments included three judges singled out because of disfavored political affiliations. The House impeached two Federalist judges targeted by the Jeffersonians. The Senate convicted and removed Judge John Pickering of New Hampshire in 1804, n26 but acquitted Supreme Court Justice Samuel Chase in 1805. n27 During the Civil War, the House impeached and the Senate summarily convicted [*1214] and removed Judge West H. Humphreys of Kentucky after he abandoned his post to work for the Confederacy. n28
These impeachments are disquieting because of their apparent disregard of both judicial independence and the rights of the defendant judge. The Jeffersonians attacked Pickering and Chase after watching the Federalists use the judiciary to hound opponents in the years prior to Jefferson's election. n29 The lesson here, as in the Civil War impeachment, may be that chaos and extreme political divisiveness are likely to test the strength of even the most fundamental constitutional principle. But even in these extreme circumstances, the impeachment mechanism arguably functioned adequately. Notwithstanding the motivating political animus, there were adequate grounds for removing Judge Pickering and Judge Humphreys. n30 And, resisting heavy political pressure, the Senate declined to convict Justice Chase, providing a critical early vindication of the principle of judicial independence. n31
Of the eleven completed impeachment trials for judges (over two centuries), four have resulted in acquittals. n32 In this century, each of the five judges convicted and removed either had already been convicted of a crime or had been charged with activities [*1215] which, if true, would have constituted a crime. n33 These facts may suggest to some a decreasing political component to impeachments. Yet, the political dimension to impeachments has endured. n34 In 1970, political opponents of Supreme Court Justice William O. Douglas led the House's impeachment investigation. n35 Defenders of each of the three judges impeached in the 1980s charged that political considerations, such as prosecutorial vendettas and racial bias, motivated their attackers. n36 In the 1989 Senate impeachment votes on Judge Hastings, a majority of senators from each party favored conviction, but Democrats were more likely to vote "not guilty." n37
Despite three cases in the past five years, impeachment investigations are a vanishing species. Examining our 200-year constitutional history in four fifty-year increments, impeachment investigations grew from seventeen during the first period to twenty-three during the third period, then fell sharply to only seven during the period ending in 1989. Measured against the growing number of federal judges, the drop was pronounced. The number of authorized Article III judges grew from 19 in 1789 to 829 in 1990, a more than forty-fold increase. n38 The chart below traces these developments more fully.
[*1216] DECLINE IN HOUSE IMPEACHMENT INVESTIGATIONS OF FEDERAL JUDGES n39
Number of
Dates (in
Article III
Ratio of
Judgeships (at
26th year)
to Judgeships
28 (1815)
63 (1865)
146 (1915)
407 (1965)
During the last fifty years, the chances of a sitting federal judge being subject to a congressional impeachment investigation have become remote: on average, for every hundred authorized judgeships, there were only two impeachment investigations every fifty years. The ratio of investigations to judgeships was thirty times lower than during the first half century under the Constitution.
Criminal Proceedings Against Sitting Federal Judges
Beginning in the 1930s, two alternate methods of judicial discipline have emerged: criminal prosecutions of sitting federal judges and internal measures taken by the judiciary itself. Although still relatively infrequent, criminal prosecutions of federal judges gained acceptance during the late 1930s. n40 Criminal prosecution is now an established method for proceeding against a judge believed to have violated a criminal law.
The Constitution's drafters may have assumed that a federal official would be impeached and removed from office
criminal prosecution. The use of the past tense in Article I ("the Party convicted [in an impeachment proceeding] shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law") suggests that impeachment and removal from office were to precede criminal prosecution. n41 In a similar vein, Hamilton wrote in
The Federalist
that a person impeached and convicted "would
be liable to prosecution and punishment [*1217] in the ordinary course of law." n42 A different conclusion could be inferred from the House's action in 1796, when it chose not to impeach Judge George Turner upon the assurance of the Attorney General that the judge could be prosecuted by the courts. n43 The House and the Attorney General apparently believed that impeachment and removal need not precede criminal proceedings. n44
In any event, prosecution did not become an active disciplinary tool for sitting federal judges until 1939, when Judge Martin T. Manton of the Second Circuit was indicted for corrupting his office. n45 Although Manton resigned under pressure prior to his indictment, New York District Attorney Thomas Dewey's investigation had begun while Manton was still a sitting judge. n46 The case opened the door for other prosecutors to undertake criminal investigations of sitting federal judges. n47
The question of whether the Constitution permits a sitting federal judge to be tried for a criminal offense was not squarely addressed by the courts until 1974. In
United States v. Isaacs,
n48 the court rejected arguments that the Constitution required Judge Otto Kerner's removal by impeachment prior to criminal prosecution. The court was persuaded that the framers of the Constitution did not intend that a person appointed to judicial office "would receive amnesty and would not be accountable for his misdeeds, whenever they occurred." n49 In support of this conclusion, the court cited prior Supreme Court holdings permitting the prosecution of members of Congress. n50 More recently, courts followed
in two [*1218] cases involving the prosecutions of Judge Claiborne and Judge Hastings. n51 Although criminal prosecutions of federal judges remain infrequent, the Justice Department now routinely routes all complaints against federal judges to the Public Integrity Section of the Criminal Division.
The Department has obtained indictments of five federal district judges over the past ten years. n52 Counting the prosecution of Judge Kerner in the 1970s, the six documented federal prosecutions over two decades represent something less than a deluge. Still, to understand the full impact of prosecutorial activity, one must also weigh those cases, more difficult to document, in which a threatened prosecution was used to force a judge's resignation. For example, in 1978, U.S. District Judge Herbert A. Fogel announced his resignation from the bench apparently in return for an understanding that the Justice Department would not prosecute him. n53
Many of these threatened or actual prosecutions involved the same type of misconduct formerly addressed in impeachment proceedings. [*1219] Judge Claiborne's prosecution for income tax violations and Judge Hasting's prosecution for his involvement in a bribery scheme closely parallel the impeachment charges brought against Judge Archbald and Judge Ritter earlier in this century. No criminal prosecution preceded these earlier impeachments. n54 More provocatively, the recent criminal prosecution of Judge Walter Nixon may be based upon conduct which, although within the bounds of past House impeachment investigations, might well have resulted in sanctions short of conviction and removal by impeachment. n55
Despite the threat to judicial independence inherent in allowing a prosecutor to control a judge's tenure, there is little likelihood that the courts will disallow prosecutions of sitting judges. n56 When the crime is sufficiently serious and the evidence clear, the prosecution of a sitting federal judge may be warranted, but a more workable impeachment mechanism would be a generally preferable alternative to criminal prosecution. n57 Such a mechanism could also reach cases in which judicial misconduct is not criminal n58 or is not pursued by prosecutors. n59
The Judicial Conduct and Disability Act
A second alternative to impeachment is the disciplinary authority exercised by the judiciary itself. Probably as old as the courts themselves, internal disciplinary steps have been haphazard and informal; only recently has Congress established a structure for the federal judiciary to discipline its own members. An important [*1220] initial step was the enactment of the Administrative Office Act in 1939. The 1939 legislation established judicial councils made up of each circuit's judges and authorized actions needed to administer the work of the district courts. n60 The legislation did not expressly confer disciplinary authority. In 1965, the Judicial Council for the Tenth Circuit relied on the 1939 legislation in seeking to remove a district judge's calendar of pending and future cases. Judge Chandler was said to be "unable, or unwilling, to discharge efficiently the duties of his office." n61 In ensuing litigation, the judge argued that the Council's order had unconstitutionally usurped Congress's impeachment power. The Supreme Court disposed of the case on procedural grounds without resolving the reach of the Council's discipline power. n62
Meanwhile, states had moved to create alternatives to impeachment for disciplining state judges. Beginning in the 1960s, many states established permanent state agencies responsible for regulating judicial conduct. n63 Under these schemes, the initial investigation of a judge is often assigned to a panel composed of judges, lawyers, and representatives of the public. The state supreme court or a special tribunal of sitting judges makes the final decision on discipline. These new mechanisms have largely supplanted state impeachment proceedings as a tool for discipline and removal of state judges. n64
The federal government has slowly and only partially followed this pattern. In 1980, in the face of increasing pressure to establish nonimpeachment disciplinary authority, n65 Congress enacted the Judicial [*1221] Councils Reform and Judicial Conduct and Disability Act. n66 This legislation established procedures for judicial councils and for the national umbrella organization, the Judicial Conference, to discipline federal judges enjoying the tenure protection of Article III. The Act permits "any person" to file a complaint with the clerk of the court of appeals for the relevant circuit alleging that a judge "has engaged in conduct prejudicial to the effective and expeditious administration" of the court's business. n67 If the complaint survives the initial screening, and if the chief judge takes no appropriate corrective action, the chief judge must appoint a special committee of district and court of appeals judges to investigate the complaint n68 and make recommendations to the judicial council of the circuit. n69
The Act lists certain remedial actions that the council may take. Those actions include ordering that no new cases be assigned to a judge "on a temporary basis for a time certain" n70 and, if it finds that the judge may have engaged in conduct that "might constitute one or more grounds for impeachment," certifying such a finding to the Judicial Conference. n71 The Judicial Conference may further investigate the matter referred to it, and, if it finds that "consideration of impeachment may be warranted," forward such a certification to the House. n72 The Act expressly withholds from the judiciary any authority to remove a federal judge. n73
From 1983 to 1990, a total of 1896 complaints were filed under the Act. The chief judge dismissed or the complainant withdrew seventy-six percent (1388) of the 1834 cases concluded during this period. The chief judge took corrective action in forty-nine cases, and the individual circuit's judicial council in eight cases, for a total of fifty-seven. n74 In a few cases, the remedy was significant. In 1989, [*1222] judicial councils recommended retirement for two judges based on a physical or mental disability and publicly censured a third. n75
Although still developing, the complaint procedure gives affected persons a clearly defined avenue of relief; it provides a structured and tangible disciplinary authority for judicial councils that was apparently lacking at the time of the
case. The Act has critics, including those who believe that its provisions are unconstitutional, n76 that it places an undue burden on the chief judges who administer it, n77 or that it is inadequately understood by members of the bar, who may be deterred from signing a complaint against a judge who may continue to hear their cases. n78 On the plus side, the Act was drafted with substantial input from federal judges and it appears to have their support in creating a viable judicial discipline mechanism. n79 The Act's mechanism offers hope of addressing the vast majority of disciplinary problems that do not warrant removal. n80 In 1990, Congress enacted amendments to the Act, reflecting renewed congressional support for an effective discipline mechanism run by the judiciary. n81
[*1223] The Act has yet to prove itself as a reliable tool for dealing with the more serious judicial misconduct traditionally addressed through a House impeachment investigation. To the extent that the Act develops this potential, it will be a welcome alternative to undue reliance on the criminal justice system as a primary disciplining tool. To be effective, the Act's investigatory and fact-finding procedures must be used
the use of criminal indictments that are more inflammatory and threatening to judicial independence. If the bar and the judiciary have confidence in the workability of the impeachment removal mechanism as the ultimate remedy in a non-criminal, judicial discipline system, they may invoke and apply the Act more readily.
The evolution of alternate discipline mechanisms may partially explain the decline in judicial impeachment investigations. The decrease in such investigations accelerated after 1939, when criminal prosecution of sitting judges became more accepted. n82 But these developments alone do not adequately explain the decline. Impeachment investigations were decreasing relative to total judgeships long before the emergency of criminal prosecutions in the late 1930s or the in-house judicial discipline system in the 1980s. These alternate disciplinary tools seem to have been a response to the virtual disappearance of impeachment, not the cause of that disappearance.
The fall-off in impeachment investigations arguably can be traced to higher quality appointments to the federal bench. Better education of lawyers and a more refined selection procedure may have contributed to such a quality increase. For example, the American Bar Association's Standing Committee on the Federal Judiciary, formed in 1949, has provided input on potential nominees since 1952. n83 Although the ABA's role has been criticized and [*1224] varies with the policy of each President, n84 even the minimal presence of an outside body could be a positive restraint on the President's choices and the Senate's consent. n85 Still, it is difficult to believe that there was no disciplinary event requiring impeachment (and only a handful warranting a House investigation) during the fifty-year period leading up to 1986. The decreasing use of impeachment proceedings probably is in large part congressionally driven.
Congressional aversion to the impeachment process may be traced to two related concerns: (1) that the impeachment machinery is costly, time-consuming, and disruptive of legislative business; and (2) that impeachments cast members in awkward roles for which they are neither trained nor suited. Although these concerns are not new, they have grown as impeachment trials have become more complex and legislative calendars more cluttered.
