Login | November 24, 2017

Impeachment little used against judges

DANIEL A. COTTER
Law Bulletin columnist

Published: March 13, 2017

On March 12, 1804, the House of Representatives voted to impeach Samuel Chase, the ninth U.S. Supreme Court justice.

After a trial before the Senate, Chase was acquitted on March 1, 1805. While Chase was the only Supreme Court justice to be impeached (others have been threatened), a number of other Article III judges have been impeached in our nation’s history. This column takes a look at those judges and the outcomes of their impeachment hearings.

Article III judges and lifetime tenure

Article III of the U.S. Constitution provides that Supreme Court justices and inferior court judges “shall hold their Offices during good Behavior,” which has been interpreted to mean that Article III judges have lifetime tenure.

Impeachment powers of Congress

Article II, Section 4 of the U.S. Constitution provides: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Although not expressly stated, federal judges fall within the “Civil Officers” label. The U.S. House of Representatives has impeached Article III judges, and the U.S. Senate has convicted some, even in instances where no crimes have been proven.

A total of 15 Article III judges have been impeached. A brief snapshot of each of these follows.

1. John Pickering — 1804 — U.S. District Court for the District of New Hampshire. Pickering was charged with mental instability and intoxication on the bench. Impeached on March 2, 1803, he was convicted on March 12, 1804, and removed from office.

2. Samuel Chase — 1805 — U.S. Supreme Court. To date, Chase was the only Supreme Court justice impeached. Many believe that President Thomas Jefferson urged this action against Chase because the Supreme Court was made up of all Federalist justices, and Jefferson believed the only way to change the court’s composition was to impeach a justice. The articles of impeachment charged Chase with arbitrary and oppressive conduct of trials; he was acquitted by the Senate on March 1, 1805.

3. James H. Peck — 1831 — U.S. District Court for the District of Missouri. Charged with abuse of the contempt power, Peck was acquitted on Jan. 31, 1831.

4. West H. Humphreys — 1862 — U.S. District Court for the Middle, Eastern and Western Districts of Tennessee. Humphreys was charged with refusing to hold court and waging war against the U.S. government. Humphreys publicly called for secession and was accused of conspiring with Confederate President Jefferson Davis. Humphreys was convicted and removed from office on June 26, 1862.

5. Mark W. Delahay — 1873 — U.S. District Court for the District of Kansas. Delahay was charged with intoxication on the bench. He resigned on Dec. 12, 1873, before his impeachment trial began.

6. Charles Swayne — 1905 — U.S. District Court for the Northern District of Florida. Swayne was charged with abuse of contempt power and other misuses of office. The Senate acquitted Swayne on Feb. 27, 1905.

7. Robert W. Archbald — 1913 — U.S. Commerce Court. Archbald was charged with improper business relationship with litigants. The Senate convicted Archbald, and he was removed from office on Jan. 13, 1913.

8. George W. English — 1926 — U.S. District Court for the Eastern District of Illinois. The House charged English with abuse of power for mistreating litigants and lawyers who appeared before him. English resigned from office on Nov. 4, 1926, and the Senate subsequently dismissed his impeachment proceedings.

9. Harold Louderback — 1933 — U.S. District Court for the Northern District of California. Louderback was impeached on charges that he exercised favoritism in appointing bankruptcy receivers. Louderback was acquitted on May 24, 1933.

10. Halsted L. Ritter — 1936 — U.S. District Court for the Southern District of Florida. Like Louderback, Ritter was charged with favoritism in the appointment of bankruptcy receivers (during the Great Depression, a larger number of bankruptcies were filed) as well as practicing law while sitting as a judge. Unlike Louderback, Ritter was convicted, and he was removed from office on April 17, 1936.

11. Harry E. Claiborne — 1986 — U.S. District Court for the District of Nevada. Claiborne was one of the few Article III judges impeached on charges of actual criminal convictions. Claiborne was charged with income tax evasion and remaining on the bench following a criminal conviction. Claiborne was convicted by the Senate and removed from office on Oct. 9, 1986.

12. Alcee L. Hastings — 1989 — U.S. District Court for the Southern District of Florida. Hastings was charged with perjury and conspiring to solicit a bribe. The Senate convicted Hastings and removed him from office on Oct. 20, 1989.

13. Walter L. Nixon — 1989 — U.S. District Court for the Southern District of Mississippi. Nixon was charged with perjury before a federal grand jury and convicted and removed from office on Nov. 3, 1989.

14. Samuel B. Kent — 2009 — U.S. District Court for the Southern District of Texas. Kent was charged with sexual assault, obstructing and impeding an official proceeding and making false and misleading statements. Kent resigned from office on June 30, 2009, and the articles were dismissed.

15. Thomas Porteous Jr. — 2010 — U.S. District Court for the Eastern District of Louisiana. Porteous was charged with accepting bribes and making false statements under penalty of perjury. Porteous was convicted and removed from office on Dec. 8, 2010.

Of the 15 Article III judges, only Chase sat on the Supreme Court and only one other sat on an appellate court (Archbald was a U.S. Commerce Court judge but had been assigned to the 3rd U.S. Circuit Court of Appeals upon his commission to reduce the workload). Eight of the 15 were convicted, four were acquitted and three resigned.

Conclusion

Impeachment of Article III judges has not been a common occurrence in our nation’s history. More than 60 Article III judges have been investigated for possible impeachment (including Supreme Court justices William O. Douglas and Abe Fortas), but only 15 have faced impeachment proceedings.

Here, after 212 years, Chase remains the only Supreme Court justice to go through impeachment proceedings. The “good Behavior” provision of Article III remains a strong protection against politically motivated judiciary tampering.

Daniel A. Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@butlerrubin.com


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