76 Pages Posted: 18 Sep 2009 Last revised: 27 Oct 2009
Date Written: September 17, 2009
Ideological judicial selection encompasses more than the affirmative nominating, confirming, and appointing of judges who commit to particular legal interpretations and constructions of constitutional text. It may also include deselection, by way of impeachment and removal (or at least its threat), of those judges subscribing to interpretations and constructions of the Constitution that one disapproves. This negative tactic may be particularly effective when deployed against judges on closely divided collegial courts, such as the U.S. Supreme Court and the U.S. Courts of Appeals, where personnel determine voting majorities and, in turn, majorities determine case outcomes. The Pickering-Chase, Fortas-Douglas, and Christian Coalition impeachments and threats of impeachments illustrate that the use or threat of this tactic is more common than might be supposed. Indeed, recent calls for the removal of Circuit Judge Jay Bybee demonstrate the continuing allure of impeachment as judicial selection. This Article examines the phenomenon of impeachment as judicial selection through Professors Tushnet’s and Balkin’s framework of “constitutional hardball.” In the case of impeachment as judicial selection, Congress plays constitutional hardball by claiming that it is an appropriate tool for political control and a fraternal twin to the modern appointments process. This article details prior episodes of impeachment as judicial selection. It explains why the idea of impeaching as an ex post selection tool proves so tempting. It then considers those legal arguments that justify and contest the claims of this variety of constitutional hardball. Further, the Article makes the case that, contrary to conventional wisdom, constitutional and political developments make impeachment a closer alternative to transformative, affirmative selection than in the past. This relative feasibility heightens the fool’s gold allure of impeachment as judicial selection. Actually impeaching for judicial selection, however, would yield results that many would consider as untoward and unacceptably intruding on judicial independence and the rule of law. This Article briefly considers those significant costs.
Keywords: impeachment, separation of powers, checks and balances, judges, law and politics
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