Revolutionary War period impeachments are said to have been "a practical weapon of new-minted governments against self-interested, disorderly, and arbitrary officials." n86 Impeachment trials in the state legislatures frequently lasted only a day or two, focusing on hard evidence of wrongdoing. But with the escalating political battle between Federalists and Jeffersonians, impeachment trials became more lengthy, some carrying a sensational political dimension. Senate galleries were filled during Justice Chase's 1805 trial of almost a month. The printed record was 800 pages. n87
Impeachments remain lengthy and complex proceedings. Despite the Senate's decision to conduct impeachment trials before a twelve-member trial committee, the 1980s impeachment proceedings were disruptive and extremely expensive. The relatively abbreviated trial of Judge Claiborne occupied the Trial Committee for eight days; n88 debate, closing arguments, and voting before the full [*1225] Senate filled substantial portions of three legislative days. The printed record of the trial contains over 3500 pages. n89
The impeachment proceedings for Judge Hastings substantially exceeded these totals. During the two-year House investigation, as many as nine Judiciary Committee employees were assigned to the task. n90 The printed record for the House hearings alone is over 4800 pages. n91 To administer the trial of Judge Hastings, the Senate made substantial additions to its staff and reassigned existing employees. n92 Pretrial proceedings in the Hastings impeachment required the issuance of seven pretrial orders on subjects such as discovery, principles of evidence, pretrial statements, payment of legal fees, and stipulations on the authenticity of documents. n93 The Trial Committee permitted discovery, including two videotaped depositions of witnesses, and amassed a record of over 6000 printed pages. n94 At trial, the Committee limited each side's evidentiary presentations to thirty-eight hours (including both direct and cross examination). n95 The evidentiary hearings were nonetheless protracted, occupying eighteen full days (fifty-five witnesses testified). n96 The full Senate spent almost four legislative days hearing preliminary motions and closing arguments, engaging in debate, and voting [*1226] judges sued to contest the constitutionality of the Senate's procedures. n98 In the Hastings impeachment, the Senate initiated ancillary court proceedings to obtain immunity for a witness and, when the witness refused to cooperate, sought contempt sanctions. n99
The length of House and Senate impeachment proceedings ranged from the relatively short six months for Judge Claiborne to two and one-half years for Judge Hastings. Yet, for members of Congress, the overall cost cannot be measured by simply adding the days or dollars spent. Time spent on an impeachment proceeding represents time lost for other legislative business. A typical legislative year may have no more than 150 legislative working days. n100 Given the heavy demands on Congress's schedule, a senator or representative, a committee, or the entire House or Senate, cannot reasonably commit substantial blocks of time to a removal decision for one federal judge.
From the standpoint of a removal mechanism's workability, the time and resources spent by the Congress do not tell the full story. If public confidence in the judiciary is to be maintained, a judge guilty of gross misconduct should not be allowed to keep his title and salary indefinitely. In the 1980s impeachments, the prior criminal and judicial disciplinary proceedings may have eased or even compelled congressional action, but they greatly expanded the time and expense of removal. From the point of the initial criminal [*1227] investigations against them, Judge Claiborne and Judge Nixon remained in office for six years. n101 For Judge Hastings, this period was eight years. n102 During this delay, the remaining judges in their districts had the burden of carrying out the duties of the accused judges.
A related but separate question is whether members of Congress are suited to carry out their impeachment function. Accepting Hamilton's view that impeachment is primarily a political process, n103 elected members of the House and Senate seem well-suited to their role. But impeachments have become lengthy, technical, judicial-like proceedings. Most elected legislators do not have the training and expertise necessary for this task.
A House Judiciary Committee subcommittee typically conducts the investigatory phase of an impeachment. Although investigations are the bread and butter of congressional committees, they are not necessarily best suited to the adjudicatory nature of today's impeachment proceedings. In an impeachment, the subcommittee's role is akin to that of a district attorney, requiring the construction of a carefully documented case in conformity with the rules of evidence. Much of this task can be assigned to experienced trial counsel, but such a staff typically would have to be reassembled for each impeachment, entailing substantial start-up time and lost efficiency.
Prosecution by committee is unusual in our system. Not surprisingly, the House managers are in an awkward position during the Senate trial. Until the impeachment of Judge Claiborne in 1986, the House managers acted as trial attorneys, with limited assistance from expert counsel, throughout the Senate trial. n104 In the 1980s [*1228] trials, much of this trial work was delegated to staff counsel. n105 There are sound reasons for this delegation. If the managers themselves conduct the trial, they are matched against full-time litigators representing the defendant. Even if the managers are experienced trial lawyers, they may lack time for careful preparation. Their required participation as "lead" counsel also causes delays in the trial. The Claiborne trial record is punctuated by recesses or early adjournments called to permit the House managers to cast important votes. n106 Other less urgent duties of House members had to be postponed or simply foregone during the trial.
The problem for Senators hearing a trial is no less acute. Since 1790, the Senate has almost quadrupled in size; its workload has expanded commensurately with rapid population growth and the expanded role of government. n107 Although use of trial committees reduces the Senate's burden, fact-finding trials conducted by a twelve-member committee are highly inefficient. n108 One frustrated Senator compared his trial committee experience to confinement in a hospital's intensive care unit. n109 Posthearing proceedings in the full Senate are less lengthy, but still problematic. Many Senators did not attend major portions of the Senate's Claiborne deliberations. According to Senator Heflin, except for votes on the impeachment articles, at no time were a full two-thirds of his colleagues present for full-Senate deliberations for the 1980s impeachments. n110 Other Senators' statements reflect at once the seriousness of their constitutional duty and their discomfort in playing [*1229] unusual roles as judge and jury. n111 Senator Stevens, who admitted that he had attended no more than thirty-five minutes of the full Senate's Claiborne proceedings and had not read most of the trial Committee's documents, concluded that Senators had not had "enough time to weigh independently the evidence." n112
The burdens of an impeachment proceeding are quite small next to the complex business of overseeing and legislating for an enormous federal establishment. Congress has had some success in the latter task through generous delegation of responsibility to specialized committees, expert staff, and congressional support organizations. To some degree, similar measures can aid Congress in dealing with impeachment burdens. Reliance on delegation, however, runs counter to constitutionally grounded visions of members of Congress as grand jurors (House) or judges (Senate), exercising nondelegable responsibilities to determine whether a federal judge should retain his office. n113 The impeachments of the 1980s have forced re-examination of the delegation issue.
In the spring of 1986, the House of Representatives was not seeking redeployment of long-dormant impeachment machinery. n114 After a fifty-year hiatus on judicial impeachments, the House confronted a unique circumstance that many felt compelled intervention: a convicted and imprisoned federal judge had refused to resign and continued to collect his full judicial salary. Judge Harry Claiborne of the District of Nevada had been convicted in 1984 of falsifying federal income tax forms. Whether Judge Claiborne was a tax [*1230] evader, as more than a two-thirds majority of the Senate apparently concluded, n115 or an innocent victim of vindictive federal law enforcement officials, as many of his defenders believed, n116 his case was widely perceived as a threat to the credibility of the federal judiciary. Members of Congress feared the public response if a convicted felon were left on the payroll and, upon release from prison, were permitted to resume office. n117
Criminal proceedings spawned each of the three 1980s impeachments. Each judge was investigated, indicted, and tried on serious criminal charges. In two cases (Claiborne and Nixon), the judges were imprisoned after conviction and exhaustion of all direct appeals. In a variation on this pattern, a jury acquitted Judge Hastings; thereafter, the Eleventh Circuit's Judicial Council conducted its own investigation of the judge's conduct and recommended impeachment. Finally, as to each judge, the Judicial Conference certified to the House of Representatives pursuant to title 28, section 372(c), n118 that "consideration of impeachment" might be warranted. n119
This backdrop afforded the Congress a choice that earlier impeachments had not: to view impeachment as a critical but relatively simple removal exercise in which the House and Senate made a political judgment based upon a pre-existing record supplied to them. Alternatively, if one or both Houses chose to build a separate record, the preimpeachment fact-finding offered an opportunity to reduce the scale of the record-building task.
The House's Efforts to Invite Reliance on the Pre-Existing Record
In the 1986 impeachment of Judge Claiborne, the House set a course that could have dramatically curtailed the congressional role in impeachment proceedings. With an eye to Judge Claiborne's prior conviction on tax-evasion charges, the House Judiciary Committee dispensed with any lengthy investigation into Judge Claiborne's conduct. A federal appellate judge (and former Judiciary Committee member) urged the House Committee to give "collateral estoppel" effect to the findings of the courts in the criminal proceeding against the judge. n120 During debate on the House floor, House Judiciary Committee Chairman Peter Rodino explained the decision to take "legislative notice of the factual finding already determined beyond a reasonable doubt by a jury of Judge Claiborne's peers and sustained at all levels of direct appeal." n121 The House managers planned to seek a summary disposition in the Senate that would minimize or avoid further trial or evidentiary proceedings.
In a pretrial motion, the House managers urged that the Senate summarily convict Judge Claiborne based upon the third impeachment article, which relied upon the judge's criminal conviction and the exhaustion of all direct appeals. n122 The managers found support in judicial doctrines of finality, collateral estoppel, and full faith and credit. n123 In a separate motion, the House Managers urged application of collateral estoppel to specific issues alleged in the first two impeachment articles. n124 The motions offered the Senate an opportunity to credit judicial findings in the criminal case and avoid repetition of a full-dress evidentiary proceeding.
[*1232] These efforts encountered complications in the Senate. The House directed its arguments to the Senate Trial Committee, which lacked the authority to decide a motion for summary disposition and declined requests to refer it to the Senate for a pretrial ruling. n125 The Committee Chairman, Senator Mathias, construed the House motions as a request that the Senate be bound by the courts' judgment. The Senate, he concluded, had a constitutional "obligation" to conduct its own factual inquiry. n126
Completion of the evidentiary trial mooted the House's pretrial motions. n127 The Senate's inflexible posture toward the House's motions had a number of ripple effects. In the case of Judge Nixon, who like Judge Claiborne had been convicted and imprisoned, the House chose not to seek a summary disposition. Anticipation of a full evidentiary hearing in the Senate also pressured the House to compile its own exhaustive evidentiary record. Thus, even for the relatively straightforward proceeding against Judge Nixon, a House subcommittee spent a full year amassing a 6000-page record, much of it duplicating the record from the criminal proceeding. n128 This contrasts with the treatment of Judge Claiborne. In anticipation of a summary disposition, the Claiborne investigating subcommittee [*1233] conducted only one day of hearings and reported an impeachment resolution within a month of the date it was introduced. n129
The Senate's constitutional authority to conduct its own trial is unquestioned. However, to mandate that the Senate
do so regardless of whether factual issues are genuinely in dispute seems an unacceptably rigid construction. Indeed, despite Senator Mathias's strong statements on the Senate's constitutional obligation to conduct a trial, the Claiborne Trial Committee acted firmly to limit the scope of the trial. The Committee granted in part the House's
in limine
motion to exclude Judge Claiborne's proposed testimony impugning the motives of the judge's criminal prosecutors. n130
The Hastings and Nixon Trial Committees were even more active in pretrial efforts to cull nongenuine issues from the proceedings. The Hastings Committee instructed the parties to work together to stipulate to the authenticity of documents and to facts not in genuine dispute. When Judge Hastings initially failed to participate in this stipulation process, the Committee adopted a House suggestion that proposed stipulations be binding unless the opposing party included a proffer to establish a fact as untrue. n131 The Hastings Trial Committee also granted the House's motion to exclude certain categories of evidence as irrelevant. n132 Similarly, the Nixon Trial Committee heard motions from both sides to limit evidentiary presentations and pushed the parties to stipulate to facts and to the authenticity of documents. n133
These steps gave the trial committee an important tool for controlling pretrial definition of the issues. Nonetheless, as will be explored in Part VI, a refusal to hear summary disposition motions substantially undercuts the Senate's ability to design an efficient and just trial mechanism.
The Senate Trial Committee
Senate impeachment trials had always been conducted before the full Senate. In 1935, following the sparsely attended impeachment [*1234] trial of Judge Harold Louderback, n134 the Senate adopted new rules governing impeachment trials. Rule XI provided for the establishment of a twelve-member trial committee to hear the evidence and report to the full Senate. n135 Under the rule, the Senate retained the right to hear live testimony from any witness.
The possible advantages of the new rule were obvious. The impeachment trial could be conducted before the assigned committee with fewer interruptions of Senate business. Also, a committee of twelve was potentially a far more efficient and manageable tribunal than a ninety-six (now one hundred) member Senate. Finally, the rule was a way of sidestepping a growing problem of inadequate attendance at impeachment trials conducted before the full Senate. n136 The Senate nonetheless chose not to invoke the new rule for the impeachment of Judge Halsted Ritter in 1936. n137
Fifty years later, the Senate faced an impeachment trial at the busiest time in a two-year congressional cycle: late summer of the second session. The Senate quickly invoked Rule XI. n138 However, there was a potential obstacle to implementation of the rule. Judge Claiborne contended that Article I guaranteed him a trial by the full Senate. That challenge was rejected by vote of the Senate n139 and declared nonreviewable by the courts. n140 The constitutional issue arose again after the Senate appointed trial committees for Judge Hastings and Judge Nixon. n141 In Judge Hasting's suit for injunctive relief (Judge Nixon intervened as a plaintiff), the court again denied relief, holding that the Senate's interpretation of the type of trial required by article I, section 3 "is entitled to deference, [*1235] absent a clear Constitutional violation." n142 The court dismissed the action as "non-justiciable" because it would have required the court to monitor the "Senate's constitutionally-assigned proceedings." n143
The most sympathetic judicial response to a challenge to the trial committee came in Judge Nixon's postconviction suit. n144 Judge Oberdorfer found "contextual" evidence that the framers regarded trial in the Senate, while "more cumbersome than some alternatives," as "essential to the preservation of judicial integrity." n145 Nonetheless, the court concluded that the Senate had not denied Judge Nixon the type of trial "clearly guaranteed" to him by the Constitution. n146 Following earlier decisions, the court declared the suit nonjusticiable. n147
As expected, use of the trial committee freed the full Senate's calendar from large blocks of time that would have been needed to conduct an impeachment trial. During the 101st Congress, the Hastings and Nixon Trial Committees spent twenty-two days hearing testimony and arguments (not counting pretrial proceedings). By delegating these talks, the full Senate was able to confine its participation to approximately eight legislative days. n148
[*1236] A COMPARISON OF IMPEACHMENT VOTES OF SENATORS: TRIAL COMMITTEE MEMBERS VS. NONMEMBERS n149
Percentage of Senators
Percentage of Senators Voting Not
Voting Not Guilty
Guilty On Article Receiving Most
On All Articles
Guilty Votes
Claiborne n150
Although constitutional challenges to the use of the trial committee have failed, the question remains whether Senators absent from the trial can fairly determine the guilt or innocence of the defendant. n151 The 1980s impeachment votes would appear to lend weight to this concern. As the chart shows, Senators who were members of the trial committee were significantly more likely to vote "not guilty" than nonmembers. In the case of Judge Hastings, although an ample two-thirds majority of the Senate convicted him on eight articles, a two-thirds majority of Committee members failed to vote "guilty" on any single article.
