And the Senate could simply ignore the SCOTUS on this. Then we have a Constitutional crisis. It’s hard to see how anyone could take the SCOTUS seriously after that type of tortured interpretation of self-interest.
It’s hard to call something unconstitutional when it’s specifically mentioned in the Constitution. That’d be calling the Constitution unconstitutional and it’d be impossible to justify.
I mean, it’s conceptually possible. In 1993, the Supreme Court held that impeachment was not susceptible to judicial review at all. But even Walter Nixon didn’t argue the actual “conviction” could be reviewed – he argued that he hadn’t been properly “tried” (since it wasn’t before the whole Senate).
It’s certainly possible that the Court could revisit Nixon (there were three votes for the proposition that impeachment processes should be reviewable). But I rather doubt it. And to take it to the extreme that you propose – that the Court would simply set aside impeachment (whatever that would mean) – is possible, in the way that all things are possible, but my answer remains “no”.
I would not be surprised if a SC would overturn an impeachment if it perceived it as being a blatant political move. The legal basis would be the notion that “high crimes and misdemeanors” is also a part of the constitution can’t just be disregarded completely.
I would be less confident of the SC precedent that you cite. Not on purely legal grounds. Just that - due to human nature - people tend to bend their views on technical matters in alignment with what they perceive to be an compellingly needed result, and I see this being manifested in legal rulings all the time. So I think how the Court rules on judicial review of impeachment when the impeachment is seen as “possibly questionable but legally within the bounds of reason” is not a good guide to how the Court might rule on that same question if it perceived the impeachment as being a blatantly obvious distortion of the constitutional process and the Court itself as being the only possible defense against that.
ETA: I would also not be surprised if the Court looked differently at impeachment when directed at the Court itself.
Well, I do remember a certain member of the executive branch asserting that the 14th amendment was unconstitutional a couple years ago.
Maybe. There is only one member of the Nixon court still left on the Court (Thomas). White, Blackmun, and Souter (call it the more “liberal” wing of the court) seemed to want to leave it open if there was a truly “illegitimate” proceeding. But all of that is procedural – it was entirely about how you impeached a person, not why.
I would say (somewhat outside of GQ) that the impeachment of Samuel Chase (a justice of the supreme court) was a blatant political move and pretty much untethered from the “high crimes” language. But, he was simply acquitted by the Senate; I’m not aware of any notion that a court could intercede in the process.
And (we’ve discussed this elsewhere), it was important to several senators that the impeachment of John Pickering (who had clearly become incompetent due to to some medical/mental issue) that it be tethered to a “crime” (drunkenness on the bench) lest officers of the United States simply serve “at the pleasure of the legislature.” But still, everyone seemed to think it was incumbent on the Senate to police this, not the court system. (And the idea that judges and other officers serve at the pleasure of the legislature appears to be popular in certain political circles at present).
The Nixon court? Thomas is old, but he was only appointed by Bush the elder in '91. Nixon resigned in '74.
ETA: If someone were on the court from 1974 to present, that would be an amazing 46 year tenure. The record is currently held by Justice Douglas at 36 years on the court.
~Max
Uh, nevermind. Different Nixon case.
~Max
Thank you, everyone. This is an interesting discussion.
The court that decided Nixon v. United States in 1993 (the one on judicial review of impeachments).
I subscribe to Ballot Access News, a newsletter about small parties’ and independent candidates’ tribulations on getting on the ballot. Every issue has several court decisions and for the federal cases the writer always who appointed the judge(s) in parens after the judge’s name. A couple months back (Nixon) came up, the first in a long, long time. She must have been very young when she was appointed.
Also note the President is the only one AFAIK immune from being criminally charged while holding office. If there are valid charges - that don’t get thrown out at the first hearing - the judge can be charged, if sufficient evidence convicted, and would probably be unable to carry on their duties. Say, if a deeper investigation determined he had lied under oath to congress during his hearings. I assume a judge convicted of perjury would have a hard time justifying staying on the bench. Laying charges only requires a reasonable case, whatever the legalese definition is.
Of course the political implications would be the kicker. If it were proven a crime was committed (beyond a reasonable doubt) then in any subsequent impeachment, it would reflect on any senator who decided that was not sufficient reason to remove. However, brings false or trivial charges would be seem as a form of harassment and political persecution if there was not suffciient grounds for such antics.
I believe the “high crimes and misdemeanors” is generally taken to mean the crimes affect the way the president (or other officer) does their duties. You are not going to impeach someone for littering or speeding. DUI, maybe. Vehicular homicide, most likely (a smart person would resign first, but one case comes to mind where nothing happened). Sexual assault? Who knows. Certainly office-related cases like bribery should be impeachable.
This is by no means a universally held idea. Some believe it. Some do not. Nowhere is it written that he is (except by DOJ flunkies on the president’s payroll).
Moderator Note
This thread is on the subject of impeachment of Supreme Court judges. Discussion of whether the President can be criminally charged is off limits. Stick to the question in the OP.
Colibri
General Questions Moderator