It need not follow, however, that Judge Hastings would have fared better in a full Senate trial. The sparse attendance by Senators during the full Senate impeachment trials of the 1930s cautions against the assumption that a full Senate trial would compel every Senator to attend and participate. n152 Indeed, the committee mechanism may increase effective participation. When the tribunal's size [*1237] is reduced from one hundred to twelve, each of its remaining members will have a less diluted and more immediate responsibility for the conduct of the trial. Additionally, for each of the 1980s trials, the Senate changed its rules to permit each committee member to question each witness, n153 a step that encourages attendance and active participation by each member. Conversely, when a trial is before the full Senate, the rules limit each Senator's participation to written questions submitted to, and asked by, the presiding officer. n154
It is, therefore, difficult to carry the case against the use of trial committees based solely on a tabulation showing that committee members are more likely to vote "not guilty." It is possible that a Senator who actively participates in the trial is more likely to find sympathy for the defendant judge. But trial by the full Senate may effectively decrease such active participation.
Borrowing from the Judicial Model
The impeachment proceedings of the 1980s have increasingly taken on the procedural trappings of large-stakes litigation. The expansion of pretrial activity has been substantial. In the Hastings case, the Senate Trial Committee issued seven pretrial orders over a five-month period, creating a paper trail of over 1000 printed pages. n155
In dealing with growing trial complexities, the Senate has looked primarily to judicial models for guidance. n156 Frequently, the [*1238] House managers and attorneys for the defendant do not agree on the appropriate model. In two centuries of impeachment proceedings, the defendant has typically argued that strict safeguards of criminal procedure (governing evidentiary and burden of proof questions) should control. The House managers have typically countered that the more relaxed standards of civil litigation should apply. n157 In 1986, the Senate rejected Judge Claiborne's motion that the criminal standard of "beyond a reasonable doubt" be established as the standard of proof in an impeachment trial. n158 The Senate adopted no standard of its own, leaving (as before) each Senator to determine by what measure the evidence should be weighed. n159
In the 1989 Hastings impeachment, Judge Hastings made another attempt to borrow from the criminal law. As the first federal judge ever to have been acquitted on criminal charges related to his impeachment, Judge Hastings asked the Senate for pretrial dismissal of impeachment articles related to the criminal charges. A Senate trial on these articles, he argued, contravened the constitutional prohibition on double jeopardy. In addition, the judge's defenders urged that because key witnesses had died or become unavailable since the criminal trial six years earlier, it was impossible to conduct a fair trial. n160 In response, the House managers argued that Article I of the Constitution envisioned two separate and distinct proceedings: a decision whether to remove, constitutionally assigned to Congress (the impeachment proceeding); and a decision whether to impose criminal sanctions, delegated to the criminal courts. The House further argued that Judge Hastings shared responsibility for the delays in initiating impeachment proceedings. n161 By a 92-1 vote, the Senate rejected Judge Hastings's motion to dismiss. n162 In Judge Hastings's unsuccessful suit to enjoin the Senate trial, the district judge was unpersuaded by the double jeopardy argument. Adopting a view expressed in earlier impeachment trials, the court [*1239] described impeachment as "not a criminal proceeding" but "sui generis." n163
Judge Hastings also raised the issue of whether an impeachment defendant is entitled to reimbursement for the cost of his defense. n164 In a pretrial motion, he argued that his legal costs, if unreimbursed, were an unconstitutional reduction of his salary guaranteed by Article III. He asked the Senate to right a perceived imbalance between the resources of the House managers and those of the defendant. n165 The Trial Committee declined to recommend reimbursement. n166 Judge Nixon's similarly grounded motion for reimbursement was denied by the Nixon Trial Committee. n167
As the resolution of these issues suggests, no model borrowed from judicial proceedings appropriately fits all aspects of an impeachment trial. A fixed standard of proof, for example, would be difficult to enforce on 100 Senators, each accustomed to independent votes of conscience. Nor does the Senate adhere to judicial standards in other ways. For example, Senators, unlike judges, are not barred from contact with the parties or their representatives during the trial. n168 Many Senators are friends or close political allies of the House members who prosecute these cases, a circumstance that might force disqualification of a judge (but not a Senator). These and other endemically legislative features separate the political impeachment forum favored by Hamilton from the pure judicial model.
It would be a mistake to assume that three recent impeachment cases portend a revival of the impeachment mechanism. Impeachment is no longer a relevant alternative for the vast majority of disciplinary problems involving federal judges. The 1980s cases reached Congress only after extensive criminal proceedings and, in one case, a long judicial council investigation.
Once a judge has been indicted, his credibility with the public is severely undermined. It is not surprising, then, that the Senate found each of the three judges guilty by a significant margin. n169 These results contrast markedly with eight previous impeachment trials for unindicted federal judges: only half were found guilty and removed. n170 Viewing this record, a cynic might see the 1980s proceedings as an elaborate and expensive facade for reaching pre-ordained results.
Disaffection with impeachment machinery typically increases during and immediately after an impeachment trial. Nine proposals to provide an alternate removal mechanism for federal judges were offered between 1807 and 1812 on the heels of the unsuccessful attempt to convict and remove Justice Samuel Chase. n171 House Judiciary Committee Chairman Hatton Sumners offered similar proposals following the impeachment trials of the 1930s. n172 There is no shortage of proposals for alternate discipline and removal mechanisms today. n173 Many of these look to the states, where impeachments of state judges have been supplanted by disciplinary [*1241] tribunals or other removal mechanisms. n174 Among the recent crop of initiatives are proposed constitutional amendments limiting the terms of federal judges n175 or authorizing legislation to create an alternate removal mechanism within the judiciary. n176 More modestly, one Senator has proposed suspending the salary of any judge convicted of a felony n177 or changing Senate rules to allow for summary disposition of articles of impeachment for such a judge. n178
Under most state procedures, the state supreme court or a specially constituted judicial tribunal makes removal decisions. If there is an advantage to preserving impeachment as the exclusive removal remedy, it must lie in the involvement of a third (and representative) branch of government as the ultimate arbiter of judicial removal. n179 A prominent federal judge has argued that peer pressure from judicial colleagues can easily cross the line separating necessary discipline from coerced conformity. n180 Preventing internally generated removal decisions provides a judge an additional layer of protection against the parochial politics of the judiciary.
Impeachment looks even more attractive when the alternative is criminal prosecution of sitting judges. Use of criminal enforcement to "discipline" a sitting federal judge is a form of executive control over the judiciary. Although perhaps less ominous than an English king's manipulation of colonial judges, criminal prosecutions [*1242] nonetheless raise troublesome questions for judicial independence. The federal or state prosecutors who initiate criminal proceedings may dislike a judge or may anticipate political advantage from a successful prosecution. n181 Despite Justice Department efforts to centralize any federal prosecution of a judge, n182 local police or prosecutors may have a fair degree of autonomy, particularly in early stages of an investigation. Moreover, even if centralized control dampens excesses of local prosecutors, it brings its own risks. Any prosecution unit assigned a limited area of responsibility may feel pressure to justify its assignment by maintaining a flow of cases within that area.
Although a criminal trial may be the best way of determining the guilt or innocence of a judge facing a criminal charge, n183 it need not follow that a criminal proceeding is the best way of determining a judge's fitness for staying on the bench. Such a determination may involve questions beyond the relatively narrow issues framed by an indictment. Yet, the power to indict may be a de facto power of removal. Every federal judge who has been convicted of a major offense has either resigned or been forcibly removed. n184 Indeed, as the Judge Hastings case suggests, the stigma attached to an indictment may compel removal even when a jury has acquitted the judge of criminal charges.
Each of the five judges indicted in the past ten years has raised the possibility of improper prosecutorial motives. Three of the defendants were members of minority racial or ethnic groups. n185 Four of these judges alleged unfairly harsh treatment because of past dealings with powerful officials. n186 Whether or not these charges [*1243] are true, it is interesting that the prosecution did not score a "clean" success in any of the cases that have gone to judgment. Judge Hastings was acquitted of all charges brought against him; Judge Claiborne, Judge Nixon, and Judge Aguilar were acquitted of the major charges brought against them and convicted on lesser counts (tax evasion for Judge Claiborne, perjury for Judge Nixon, and obstruction of justice for Judge Aguilar). To convict Judge Claiborne and Judge Aguilar, the prosecution needed a second trial in each case. n187
Perhaps none of these facts is startling in the world of criminal prosecutions. Still, there is cause to wonder whether the prosecutors of these cases were sufficiently sensitive to the independent judicial role. Senator Specter, who sat on the trial committee for Judge Hastings, expressed concern about alleged prosecutorial excesses in the investigation of Judge Hastings. n188 The charges against Judge Hastings were arguably the most serious of any in the 1980s impeachments insofar as the impeachment articles alleged criminal conduct directly related to the integrity of the judicial process (involvement in a scheme to extract payments from defendants before his court and, following his indictment, the use of fraudulent documents as a defense in the criminal trial). At the same time, his acquittal on criminal charges and the indirect nature of the evidence of his guilt may explain the relatively closer votes for conviction in the Senate.
The Claiborne case was in some respects more controversial. Both as a criminal defense attorney prior to his appointment and as a federal judge, Judge Claiborne had apparently drawn the ire of a Justice Department Strike Force headed by FBI agent Joseph Yablonski. The prosecution's dogged pursuit of the judge included [*1244] a suspicious attempt to use a convicted felon's testimony against the judge, several unsuccessful attempts to obtain grand jury indictments, a hung jury in an initial trial, and, after several charges were dropped, a successful prosecution on tax charges. n189 Confronted with this record, both the Nevada Supreme Court and a majority of the Senate impeachment trial committee had reservations. The Nevada court voted to dismiss state bar disciplinary proceedings against Judge Claiborne, and nine of the twelve Trial Committee members agreed that the conduct of government investigators and prosecutors warranted further investigation. n190
Judge Nixon was convicted of perjury. The judge's false statements to a grand jury about his contacts with a state prosecutor were, in the view of one Senator, "trivial matters not related to an actual crime." n191 A Senator who sat on the Trial Committee also concluded that any contacts Judge Nixon might have had with the state prosecutor were not criminal. n192 Based on this record, had Judge Nixon not already been convicted of perjury, the Senate may not have chosen to remove him.
One need not conclude that these judges were wholly innocent to understand that their prosecutions, and those of other judges, may have overtones threatening to judicial independence. The exclusive executive control over a decision to investigate or prosecute a sitting judge is more threatening to an independent judiciary than a constitutional removal mechanism controlled by a representative legislature operating on majoritarian principles. Despite the unabashedly political forum, impeachment affords a protection for principled yet independent-minded judges. Members of the House and Senate, each of whom reviews and separately votes on a decision to remove, may not share the biases of a prosecutor interested in enhancing his career or unhappy with a judge's prior rulings. As [*1245] at least one Senator has argued, congressional involvement may heighten Congress's understanding of the conduct of prosecutors. n193
Impeachment, in tandem with the Judicial Conduct Act, should be a viable disciplinary alternative to prosecution of a sitting judge. Had these alternate proceedings been pursued prior to criminal prosecution, one or more of the judges impeached and removed in the 1980s might have been disciplined in a manner less threatening to judicial independence.
The Constitution's framers intended a complex design for impeachment. Yet, an impossibly cumbersome impeachment apparatus is not necessary to preserve judicial independence. Frustration with a system that cannot remove the judicial miscreant could easily overflow to the point of undermining the very judicial independence that the constitutional mechanism is designed to safeguard.
Court decisions arising out of the 1980s impeachments implicitly confirmed congressional authority to address workability problems. n194 Relatively modest reforms could enhance impeachment's workability. Initially, such reforms might follow two directions: (1) to narrow the issues for trial, or proceed without a trial if none is needed; and (2) to increase delegation of trial tasks if extensive evidentiary proceedings are needed. n195
Improving Pretrial Definition of the Issues
Reform designed to increase the parties' ability to narrow the issues for trial seems particularly suited for impeachments that come before Congress with a developed record. The receipt of the Judicial Conference's certification of impeachability (perhaps based on a criminal indictment and conviction) will predispose many members of Congress to vote to remove. That predisposition is unlikely [*1246] to vanish simply because Congress conducts a long evidentiary trial. In such cases, the House and Senate ought to turn their attention elsewhere than to a rote recompilation of a record that may have been gathered and presented two or three times prior to initiation of impeachment proceedings. n196
Although there is a serious question as to whether a judge should be guaranteed a right to a Senate trial to allow Senators to assess the credibility of live witnesses, a rule binding the Senate to repeat evidentiary hearings would be ill-advised. An impeached judge would likely seek further evidentiary proceedings only if earlier proceedings resulted in adverse findings. n197 Even if both the investigating House subcommittee and the Senate trial committee determine to take live testimony, in many cases that testimony will have been rehearsed and delivered on one or more prior occasions. Some of the witnesses from an earlier criminal trial may be unavailable. And, in the best of circumstances, only a fraction of the members of each house will actually hear the live testimony. The remainder will vote based on a more distant view of the record.
Both houses could focus their inquiries on whether the pre-existing record needs to be supplemented to establish new evidence, or to reveal fundamental unfairness or a threat to judicial independence. Even if the defendant shows that a retrial is necessary, the Senate should be in a position to limit its scope. Starting with a fairly concise notion of the case against the judge (based on the Judicial Conference certification and record, any criminal trial record, and the House articles of impeachment), the Senate can make an informed pretrial determination about the need for evidentiary proceedings. To assist in this process, the Senate should permit issue-framing pretrial motions from either side. These motions could be directed to and initially decided by the Trial Committee. n198 Under such a scheme, the Senate could reserve authority to overturn the Committee's determination and require testimony from any witness.
[*1247] There is an analogous rule at work in the structuring of federal civil litigation: the motion for summary judgment provided in Federal Rule of Civil Procedure 56. Such a rule would offer the Senate an opportunity to dispose of the case before trial if there is "no genuine issue as to any material fact" and the moving party "is entitled to a judgment as a matter of law." n199 A major purpose of the summary judgment rule is "to isolate and dispose of factually unsupported claims or defenses." n200 Even if the motion is denied, its disposition may serve to frame the issues so that trial can proceed in a more focused fashion. n201
In responding to the House managers' motions for summary disposition in 1986, the Claiborne Senate Trial Committee was insufficiently sensitive to the advantages of pretrial definition of the issues. Chairman Mathias apparently viewed the summary motions as a mechanism that would usurp the Senate's powers to conduct a trial, or subvert its constitutional duty to do so. n202 This contrasts sharply with the Supreme Court's view of summary judgment "not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" n203 For the Senate, as for the courts, summary judgment could enhance its capability to conduct its affairs efficiently
justly. The Senate or a delegated committee would forego trial only if, after examining the offers of proof, it determined that there was no genuine issue for trial. n204 The concern that the Senate would abdicate its constitutional [*1248] responsibility to conduct a trial is not convincing in this context. n205 In disposing of any such motion, the Senate would retain full authority to repeat any evidentiary phase or to hear entirely new testimony.
These changes are not revolutionary. The Hastings and Nixon Trial Committees sought a pretrial culling of issues not genuinely in dispute. The Hastings Committee ruled on a House motion to exclude irrelevant testimony. At the House's urging, both committees pushed the parties to stipulate to facts not genuinely controverted. n206 Although potentially broader in its impact, a trial committee ruling on a House motion for summary disposition is difficult to distinguish functionally from other steps to limit the issues at trial. n207
In disposing of such a summary disposition motion, the trial committee should consider the application of the judicial doctrine of collateral estoppel n208 as proposed by the House managers during the Claiborne impeachment. Collateral estoppel would allow the Senate to determine, for each previously adjudicated issue, whether retrial is appropriate; therefore, it is a discriminating tool. The doctrine is unavailable if the person against whom it is asserted did not [*1249] have a full and fair opportunity to litigate the issue in the first instance, n209 a limitation that fits nicely into the impeachment context.
Even if both the House and Senate chose not to conduct additional hearings, each would still exercise the vital role of determining whether the behavior documented in the preexisting record constitutes an impeachable offense. The House managers' motion for a summary disposition of the Claiborne impeachment has been misperceived as an attempt to preclude the Senate from making this critical determination. n210 In fact, the managers expressly acknowledged the Senate's role in determining whether given facts constitute an impeachable offense, regardless of whether the Senate foregoes evidentiary proceedings. n211
Modified Senate rules that would permit summary judgment motions are consistent with the established practice of allowing an impeachment defendant to make pretrial motions to dismiss. Judge Hastings, for example, obtained the Senate's pretrial ruling on his motion to dismiss. n212 In many respects, motions to dismiss and for summary disposition offer a litigant and a tribunal the same opportunity to dispose of a matter of law or to narrow the issues. Only a defendant will move to dismiss, so the House has no opportunity to seek judgment "as a matter of law" unless some sort of summary disposition motion is permitted. That imbalance may be necessary in a criminal proceeding to protect a defendant's fundamental constitutional rights, but a decision to remove a judge from office involves no criminal sanction.
Under the Constitution, the Senate may, in addition to removing a federal official, permanently ban that individual from holding any other federal office. n213 This second sanction appears more "penal" [*1250] in nature; its imposition could provide support for a constitutionally grounded argument that the Senate must follow more extensive procedures akin to those observed in a criminal proceeding. To lessen this risk, the Senate could, in any case in which an impeachment defendant is convicted on a summary, pretrial motion, impose only the sanction of removal.
The Senate could also take steps to focus attention on Congress's role in protecting judicial independence. The rules could invite a defendant, in opposition to a House summary disposition motion, to make an offer of proof to show why evidentiary proceedings are needed. For example, a defendant could make an evidentiary showing that he was prosecuted by those who disagreed with his past decisions. Although this evidence might be inadmissible in a criminal trial, it is relevant to concerns about judicial independence. A Senate unburdened by inflexible and cumbersome trial machinery should be better positioned to exercise constitutional removal authority in a manner consistent with judicial independence.
If the Senate's rules expressly recognize the possibility of summary disposition, the House would be encouraged to curtail its own evidentiary proceedings in appropriate cases. The result could be a substantial reduction in the scope and duration of impeachment proceedings in both houses. This reduction could benefit not only Congress but also the defendant. A defendant could choose impeachment with the expectation that the proceeding's costs and delay would not be overwhelming.
Delegation of Fact-Finding Authority
The House and Senate must maintain independent authority over the fact-finding process in any impeachment proceeding. This independent authority assures that any preexisting factual record compiled by an executive or judicial body would not bind Congress. Nonetheless, a lengthy and careful fact-finding process is ill-suited to either house of Congress, particularly in light of the heavy demands on congressional time. n214
Delegation is an obvious answer. The House and the Senate have already delegated many impeachment tasks. Both houses hired large impeachment staffs to conduct the recent proceedings. The House managers delegated substantial trial responsibilities to [*1251] staff counsel. Most prominently, the Senate relied on twelve-member trial committees to conduct evidentiary proceedings. These delegations were successful in relieving interference with regular legislative business, but more delegation is needed if impeachment is to be a workable disciplining tool.
If the most important constitutional task for members of Congress is the independent and informed exercise of conscience on a decision to remove a federal judge, that task need not require personal involvement in the fact-finding process. Indeed, most members of Congress had no direct participation in the fact-finding conducted for the 1980s impeachments. That participation was limited to members of the investigating House subcommittee and the Senate trial committee. But even this reduced involvement may be excessive given the extensive legislative demands imposed on Congress. It is difficult to justify twelve United States Senators spending weeks of their time in a repetition of adversarial fact-finding already performed by experts -- all the more so if the issues are not genuinely in dispute.
But even when confronted with genuine issues, the Senate should consider a bolder solution: delegating trial responsibilities to a specially appointed, outside tribunal consisting of distinguished citizens, perhaps former Senators or judges. Such a tribunal could, with minimal interruption to the Senate's business, conduct initial evidentiary hearings without any Senator's attendance, make preliminary procedural and evidentiary rulings and tender proposed findings on factual issues, including any allegations that a criminal prosecution threatens judicial independence. Backed by adequate resources and expertise, the tribunal's inquiry could, in a necessary case, go beyond any inquiry that a Senate trial committee has the time or expertise to conduct. If properly constituted, the tribunal's proposed findings should carry substantial weight with the members of the Senate.
In its current form, Senate Rule XI places no minimum on the number of Senators needed to constitute a trial committee. The Senate, therefore, might decide to reduce trial committee membership dramatically, perhaps to a single Senator. n215 While such a reduction may be constitutionally permissible, it undercuts the goal of providing a politically representative forum for trying an impeachment. [*1252] That goal would be better served if the Senate delegates trial authority to a politically representative, multimember tribunal.
Such an approach differs from those that would entirely discard the impeachment mechanism in favor of a tribunal granted absolute removal authority. A Senate delegation of trial authority to the tribunal would not deprive either house of its vital role in voting on a removal decision, a participation that may best safeguard judicial independence. A delegation to an outside body, however, raises an as yet untested constitutional issue -- whether such a delegation comports with Article I language according the Senate "the sole Power to try all Impeachments." n216
Lower courts have demonstrated understandable reluctance to review challenges to a Senate's conduct of an impeachment trial. In three cases involving allegedly improper procedural or substantive Senate rulings, the courts have declined to decide the merits, holding instead that the Senate's handling of an impeachment trial was nonreviewable or that the case was premature. n217 These decisions still allow for judicial review under unusual circumstances; n218 precisely what those circumstances might be remains unclear.
[*1253] Although the Supreme Court has yet to confront an impeachment issue, it has shown deference to congressional decisions to delegate powers constitutionally assigned to Congress. In a line of cases involving delegations of lawmaking powers to executive or judicial bodies, the Court has permitted the delegation provided that Congress has set forth an "intelligible principle" to guide the delegatee's actions. n219
Even assuming that the Court might someday take a stricter view of congressional delegations of lawmaking authority, it does not follow that this strict approach would be transferred to the impeachment area. There are a number of pertinent distinctions. The impeachment delegation would be subject to the Senate's plenary authority to review the findings, or even to retry the case. The impeachment delegation is also case-specific, contrasted with the generalized nature of lawmaking delegations. Finally, the Court is less likely to see a separation of powers issue in the Senate's delegation of trial authority to a specially created tribunal that is not a part of the executive or judicial branches.
One commentator has argued that the Senate enjoys an inherent power to appoint masters to conduct an impeachment trial. He views this power as comparable to authority exercised by the federal courts (the courts, like the Senate, lack express constitutional authority to appoint special masters). n220 Although there is no direct precedent for appointment of a special master or tribunal, the House has used specially appointed agents to take testimony in carrying [*1254] out its constitutional responsibility of deciding contested elections of its members. n221 Congress has also delegated other legislative functions to the executive or to support organizations such as the General Accounting Office. n222
Although there is room for doubt, properly circumscribed delegation of the Senate's trial authority is probably constitutionally permissible. To stay within constitutional parameters, the Senate must retain the authority to reverse any decision of a specially appointed tribunal, to rehear the testimony of any witness, and, at the Senate's discretion, to conduct its own de novo trial.
Over the past two centuries, and in the past fifty years in particular, impeachment has become far less important as a tool for disciplining federal judges. The burdensomeness of traditional congressional impeachment proceedings is a major factor in impeachment's decline. House impeachment investigations, as an independent tool for judicial discipline, are now a relic of the past. One tool, the Judicial Conduct and Disability Act, offers a vehicle for resolving most disciplinary matters within the judiciary itself. In infrequent cases, when the judiciary concludes that the judge should be involuntarily removed, Congress should make that sanction available through a workable impeachment mechanism. But the integrity of the impeachment process is undermined if criminal prosecution of a judge precedes impeachment. In such situations, impeachment may be little more than a clumsy and costly but virtually automatic removal device implemented after the prosecutor's heavy hammer has fallen upon a federal judge.
In a case of serious misconduct, criminal prosecution of a sitting federal judge remains appropriate. More often, however, judicial discipline under the Judicial Conduct Act is a wiser course. But a workable impeachment remedy must be available as the ultimate removal sanction. Impeachment is an important safeguard for judicial independence because it involves the Congress in a removal process that may occasionally be inspired by vengeful or self-promoting prosecutors or the parochial politics of the judiciary. Yet, to survive, impeachment must work.
[*1255] Frustration with the massive machinery required to fire the impeachment cannon may increase support for ill-conceived substitutes that are more threatening to judicial independence. That frustration is wisely and most easily channeled to reform of congressional impeachment procedures. The reforms suggested here, more-refined procedures for pretrial definition of the issues and increased delegation of fact-finding authority by the Senate, could be important steps toward preserving a valued constitutional mechanism.
n1. "Impeachment . . . is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at." 1 J. BRYCE, THE AMERICAN COMMONWEALTH 208 (1889).
n2. In each case, impeachment charges related to earlier criminal prosecutions. Judge Claiborne had been convicted of falsifying federal income tax forms. Judge Nixon had been convicted of perjury for false statements made to a grand jury which was investigating his possible involvement with a state criminal prosecution. Judge Hastings had been indicted and later acquitted on charges that he solicited a bribe from criminal defendants before his court.
See infra
Part IV.
n3. W. PLUMER, LIFE OF WILLIAM PLUMER 325 (1857) (quoting remarks of Jefferson to Plumer).
n4. Most states have created alternate removal mechanisms for state judges, utilizing the state supreme court or a specially created tribunal. Many of the proposals to change the federal system are modelled after these state mechanisms.
See infra
Part IV & notes 173-178.
n5. The Pickering (1804) and Humphreys (1862) impeachments arguably strayed from the constitutional ideal to the extent that they were conducted with an apparent disregard for fairness to the defendants.
See infra
text accompanying notes 26 & 28-30.
n6. Recognizing that judicial independence and public confidence in the judiciary are linked, one commentator has suggested that "[i]ndependence and responsibility are poles of a continuum." Baker,
Background Paper,
in THE GOOD JUDGE, REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON JUDICIAL RESPONSIBILITY 21 (1989).
n7. The need to rely on impeachment may, of course, lessen as improvements are made in the selection and discipline of judges. This interaction is discussed in Burbank,
Alternative Career Resolution: An Essay on the Removal of Federal Judges,
(1987-88); Kaufman,
Chilling Judicial Independence,
Another commentator had earlier implicitly recognized these connections in his series of articles on appointment, supervision, and removal of federal judges. Shartel,
Federal Judges -- Appointment, Supervision, and Removal -- Some Possibilities Under the Constitution
(pts. 1-3),
n8. U.S. CONST. art. II, § 4. As "civil officers," federal judges have been the target of all but three of the House's sixteen impeachment votes.
See infra
note 32. The exceptions were: Senator William Blount (1797), President Andrew Johnson (1868), and Secretary of War William Belknap (1876).
Morgan, Eastman, Gale & Areen,
Impeachment: An Historical Overview,
n9. U.S. CONST. art. I, § 2, cl. 5; U.S. CONST. art. I, § 3, cl. 6.
n10. U.S. CONST. art. I, § 3, cl. 6.
n11. U.S. CONST. art. III, § 1. Hamilton championed the good behavior clause as "the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws." THE FEDERALIST NO. 78, at 393 (A. Hamilton) (Bantam Classic ed. 1982). Article III contains another reference to impeachment: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; . . . ." U.S. CONST. art. III, § 2, cl. 3.
n12. H.R. REP. NO. 1313, 96th Cong., 2d Sess. 17-18 (1980); Kaufman,
note 7, at 682-83; Kurland,
The Constitution and the Tenure of Federal Judges: Some Notes From History,
n13. S. REP. NO. 1035, 95th Cong., 2d Sess. 5-11 (1978); R. BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 122-80 (1973); Shartel,
note 7, at 880-909.
n14. For example, members of Congress are elected for limited terms. Each house may discipline or expel a member by a two-thirds vote. U.S. CONST. art. I, § 5, cl. 2.
n15. The debate is summarized in Feerick,
Impeaching Federal Judges: A Study of the Constitutional Provisions,
n16. P. HOFFER & N. HULL, IMPEACHMENT IN AMERICA, 1635-1805, at 68-77 (1984). Noting that 10 of 13 states had constitutional impeachment provisions before 1787, the authors persuasively argue that impeachment in the colonies (prior to 1776) and in the preconstitutional states (1776-1787) had far more impact on the framers of the Constitution than any more distant, and imperfectly understood, English experience.
See id.
at 266-70.
at 78-95.
at 85 (describing the impeachment of a Vermont judge for erroneously attaching property of greater value than was sought in the suit).
at 87-91, 93-95.
n20. 3 A. HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2486 (1907) [hereinafter HINDS' PRECEDENTS].
n21. J. BORKIN, THE CORRUPT JUDGE 219-58 (1962) (listing 55 of 59 recorded investigations based on a compilation from HINDS' PRECEDENTS,
note 20, and C. CANNON, CANNON'S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (1941) [hereinafter CANNON'S PRECEDENTS]). In addition, the House Judiciary Committee conducted investigations of former Justice William O. Douglas (in 1970),
see infra
text accompanying note 35, and of the three district judges impeached in the 1980s,
see infra
note 32.
Judge William P. Van Ness of the district court in New York (in 1818), 3 HINDS' PRECEDENTS,
note 20, § 2489; Judge Grover M. Moscowitz of the district court in the Eastern District of New York (in 1929-1930), 6 CANNON'S PRECEDENTS,
note 21, § 552.
n23. The investigating committees recommended censure of Judge Harry B. Anderson (W.D. Tenn.) in 1930, 6 CANNON'S PRECEDENTS,
note 21, § § 542, 551; of Judge Augustus J. Ricks (N.D. Ohio) in 1895, 3 HINDS' PRECEDENTS,
note 20, § 2520; and of Judge James G. Jenkins (7th Cir.) in 1894,
§ 2519.
Judge William Stephens (D. Ga.) resigned in 1818, 3 HINDS' PRECEDENTS,
note 20, § 2489; Judge Richard Busteed (D. Ala.) resigned in 1875,
§ 2512; and Judge Samuel Alschuler (7th Cir.) retired in 1936, J. BORKIN,
note 21, at 219.
n25. Apparently with removal of the President in mind, Hamilton defended the selection of the Senate over the Supreme Court as the forum to try impeachments because the Senate was best suited to judge misconduct that "may with peculiar propriety be denominated POLITICAL." THE FEDERALIST NO. 65, at 331 (A. Hamilton) (Bantam Classic ed. 1982) (emphasis in original).
n26. P. HOFFER & N. HULL,
note 16, at 206-20.
at 228-55.
n28. 3 HINDS' PRECEDENTS,
note 20, § § 2385-2397.
n29. P. HOFFER & N. HULL,
note 16, at 181-88, 228-31; Thompson & Pollitt,
Impeachment of Federal Judges: An Historical Overview,
n30. Judge Pickering was said to be a drunkard and senile. P. HOFFER & N. HULL,
note 16, at 206-20. Judge Humphreys had abandoned his post to serve the Confederacy. 3 HINDS' PRECEDENTS,
note 20, § § 2385-2397.
n31. One source attributes the Jeffersonians' failure to convict and remove Justice Chase to an inadequate demonstration of judicial misbehavior. P. HOFFER & N. HULL,
note 16, at 228-55.
n32. The House has approved articles of impeachment for 13 judges. Mark H. Delahay resigned before articles of impeachment were presented to the Senate (1872); George W. English resigned during the initial stages of the Senate trial (1925). After Senate trial, seven judges were convicted (John Pickering, 1804; West H. Humphreys, 1862; Robert W. Archbald, 1913; Halsted L. Ritter, 1936; Harry Claiborne, 1986; Alcee L. Hastings, 1989; and Walter L. Nixon, Jr., 1989) and four were acquitted (Justice Samuel Chase, 1805; James H. Peck, 1830; Charles H. Swayne, 1905; and Harold Louderback, 1932). PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF WALTER L. NIXON, JR., S. DOC. NO. 22, 101st Cong., 1st Sess. 423-40 (1989) [hereinafter NIXON IMPEACHMENT]; PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF ALCEE L. HASTINGS, S. DOC. NO. 18, 101st. Cong., 1st Sess. 681-706 (1989) [hereinafter HASTINGS IMPEACHMENT]; PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF HARRY E. CLAIBORNE, S. DOC. NO. 48, 99th Cong., 2d Sess. 289-97 (1986) [hereinafter CLAIBORNE IMPEACHMENT]; J. BORKIN,
note 21, at 219-58.
n33. Judge Archbald was alleged to have accepted "gifts" from litigants in his court. J. BORKIN,
note 21, at 221-22. Judge Ritter was charged with accepting illegal funds and with income tax evasion.
at 243-44. The alleged misdeeds of the three judges impeached during the 1980s are described in Part V
n34. The political dimensions of early twentieth century impeachments are discussed in ten Broek,
Partisan Politics and Federal Judgeship Impeachment Since 1903,
Ten Broek makes a strong case that party politics heavily colored Judge Swayne's 1905 impeachment and trial.
Id. at 185-89.
n35. SPECIAL SUBCOMM. ON H.R. RES. 920 OF THE HOUSE COMM. ON THE JUDICIARY, FINAL REP. ON ASSOCIATE JUST. WILLIAM O. DOUGLAS, 91st Cong., 2d Sess. (1970). The House impeachment investigation is described in Feerick,
note 15, at 1-2.
See infra
Part V.
n37. On the ninth Hastings article of impeachment (which received the highest number of "guilty" votes), 18 Democrats and 7 Republicans voted "not guilty." HASTINGS IMPEACHMENT,
note 32, at 699-700.
n38. Statistics compiled from sources supplied by the Administrative Office of the U.S. Courts (on file at the UCLA Law Review), and from the Federal Judgeship Act of 1990, Pub. L. 101-650, § § 202-203, 104 Stat. 5089, 5098-103.
n39. Statistics compiled from the sources listed in
notes 21, 32 & 38.
See infra
notes 45-53 and accompanying text.
n41. U.S. CONST art. I, § 3, cl. 7. This language is parsed in Burbank,
note 7, at 666-72.
n42. THE FEDERALIST No. 69, at 348 (A. Hamilton) (Bantam Classic ed. 1982) (emphasis added).
n43. The Attorney General apparently assumed that Judge Turner could be prosecuted while still in office.
note 20, § 2486 at 982-83. It is unclear from the contemporaneous and secondary sources whether Judge Turner was ever prosecuted.
n44. As a territorial official, Judge Turner was not subject to the Article III guarantee of judicial tenure. In
United States v. Isaacs, 493 F.2d 1124, 1142
(7th Cir.),
cert, denied,
the Turner investigation was nonetheless cited in support of the constitutionality of a prosecution of a federal judge appointed under Article III.
n45. J. BORKIN,
note 21, at 28, 45.
at 27-45.
n47. Judge J. Warren Davis (3rd Cir.) was indicted in March 1941.
at 119. Judge Albert W. Johnson (M.D. Pa.) was indicted in September 1945, after publicity from criminal and congressional impeachment investigations forced his resignation.
at 181-83.
493 F.2d 1124, 1142-44
(7th Cir.),
cert. denied,
Id. at 1142.
n50. In
Isaacs, id. at 1143-44,
the court of appeals relied on cases such as
Burton v. United States, 202 U.S. 344 (1906)
(U.S. Senator's bribery conviction held not to violate the separation of powers principle) and
United States v. Brewster, 408 U.S. 501 (1972)
(U.S. Senator's bribery conviction does not violate immunity conferred by Constitution's speech and debate clause). The court also cited statements in separate dissenting opinions of Justices Douglas and Black that federal judges could be prosecuted.
Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 140, 141 (1970).
United States v. Claiborne, 727 F.2d 842, 845-49
(9th Cir.),
cert. denied,
United States v. Hastings, 681 F.2d 706, 709-11 (11th Cir. 1982),
cert. denied,
These rulings notwithstanding, one commentator argues that imprisonment prior to impeachment and removal constitutes a de facto and unconstitutional removal of a judge, in direct contravention of the tenure guarantee in article III, § 1. Catz,
Removal of Federal Judges by Imprisonment,
A similar argument was advanced in Note,
Indictment of Federal Judges: Chilling Judicial Independence,
n52. Weingarten,
Judicial Misconduct: A View from the Department of Justice,
(1987-88) (Judges Hastings, Claiborne, and Nixon). Judge Robert P. Aguilar (N.D. Cal.) was indicted on eight counts of conspiracy, obstruction of justice, and racketeering under the Racketeer-Influenced and Corrupt Organizations Act. L.A. Times, June 14, 1989, at A1, col. 3 (home ed.). In March 1990, he was acquitted on one count (the jury failed to reach a verdict on the remaining seven). L.A. Times, Mar. 20, 1990, at A1, col. 2 (home ed.). At a second trial, the judge was convicted on two counts of obstruction of justice. L.A. Times, Nov. 2, 1990, at A3, col. 3. In February of 1991, U.S. District Judge Robert F. Collins of New Orleans was indicted on charges of bribery, obstruction of justice, and conspiracy. N.Y. Times, Feb. 9, 1991, at 7, col. 5.
n53. Federal District Judge Herbert A. Fogel announced his resignation from the bench on January 20, 1978, after the Justice Department threatened to prosecute him.
Judicial Tenure and Discipline -- 1979 -- 1980: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary,
96th Cong., 1st & 2d Sess. 107-08 (1980) (testimony of Clark Mullenhoff); N.Y. Times, Jan. 21, 1978, at 4, col. 6 (late city ed.). In a recent case involving a state judge, a California municipal court judge pled guilty to charges of possession of illegal drugs and resigned as a condition of acceptance of a plea bargain.
In re Scott, 52 Cal. 3d 968, 971, 802 P.2d 985, 986-87, 277 Cal. Rptr. 201, 202-03 (1991).
n54. The impeachments of Judge Ritter and Judge Archbald are described
note 33.
the discussion of the impeachment of Judge Nixon in Part IV,
the authorities cited
note 50. The Supreme Court has yet to address squarely the constitutionality of prosecutions of federal judges. In a civil suit against state judicial officials, the Court observed: "[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights."
O'Shea v. Littleton, 414 U.S. 488, 503 (1974).
See infra
Part V.
n58. Raoul Berger suggests the need to reach cases in which judicial conduct may besmirch the bench, but not allow conviction under criminal law's "beyond a reasonable doubt" standard. Berger,
"Chilling Judicial Independence": A Scarecrow,
n59. One observer suggests that prosecutors show a favoritism toward judges because "most district attorneys want to be judges and most assistant district attorneys want to be district attorneys." D. JACKSON, JUDGES 146 (1974) (quoting Maurice Nadjari, a special prosecutor assigned to uncover corruption in New York's criminal justice system). Favoritism of this sort is less likely if control over prosecution of judges is not in local hands, or if the prosecutor sees political advantage in prosecuting a judge.
n60. Administrative Office Act of 1939, ch. 501, § § 306-307, 53 Stat. 1223-25 (codified as amended at
Chandler v. Judicial Council, 398 U.S. 74, 77-78 (1970).
Id. at 84-89.
Although the majority of the Court held that the petition for a writ of mandamus or writ of prohibition was not perfected, two dissenters agreed with the judge's constitutional argument.
Id. at 129-41
(Douglas, J., dissenting), 141-43 (Black, J., dissenting).
n63. A 1960 California constitutional amendment established the Commission on Judicial Performance, made up of five judges, two attorneys, and two lay members. CAL. CONST. art. VI, § § 8, 18. Following the lead of California, all 50 states have now adopted some form of judicial conduct body. Shaman,
State Judicial Conduct Organizations,
Since 1961, the California Supreme Court, acting on the recommendations of the California Commission on Judicial Performance, has removed 11 judges from the bench. L.A. Times, Mar. 9, 1990, at B1, col. 4 (home ed.).
n65. Kaufman,
note 7, at 682.
n66. Pub. L. No. 96-458, 94 Stat. 2035 (1980) (codified at
332, 372, 604 (1988)). The disciplinary provisions discussed here are codified at
(c) (1988).
(c)(1) (1988).
(c)(7)(B)(i) (recently amended by the Judicial Discipline and Removal Reform Act of 1990, § 402(i), Pub. L. No. 101-650, 104 Stat. 5089, 5123).
n74. Most of the remaining cases were dismissed by the circuit's judicial council. 1990 ANN. REP. OF THE DIRECTOR OF THE ADMIN. OFF. OF THE U.S. CTS. 1-21; 1989 ANN. REP. OF THE DIRECTOR OF THE ADMIN. OFF. OF THE U.S. CTS. 93-96; 1988 ANN. REP. OF THE DIRECTOR OF THE ADMIN. OFF. OF THE U.S. CTS. 98-99.
n75. 1989 ANN. REP. OF THE DIRECTOR OF THE ADMIN. OFF. OF U.S. CTS. 94.
n76. Critics have challenged the constitutionality of allowing councils to withdraw temporarily a judge's cases or to certify that impeachment may be warranted. Edwards,
Regulating Judicial Misconduct and Divining "Good Behavior" for Federal Judges,
Unnecessary and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980,
(1985). Two lower court decisions have upheld the Act's constitutionality. In the
Matter of Certain Complaints Under Investigation, 783 F.2d 1488
(11th Cir.),
cert. denied sub nom.
Hastings v. Godbold, 477 U.S. 904 (1986);
Hastings v. Judicial Conference of the United States, 593 F. Supp. 1371 (D.D.C. 1984)
(upholding constitutionality),
aff'd in part and vacated in part,
770 F.2d 1093 (D.C. Cir. 1985),
cert. denied,
n77. Edwards,
note 76, at 789-91.
n78. H.R. REP. NO. 512, 101st Cong., 2d Sess. 15 (1990); Baker,
note 6, at 74, 87-88.
n79. Kastenmeier & Remington,
Judicial Discipline: A Legislative Perspective,
see also Judicial Independence: Discipline and Conduct: Hearings Before the Subcomm. on Courts, Intellectual Property and the Administration of Justice of the House Comm. on the Judiciary,
101st Cong., 1st Sess. 92 (1989) (statement of Judge John C. Godbold) [hereinafter
Judicial Independence: Discipline and conduct
Judicial Independence: Discipline and Conduct, supra
note 79, at 233-34 (statement of Stephen B. Burbank); Burbank,
note 7, at 660-65.
n81. Among the significant changes effected by the amendment are provisions (1) dispensing with a written complaint under certain circumstances; (2) allowing the Judicial Conference to shortcut certification procedures and immediately forward to the House of Representatives a determination that "consideration of impeachment may be warranted" when a judge has been convicted of a felony and all avenues of direct review are exhausted; and (3) permitting the Administrative Office of the United States Courts to reimburse a judge for legal costs when a complaint has been dismissed. Judicial Discipline and Removal Reform Act of 1990, Pub. L. No. 101-650, § 402, 104 Stat. 5089, 5122-23.
n82. See the chart reproduced at note 39,
When asked why the House had not impeached Judge Martin Manton, who had resigned during a criminal investigation, House Judiciary Committee Chairman Hatton Sumners reportedly replied: "Why kick at the place where the fellow used to be?" J. BORKIN,
note 21, at 28.
n83. AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON FEDERAL JUDICIARY: WHAT IT IS AND HOW IT WORKS 2 (1988); O'Brien,
Background Paper,
in JUDICIAL ROULETTE, REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON JUDICIAL SELECTION 83-84 (1988).
See generally
The American Bar Association and Judicial Nominees: Advice Without Consent?,
A Comparison of Initial Recommendation Procedures: Judicial Selection Under Reagan and Carter,
n85. FBI checks of judicial candidates (supplemented, where requested, by IRS checks of tax returns) may also serve as a restraint on the President's choice of a nominee.
J. CORSI, JUDICIAL POLITICS: AN INTRODUCTION 118-19 (1984); Note,
note 84, at 552.
n86. P. HOFFER & N. HULL,
note 16, at 260.
at 261.
n88. CLAIBORNE IMPEACHMENT,
note 32, at 21. The longest impeachment trial lasted six weeks; the average trial lasts 16 days. S. REP. NO. 1035, 95th Cong., 2d Sess. 4 (1978) (comments from Sen. Nunn).
Report of the Senate Impeachment Trial Comm.: Hearings Before the Senate Impeachment Trial Comm.,
99th Cong., 2d Sess., pts. 1-4 (1986) [hereinafter
Claiborne Trial
n90. Although staff size varied during the two-year investigation, a House document lists five attorneys, one legal assistant, and three clerks assigned to the Hastings inquiry.
Impeachment Inquiry, Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary,
100th Cong., 2d Sess., app. III at ii (1988).
n91. Altogether, the House record cited in the previous note includes one volume containing the hearing record and three volumes of appendices. Counsel for Judge Hastings estimated the cost of the investigations by the House and the Eleventh Circuit to be in excess of $ 2 million. 135 CONG. REC. S3293 (daily ed. Apr. 4, 1989).
n92. The Senate reports list 9 full-time staffers on the Trial Committee staff. In addition, another 16 staffers are identified as assisting the 12 Senators on the Trial Committee. HASTINGS IMPEACHMENT,
note 32, at ii.
Report of the Senate Impeachment Trial Comm. on the Articles Against Judge Alcee L. Hastings, Hearings Before the Senate Impeachment Trial Comm.,
S. HRG. NO. 194, 101st Cong., 1st Sess., pt. I, at 281-94, 341-44, 483, 601-11, 737-40, 855-77 (1989) [hereinafter
Hastings Trial
n94. HASTINGS IMPEACHMENT,
note 32, at 720-21 (statement of Sen. Specter).
n95. 135 CONG. REC. S6453 (daily ed. June 9, 1989).
n96. REPORT OF THE IMPEACHMENT TRIAL COMM. ON THE ARTICLES AGAINST JUDGE ALCEE L. HASTINGS, S. DOC. NO. 156, 101st Cong., 1st Sess. 3-4 (1989) [hereinafter HASTINGS REPORT].
n97. HASTINGS IMPEACHMENT,
note 32, at 625-706.
n98. Claiborne v. United States Senate, No. 86-2780 (D.D.C. 1986). Judge Claiborne's attorneys sought a temporary restraining order and preliminary injunctive relief in the federal district court (D.D.C.). In denying relief, the judge held that the manner of Senate trial was constitutionally delegated to the Senate and nonreviewable by the courts. CLAIBORNE IMPEACHMENT,
note 32, at 189-94. Both the court of appeals,
at 258, and the Supreme Court,
at 288, denied motions for emergency injunctions. Judge Hastings (joined by Judge Nixon as an intervenor) was similarly unsuccessful.
Hastings v. United States Senate, 716 F. Supp. 38, 42-43
aff'd per curiam,
887 F.2d 332 (D.C. Cir. 1989).
Additionally, the Supreme Court denied application for injunction,
110 S. Ct. 7 (1989).
The court of appeals memorandum opinion is published in HASTINGS IMPEACHMENT,
note 32, at 1245-49. The appellate court declined to reach the merits, concluding that the judicial challenge to a pending Senate impeachment proceeding was "premature."
at 1247. Subsequent to his Senate trial and conviction, Judge Nixon brought another suit.
Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990).
The court found the constitutional challenge to be nonjusticiable.
Id. at 13-14.
In re
Immunity Proceedings Concerning William A. Borders, Jr., and
In re
Subpoena Enforcement Against William A. Borders. The filings of the parties in these proceedings are reprinted in HASTINGS IMPEACHMENT,
note 32, at 1287-1608.
n100. The House met for 169 days in 1987, for 130 days in 1988, and for 147 days in 1989. CALENDARS OF THE UNITED STATES HOUSE OF REPRESENTATIVES AND HISTORY OF LEGISLATION, 100TH CONG., 1ST & 2D SESS. (final ed. 1989); 135 CONG. REC. D1431 (daily ed. No. 21, 1989).
n101. Judge Claiborne, under investigation as early as April 1980, was removed in October 1986.
State Bar v. Claiborne, 104 Nev. 115, 134, 756 P.2d 464, 476 (1988);
note 32, at 289-98. The investigation of Judge Nixon began in November 1983; he was removed in November 1989. H.R. NO. 36, 101st Cong., 1st Sess. 23 (1989); NIXON IMPEACHMENT,
note 32, at 427-40. One House member expressed concern that Judge Nixon received over $ 286,000 in salary after his perjury conviction. 135 CONG. REC. E2315 (daily ed. June 27, 1989).
n102. Judge Hastings was under investigation beginning in July 1981. HASTINGS REPORT,
note 96, at 13. He was removed in October 1989. HASTINGS IMPEACHMENT,
note 32, at 685-706.
See supra
note 25.
n104. PROCEEDINGS OF THE U.S. SENATE IN THE TRIAL OF IMPEACHMENT OF HALSTED RITTER, S. DOC. NO. 200, 74th Cong., 2d Sess.
(1936) [hereinafter RITTER IMPEACHMENT]; PROCEEDINGS OF THE U.S. SENATE IN THE TRIAL OF IMPEACHMENT OF HAROLD LOUDERBACK, S. DOC. NO. 73, 73d Cong., 1st Sess.
(1933) [hereinafter LOUDERBACK IMPEACHMENT].
n105. At the Claiborne trial, all cross-examination was handled by the House Managers' outside counsel.
Claiborne Trial, supra
note 89, pt. 1, at 650-1180. The managers conducted the relatively brief direct examinations of the three House witnesses,
at 531-619, and argued pretrial motions,
at 41-118.
pt. 1, at 687, 759, 803-04, 849. It is roughly a ten-minute walk from the Russell Senate Office Building, where the impeachment trial took place, to the House floor. During the Hastings impeachment trial, the House managers agreed, whenever possible, to allow the Senate Trial Committee to continue proceedings while the managers were absent for a House vote. HASTINGS IMPEACHMENT,
note 32, at 723 (statement of Sen. Specter).
n107. During the last 200 years, the Senate grew from a body of 26 Senators representing 13 states to 100 Senators representing 50 states. One crude measure of the Senate's workload is the number of bills and resolutions introduced by Senators. In the first Congress, there were 24 such measures. 1 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA 719-22 (L. De Pauw ed. 1972). In the 100th Congress, there were 4013 such measures. 134 CONG. REC. D1399 (daily ed. Nov. 10, 1988).
n108. See
note 148.
n109. L.A. Daily Journal, Aug. 11, 1989, at 10, col. 2 (quoting Sen. Pryor).
n110. Heflin,
Impeaching Federal Judges: Making the Case for Change,
TRIAL, Nov. 1990, at 32. Senator Heflin counted 37 absent Senators during Judge Claiborne's presentation of his closing argument. CLAIBORNE IMPEACHMENT,
note 32, at 318 (statement of Sen. Heflin).
n111. CLAIBORNE IMPEACHMENT,
note 32, at 312-13, 355-58, 358-60, 361-66 (statements of Sens. Dixon, Exon, Evans, and Levin).
at 336. Senator Stevens voted "present" on each of the Articles of Impeachment.
at 289-97, 336.
n113. The vision that impeachment responsibilities of members of Congress are personal and nondelegable finds implicit support in the Constitution. For example, the House of Representatives is granted "the sole Power of Impeachment." U.S. CONST. art. I, § 2, cl. 5. The Senate is granted "the sole Power to try all Impeachments," with each Senator to be "on Oath or Affirmation." U.S. CONST. art. I, § 3, cl. 6. The use of terms such as "try," "judgment," and "conviction" in the final clauses of article I, § 3, invite analogy to the judiciary, where, with few exceptions, trial judges must personally hear and decide cases.
n114. Congressman James Sensenbrenner told his colleagues on May 22, 1986, that Judge Claiborne had begun his prison term on May 16, 1986. He also noted that there was no apparent House activity "to get the impeachment process started." 132 CONG. REC. H3163 (daily ed., May 22, 1986).
n115. CLAIBORNE IMPEACHMENT,
note 32, at 289-97.
at 303-12, 315-17 (statements of Sens. Hatch and Pryor). The Nevada Supreme Court offered a sympathetic view of Judge Claiborne in a decision allowing him to resume the practice of law.
State Bar v. Claiborne, 104 Nev. 115, 756 P.2d 464 (1988).
Although harshly criticized for asserted procedural irregularities,
see, e.g., Impeaching Federal Judges: Where Are We and Where Are We Going?,
72 JUDICATURE 359, 360 (1989) (remarks of Prof. Ronald Rotunda), the Nevada decision demonstrates the disparity of informed opinion concerning Judge Claiborne.
n117. In explaining his vote to convict Judge Claiborne, Senator George Mitchell of Maine, a former federal district judge, said: "A convicted felon simply cannot sit as a Federal judge. I repeat that, a convicted felon cannot be permitted to sit as a Federal judge. It would totally undermine respect for law and authority in our country." CLAIBORNE IMPEACHMENT,
note 32, at 339. Similarly, Senator Bingaman found it "unacceptable" to leave in office a convicted and imprisoned felon.
at 303.
(c) (1988).
n119. H.R. No. 36, 101st Cong., 1st Sess. 13 (1989) (certification of impeachment proceedings against Judge Nixon); H.R. No. 810, 100th Cong., 2d Sess. 8 (1988) (certification of impeachment proceedings against Judge Hastings). The certification of impeachment proceedings against Judge Claiborne came only after a House Subcommittee had begun to consider his impeachment. H.R. No. 688, 99th Cong., 2d Sess. 7 n.10 (1986).
Conduct of Harry E. Claiborne, U.S. District Judge, District of Nevada: Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the Comm. on the Judiciary of the House of Representatives,
99th Cong., 2d Sess. 46 (1986) (statement of Judge Charles E. Wiggins) [hereinafter
House Claiborne Hearings
]. A Justice Department official offered the only testimony of the judge's misconduct.
at 7-30 (testimony of William C. Hendricks III). Judge Claiborne declined an offer to testify. H.R. No. 688, 99th Cong., 2d Sess. 4 (1986).
n121. 132 CONG. REC. H4712 (daily ed. July 22, 1986) (statement of Rep. Rodino). The House approved the articles of impeachment by a vote of 406 to 0.
at H4721.
n122. The third article recited Judge Claiborne's conviction for two counts of income tax evasion
(1) (1988)) and the court's sentence. CLAIBORNE IMPEACHMENT,
note 32, at 2-3.
Claiborne Trial, supra
note 89, at 1, 150-65.
at 169-87. Articles I and II recited the facts underlying Judge Claiborne's conviction for failure to report information necessary to calculate his federal income tax. CLAIBORNE IMPEACHMENT,
note 32, at 2-3.
n125. The role of the Senate Trial Committee is described
Part IV(B). Attorneys on both sides joined in urging that pretrial motions be referred to the full Senate for an immediate ruling.
Claiborne Trial, supra
note 89, pt. 1, at 188-89, 272-73.
pt. 1, at 108-09. In a post-conviction statement, Senator Mathias argued that in separating the impeachment proceeding from any criminal proceeding, the Constitution had obliged the Senate to conduct a separate trial. CLAIBORNE IMPEACHMENT,
note 32, at 342-43.
n127. At the conclusion of the trial, the third article of impeachment (relying on the prior conviction) failed to receive the required two-thirds majority. Judge Claiborne was convicted by substantial margins on each of the remaining three articles. The votes were as follows:
(Article I)
Guilty - 87,
Not Guilty - 10,
present - 1;
(Article II)
Guilty - 90,
Not Guilty - 7,
present - 1;
(Article III)
Guilty - 46,
Not Guilty - 17,
present - 35;
(Article IV)
Guilty - 89,
Not Guilty - 8,
present - 1.
note 32, at 289-97.
n128. H.R. No. 36, 101st Cong., 1st Sess. 12-16 (1989). The subcommittee record consists of three volumes of subcommittee hearings and exhibits,
Judge Walter L. Nixon, Jr., Impeachment Inquiry: Hearings Before the Subcomm. on Civil and Constitutional Rights, House Comm. on the Judiciary,
100th Cong., 2d Sess. & app. 1 (1988-89) and 101st Cong., 1st Sess. (1989); and two separate volumes containing the transcript and exhibits of the earlier criminal trial, HOUSE JUDICIARY COMMITTEE, 101ST CONG., 1ST SESS., JUDGE WALTER L. NIXON, JR., IMPEACHMENT INQUIRY TRANSCRIPT OF PROCEEDINGS, U.S.A. V. WALTER L. NIXON, JR., CRIMINAL ACTION NO. H85-00012(L) (Comm. Print 1989).
n129. H.R. No. 688, 99th Cong., 2d Sess. 3-6 (1986). The subcommittee's task was eased because Judge Claiborne chose not to testify or offer witnesses in his defense at the subcommittee hearing.
at 4.
Claiborne Trial, supra
note 89, pt. 1, at 629-50, 689-91.
Hastings Trial, supra
note 93, pt. 1, at 291-93.
at 283-85.
Report of the Senate Impeachment Trial Comm. on the Articles Against Judge Walter L. Nixon, Jr.: Hearings Before the Senate Impeachment Trial Comm.,
101st Cong., 1st Sess. pt. 1, 83-92, 153-202, 319-327 (1989) [hereinafter
Nixon Trial
n134. LOUDERBACK IMPEACHMENT,
note 104. According to House Judiciary Committee Chairman Hatton Summers, evidence was presented for ten days to what was "practically an empty chamber" (as few as three Senators were reportedly present at one point).
Impeachment No. 13,
TIME, March 16, 1936, at 19.
n135. S. Res. 18, 74th Cong., 1st Sess., 79 CONG. REC. 8309-10 (daily ed. May 28, 1935). The history of Rule XI, dating from 1904, is explained in Williams,
The Historical and Constitutional Bases for the Senate's Power to Use Masters or Committees to Receive Evidence in Impeachment Trials,
n136. Williams,
note 135, at 540-42.
n137. RITTER IMPEACHMENT,
note 104, at 47, 323-24, 534.
n138. CLAIBORNE IMPEACHMENT,
note 32, at 7-8, 11-12.
n139. Although the Senate declined to vote on Judge Claiborne's posttrial motion to declare the trial procedure unconstitutional, it authorized counsel to defend the lawsuit.
at 95-105, 157-160.
n140. Claiborne v. United States Senate, No. 86-2780 (D.D.C. 1986).
n141. S. Res. 128, 101st Cong., 1st Sess., 135 CONG. REC. S5131-34 (daily ed. May 11, 1989); S. Res. 38, 101st Cong., 1st Sess., 135 CONG. REC. S2803-04 (daily ed. Mar. 16, 1989).
Hastings v. United States Senate, 716 F. Supp. 38, 40 (D.D.C. 1989).
Id. at 43.
Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990).
Id. at 12-13.
Id. at 13-14.
n148. Five of these days were spent on matters related to the Hastings trial (two days to hear arguments, conduct debate, and vote on Judge Hastings's motions to dismiss articles of impeachment; three days to hear closing arguments, conduct debate, and vote on the articles themselves). HASTINGS IMPEACHMENT,
note 32, at 13-57, 625-706. Three of these days were spent on matters related to the Nixon trial (to hear closing arguments, conduct debate, and vote on the articles). NIXON IMPEACHMENT,
note 32, at 361-440. The eight days constitute 6% of the 136 days the Senate was in session during 1989. 135 CONG. REC. D1431 (daily ed. Nov. 21, 1989).
n149. Percentages tabulated from the Senate's recorded impeachment votes. CLAIBORNE IMPEACHMENT,
note 32, at 289-98; HASTINGS IMPEACHMENT,
note 32, at 685-706; NIXON IMPEACHMENT,
note 32, at 427-40. Similar charts were apparently submitted to the court in Judge Nixon's post-conviction suit,
Nixon v. United States, 744 F. Supp. 9, 11 (D.D.C. 1990),
and published by his attorney in Stewart,
Impeachment by Ignorance,
76 A.B.A. J., June 1990, 52, 54-55.
n150. Because a "present" vote has the same effect as a "not guilty" vote (by raising the number of voting senators and the corresponding two-thirds majority required), Senator Steven's "present" vote on each of the Claiborne articles of impeachment is counted as a "not guilty" vote.
note 7, at 686-87 & nn. 207-210; Stewart,
note 149, at 52. Senators were free to view video tapes of all or any portion of the trial.
note 96, at 4. It is unclear whether any Senators did so.
n152. Senator Mathias reported that the Claiborne trial committee enforced a quorum of a majority of the Committee's twelve members. CLAIBORNE IMPEACHMENT,
note 32, at 349. The author attended the Claiborne trial and l recalls actual attendance to have been well above the minimum quorum requirement. For the Hastings trial, Senator Specter reported that "all or almost all of the 12 committee members were in attendance at most sessions." HASTINGS IMPEACHMENT,
note 32, at 723. This compares favorably with the reportedly empty Senate chambers during the Louderback impeachment trial in 1933.
See supra
note 134.
Claiborne Trial, supra
note 89, pt. 1, at 764-65. The Senate again changed the rule in the Hastings and Nixon trials. S. Res. 38 § 4, 101st Cong., 1st Sess., 135 CONG. REC. S2803 (daily ed. Mar. 16, 1989); S. Res. 128 § 4, 101st Cong., 1st Sess., 135 CONG. REC. S5133 (daily ed. May 11, 1989). Although enhancing the ability of each m committee member to participate, the change demonstrated the awkwardness of any fact-finding tribunal made up of twelve members. The questioning of witnesses was protracted and frequently repetitious. One witness for the defense, Charlotte Travaglia, was subject to direct and redirect examination by Judge Claiborne's attorney, cross and recross examination by the House Managers' attorney, and separate questioning by eight Senators, two of whom asked questions on two occasions.
Claiborne Trial, supra
note 89, pt. 1, at 781-826.
n154. Rule XIX,
Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, reprinted in
S. DOC. NO. 3, 101st Cong., 1st Sess. 11, 16 (1989). This limitation on questioning is an apparent concession to the need for efficiency in a full Senate trial.
Hastings Trial, supra
note 93, pt. 1.
n156. For example, expansion in impeachment pretrial proceedings has to some degree followed the model for pretrial proceedings in federal civil litigation.
n157. For example, in the 1933 Louderback trial, the judge's attorneys argued that the trial, "while not criminal, is in the nature and partakes of the character of a criminal proceeding." LOUDERBACK IMPEACHMENT,
note 104, at 796. The House Managers, in contrast, equated impeachment trials to a civil suit for ouster.
at 86-87. The managers argued similarly in the Ritter and Hastings impeachment trials.
note 104, at 41-42; HASTINGS IMPEACHMENT,
note 32, at 674.
n158. CLAIBORNE IMPEACHMENT,
note 32, at 146-50.
n159. This interpretation of the vote was offered in an exchange between Senator Heflin and the presiding officer.
at 147-48.
n160. HASTINGS IMPEACHMENT,
note 32, at 18-31.
at 32-45.
at 53-57.
Hastings v. United States Senate, 716 F. Supp. 38, 41
aff'd per curiam,
887 F.2d 332 (D.C. Cir. 1989).
During Judge Ritter's 1936 trial, the Senate's presiding officer stated: "[A]n impeachment proceeding before the Senate, sitting as a Court, is sui-generis, partaking neither of the harshness and rigidity of the criminal law nor of the civil proceedings requiring less particularity." RITTER IMPEACHMENT,
note 104, at 50.
n164. In 1905, following his acquittal by the Senate, Judge Charles Swayne unsuccessfully sought reimbursement for the costs of his defense. 39 CONG. REC. 3601 (1905).
Hastings Trial, supra
note 93, pt. 1, at 203-07.
n166. Pretrial Order of May 18, 1989,
at 483. Although the Committee gave no reasons for its ruling, it was aware of Judge Hastings's unsuccessful efforts (relying on the same constitutional argument) to obtain reimbursement of attorneys' fees incurred in connection with the Judicial Council's investigation.
Hastings v. Judicial Conference of the United States, 593 F. Supp. 1371, 1384 (D.D.C. 1984),
770 F.2d 1093 (D.C. Cir. 1985),
cert. denied,
Nixon Trial, supra
note 133, pt. 1, at 325.
n168. Judge Claiborne engaged former Senator Howard W. Cannon as one of his representatives during the impeachment trial, possibly, at least in part, to take advantage of Cannon's contacts with Senators. CLAIBORNE IMPEACHMENT,
note 32, at 87.
n169. The votes to remove Judge Hastings were significantly closer than those for the other two judges, but even Judge Hastings was found "guilty" by 74% of the Senators voting on Article IX.
See supra
note 149 and accompanying chart in the text.
n170. Of the four convictions prior to the 1980s, the most recent, that of Judge Ritter in 1936, was obtained by the barest two-thirds majority. 80 CONG. REC. 5606 (1936). Like Judge Claiborne, Judge Ritter was accused of unlawful evasion of federal taxes.
at 5605-06. A reason for the more decisive guilty vote on Judge Claiborne may have been his prior conviction for a tax offense; Judge Ritter had not been indicted or tried for any criminal offense.
The Judicial Tenure Act: Hearings on S. 1423 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary,
95th Cong., 1st Sess. 32 (1977).
n172. Kurland,
note 12, at 687-93.
n173. Senators who participated in the trial committees are divided. Senator Heflin has endorsed fundamental change. CLAIBORNE IMPEACHMENT,
note 32, at 317-19. Senator Specter strongly supports the existing constitutional framework. HASTINGS IMPEACHMENT,
note 32, at 752-53.
n174. Even in states that provide for limited terms or removal of a sitting judge through election mechanisms, some additional removal mechanism may be necessary. California, which has an election mechanism, has relied on its judicial discipline mechanism to remove 11 judges since 1961.
L.A. Times,
note 64.
n175. H.R.J. Res. 99, 101st Cong., 1st Sess. (1989) (reconfirmation required every 10 years); H.R.J. Res. 66, 101st Cong., 1st Sess. (1989) (6-year appointments, 12-year limit).
n176. S.J. Res. 322 & 323, 101st Cong., 1st Sess. (1989). Other members of Congress, believing no constitutional amendment to be required, have introduced legislation to create an alternate removal mechanism. H.R. 3907, 101st Cong., 2d Sess. (1990); S. 1851, 101st Cong., 1st Sess. (1989).
n177. S. 2106, 101st Cong., 2d Sess. (1990).
n178. S. Res. 48, 100th Cong., 1st Sess. (1987). In 1990, a bill to establish a National Commission on Judicial Impeachment was enacted with a larger package of amendments affecting the judiciary. H.R. 5316, tit. IV, 104 Stat. 5089, 5124-27 (1990). The Commission will examine impeachment in the larger context of problems involved in the discipline and removal of a federal judge.
n179. A respected federal judge has argued that constitutionally grounded judicial independence runs stronger and deeper in the federal courts than in state systems. Kaufman,
note 7, at 683 n.14.
at 710-15. On an appellate bench, the close working relationships among judges may create strong pressures to conform. Jackson describes peer pressure as a "formidable" stricture on members of an appellate court. D. JACKSON,
note 59, at 305.
n181. The animosity between Judge Claiborne and the Las Vegas FBI task force that investigated him is documented in
State Bar v. Claiborne, 104 Nev. 115, 131-35, 756 P.2d 464, 474-77 (1988).
n182. Weingarten,
note 52, at 804-05.
United States v. Isaacs, 493 F.2d 1124, 1144
(7th Cir.),
cert. denied,
n184. In July of 1974, Judge Otto Kerner resigned following his conviction and the exhaustion of all direct appeals.
See Isaacs, 493 F.2d at 1124.
Judge Harry Claiborne and Judge Walter Nixon refused to resign following their convictions. Each was removed by the Senate following an impeachment trial.
note 32; NIXON IMPEACHMENT,
note 32.
n185. Judge Hastings and Judge Collins are black. N.Y. Times, Feb. 9, 1991, at 7, col. 5; L.A. Times, Oct. 10, 1989, pt. I, at 4, col. 1. Judge Aguilar is Hispanic. L.A. Times, Aug. 23, 1990, at A1, col. 2.
n186. Judge Aguilar's attorneys alleged that he was singled out because of liberal rulings on marijuana and illegal aliens. L.A. Times, Mar. 20, 1990, at A1, col. 2. Judge Nixon argued that he was targeted for a ruling against the government in a land condemnation case.
First Affirmative Defense, Answer to Articles of Impeachment,
135 CONG. REC. S5789 (daily ed. May 31, 1989). Judge Hastings argued that he was victimized by a government sting operation and, following his acquittal, by an investigation of the Eleventh Circuit's Judicial Council. 135 CONG. REC. S2550-55 (daily ed. Mar. 15, 1989). Judge Claiborne's allegations of prosecutorial misconduct are discussed at length in
State Bar v. Claiborne, 104 Nev. 115, 135-39, 756 P.2d 464, 477-79 (1988).
n187. The jury foreman told the
Los Angeles Times
after announcement of the verdict in the first trial: "Some of the things [Aguilar] did could be looked at as bad judgment. But there is a big difference between bad judgment and a criminal act." He continued: "I was hoping to have a chance to shake his hand because I think he is a great man." L.A. Times,
note 186, at A26, col. 1. After the second jury voted to convict Judge Aguilar on two counts, the jury foreman was strongly critical of the FBI's investigation and negative news stories.
Aguilar Convicted,
76 A.B.A. J., Nov. 1990, at 43. In the fifth prosecution (pending), Judge Collins has responded to bribery charges by accusing the Government of working with a drug dealer "to set up a black Federal judge." N.Y. Times, Feb. 9, 1991, at 7, col. 5.
n188. HASTINGS IMPEACHMENT,
note 32, at 753-54 (statement of Sen. Specter).
n189. These events are described in
State Bar v. Claiborne, 104 Nev. at 135-39, 756 P.2d at 477-79.
After voting to convict the judge on one or more articles, four Senate Trial Committee members expressed concern about the government's prosecutorial conduct. CLAIBORNE IMPEACHMENT,
note 32, at 303, 317-19, 339-41, 371-72 (statements of Sens. Bingaman, Heflin, McConnell, and Gore). Similar concerns were expressed by two Committee members who voted to acquit the judge.
at 303-12, 315-17 (statements of Sens. Hatch and Pryor). During the trial, at least three other panel members (Sens. Pressler, Warner, and Rudman) indicated support for an inquiry into the prosecution's conduct.
Claiborne Trial, supra
note 89, pt. 1, at 873-78. No inquiry was ever held.
n191. NIXON IMPEACHMENT,
note 32, at 445-46 (statement of Sen. Sanford).
at 450 (statement of Sen. Kohl).
n193. HASTINGS IMPEACHMENT,
note 32, at 753 (statement of Sen. Specter).
See supra
Part IV(A) & note 98. In
Ritter v. United States, 84 Ct. Cl. 293, 300 (1936),
cert. denied,
the court held that it had "no authority to review the impeachment proceedings held in the Senate and decide whether the accusations made against the plaintiff" were impeachable offenses.
n195. These changes need not extend to impeachment of Supreme Court Justices. Over the past 200 years, one Supreme Court Justice (Samuel Chase) has been impeached and one other investigated by a House subcommittee (William O. Douglas). This record lends support to an intuitive premise: that nine Supreme Court Justices will not generate an intolerable level of impeachment activity for the Congress. The greater political importance of a Supreme Court position may in any event justify a larger commitment of congressional resources.
note 7, at 688-89.
n196. For example, in the case of Judge Hastings, the factual record was initially gathered and presented to the grand jury and the jury in the criminal proceeding, and was reassembled and supplemented by the investigating committee for the Eleventh Circuit's investigation. H.R. No. 810, 100th Cong., 2d Sess. 7-9 (1988). The House Subcommittee compiled that record yet another time in its investigation leading up to the House impeachment vote.
n197. Judge Hastings, who prevailed in his criminal trial, argued that no further Senate hearing was required. HASTINGS IMPEACHMENT,
note 32, at 18-31.
n198. The Hastings and Nixon Trial Committees assumed an issue refining role in their disposition of certain pretrial issues.
See supra
Part IV(B).
n199. FED. R. CIV. P. 56(c).
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
the Supreme Court held that a moving party who does not have the burden of proof at trial need not affirmatively negate the nonmoving parties' factual assertions; it is f sufficient that the moving party show "an absence of evidence to support the nonmoving party's case."
417 U.S. at 324-25.
Such a showing would then require the nonmoving party to "go beyond the pleadings" in order to defeat summary judgment.
For general discussions of summary judgment theory and practice, see Currie,
Thoughts on Directed Verdicts and Summary Judgments,
Federal Summary Judgment Doctrine: A Critical Analysis,
A critical view of the
decision is offered in Stempel,
A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process,
n201. FED. R. CIV. P. 56(d) provides that if summary judgment "is not rendered upon the whole case," the court is to "ascertain what material facts exist without substantial controvery and what material facts are actually and in good faith controverted."
See supra
note 126 and accompanying text.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)
(citing FED. R. CIV. P. 1).
n204. Professor Burbank argues similarly.
note 7, at 691 & n.232. The summary judgment device has found application not only in judicial proceedings but also in administrative adjudication.
Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973)
(despite request for a hearing prescribed by the underlying statute, the FDA was permitted to withdraw licenses for drugs without a hearing when the determinative facts were not in dispute).
n205. During extensive pretrial proceedings in the Hastings and Nixon impeachments, the trial committees worked with the parties to establish stipulated facts.
Hastings Trial, supra
note 93, pt. 1, at 855-73;
Nixon Trial, supra
note 133, pt. 1, at 326. The trial committee's role in pressuring the parties for these stipulations is functionally similar to other pretrial judicial powers to limit the scope of issues at trial, including a ruling on a motion for summary judgment.
See supra
Part IV(B).
n207. The drafters' notes to the Federal Rules of Civil Procedure recognize the functional similarity between a motion for summary judgment and pretrial orders or agreements designed to narrow the issues or promote settlement. FED. R. CIV. P. 16 advisory committee's note to the 1983 Amendment; FED. R. CIV. P. 56 advisory committee's note to the 1948 Amendment.
n208. RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982). Use of a collateral estoppel concept was suggested by Judge Wiggins,
House Claiborne Hearings, supra
note 120, at 46, and has been supported by at least one commentator.
note 7, at 680-82. Initially a doctrine confined to the federal courts, collateral estoppel effect is now frequently accorded administrative adjudications.
University of Tenn. v. Elliot, 478 U.S. 788, 796-99 (1986);
Rethinking Collateral Estoppel: Limiting the Preclusive Effect of Administrative Determinations in Judicial Proceedings,
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329-33 (1979);
Blonder-Tongue Laboratories, Inc. v. University of Ill. Found., 402 U.S. 313, 329-30 (1971).
note 7, at 683-84 & n. 191. Professor Burbank expresses concern that, if the Senate grants preemptive effect to prior judicial findings in criminal proceedings, "irrelevant incentives" for prosecuting federal judges might be created.
However, such irrelevant incentives already exist,
see supra
Part II(A) and
Part V, and are best countered by creating more workable judicial discipline and impeachment removal mechanisms that offer a realistic alternative to criminal prosecution.
Claiborne Trial, supra
note 89, pt. 1, at 149, 165-67.
n212. HASTINGS IMPEACHMENT,
note 32, at 53-57. Motions to strike were filed in the Louderback and Ritter trials. 6 CANNON'S PRECEDENTS
note 21, § 521, at 731-32; RITTER IMPEACHMENT,
note 104, at 38-50.
n213. U.S. CONST. art. I, § 3, cl. 7. Judge Archbald in 1913 was the only judge among five convicted in a Senate trial this century to have been barred from holding other federal office. 6 CANNON'S PRECEDENTS,
note 21, § 512, at 708. Beginning with Judge Ritter's conviction in 1936, the Senate has not imposed this sanction. 80 CONG. REC. 5606-07 (1936); CLAIBORNE IMPEACHMENT,
note 32, at 297-98; HASTINGS IMPEACHMENT,
note 32, at 704-05; NIXON IMPEACHMENT,
note 32, at 436-39.
See supra
Part III.
n215. During the Hastings trial, only Senator Specter presided at two depositions held at Judge Hasting's request.
Hastings Trial, supra
note 93, pt. 1, at 821-22.
n216. U.S. CONST. art. I, § 3, cl. 6.
Nixon v. United States, 744 F.Supp. 9, 13-14 (D.D.C. 1990)
(despite a sympathetic review of plaintiff's constitutional arguments, court concludes the case was "not justiciable");
Hastings v. United States Senate, 716 F.Supp. 38, 41
(D.D.C.) (court refuses to "second-guess the Senate's impeachment proceedings"),
aff'd per curiam,
887 F.2d 332 (D.C. Cir. 1989)
(challenge to Senate proceedings was "premature," HASTINGS IMPEACHMENT,
note 32, at 1247); Claiborne v. United States Senate, No. 86-2780, CLAIBORNE IMPEACHMENT,
note 32, at 189-94 (D.D.C. Oct. 8, 1986) (absent "extreme actions," the Senate's exercise of power to try impeachments not reviewable),
motion for summary reversal and injunctive relief denied, id.
at 258 (D.C. Cir. Oct. 9, 1986) (per curiam),
application for temporary restraining order denied, id.
at 288 (U.S. Oct. 16, 1986) (Rehnquist & Marshall, JJ.);
Ritter v. United States, 84 Ct. Cl. 293, 300 (1936)
("no authority to review the impeachment proceedings held in the Senate"),
cert. denied,
Note that the Hastings appeal and all the Claiborne decisions were fully reported only in the Senate materials.
n218. In Claiborne v. United States Senate, No. 86-2780 (D.D.C. 1986), Judge Greene, after concluding that judicial review was not appropriate in the circumstances before him, wrote:
I do not mean to suggest that, if a congressional body or member took unusual and extreme actions that would be hard to visualize; for example, holding a contemptuous witness in circumstances constituting cruel and unusual punishment, or that all black judges were impeached, but not any white judges, that a court not inquire or even intervene. Scholars have said that the due process clause applies even to the impeachment power.
Although the Court has been reluctant to review Congress's application of its own rules, in
Powell v. McCormack, 395 U.S. 486 (1969),
the Court rejected arguments that the political question doctrine precluded judicial review of Representative Powell's exclusion from the House of Representatives. The Court concluded that while the Constitution granted the House the power to expel Representative Powell by a two-thirds vote, it lacked the power by majority vote to exclude a properly elected member from taking his seat at the beginning of a Congress when the age and citizenship requirements of the Constitution were met.
See, e.g.,
Mistretta v. United States, 488 U.S. 361, 371-79 (1989);
American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946);
J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
Legislative delegations of power to executive or independent agencies have been struck down in only two cases:
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
Justice Scalia dissented in
and appears more inclined toward strict adherence to separation of powers principles.
Mistretta, 488 U.S. at 413-27
(Scalia, J., dissenting). Where the Court construes congressional actions as threatening the constitutional powers of another branch of government, the Court is perhaps more likely to void the legislation.
INS v. Chadha, 462 U.S. 919 (1983)
(declaring the one-house legislative veto unconstitutional because of a feared diminution of the President's veto power).
n220. Williams,
note 135, at 563-618. Congress is authorized to establish "Tribunals inferior to the Supreme Court." U.S. CONST. art. I, § 8, cl. 9. In dictum, Judge Oberdorfer offered a somewhat more skeptical analysis of the Senate's constitutional authority to assign fact-finding tasks to a special master.
Nixon v. United States, 744 F. Supp. 9, 13 (D.D.C. 1990).
n221. Williams,
note 135, at 565-67.
n222. In
Bowsher v. Synar, 478 U.S. 714 (1986),
Congressional delegation of certain executive powers to the GAO was struck down. That decision, however, does not necessarily suggest a diminished ability of Congress to delegate
functions to the GAO.