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The Revival of Impeachment As a Partisan Political Weapon Richard K Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship Winter 2007 The Revival of Impeachment as a Partisan Political Weapon Richard K. Neumann Jr. Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Richard K. Neumann Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Const. L.Q. 161 (2007) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/679 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. The Revival of Impeachment as a Partisan Political Weapon by RICHARD K. NEUMANN JR Contents 1. Introduction II. The Adoption and Meaning of Constitutional Provisions on Impeachment III. The Evolution of Impeachment Practice A. The First Two Impeachments: Blount and Pickering B. The Chase Impeachment, Its Context, and Its Aftermath C. Between Chase and Johnson D. Johnson E. The Era of Nonpartisanship and Bipartisanship 1. Bellknap to Hoover 2. 1937 3. Ritter 4. Judicial Impeachments After Ritter 5. Nixon and Agnew F. The Revival of Impeachment As a Partisan Political Weapon 1. The Fortas and Douglas Investigations: The Beginning of the Struggle for the Supreme Court 2. Clinton IV. The Future of Partisan Impeachments and Threats of Impeachment A. Thomas B. Evidentiary Burdens in the House and Senate C. The Effect of Party Insecurity on the Partisan Use of Impeachment V. Conclusion Professor of Law, Hofstra Law School. I am grateful for the valuable and kind help of librarians Connie Lenz and Jennifer Wagner as well as the careful work of research assistants Elizabeth Brehm, Rachel Cherny, Marissa Goodman, and Janet Shin. [161] HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 34:2 I. Introduction Impeachment-the procedure through which the House of Representatives accuses and then prosecutes a federal official in the Senate with the aim of removing him or her from office-has historically had either of two purposes. One has been to oust in a nonpartisan or bipartisan manner a corrupt official who abuses power and thereby damages the country. The other has been to inflict, for partisan reasons, a political blow on an official whose conduct the impeaching Representatives simply dislike. Because the second purpose is much less acceptable, the impeaching Representatives attempt to disguise their purpose even when voting on strictly party lines. Together, these two purposes represent the dual personality of impeachment. Beginning soon after the formation of the federal government, impeachment was used as a partisan political weapon. After the failed impeachment of President Andrew Johnson in 1868, a long period of largely nonpartisanship and bipartisanship in impeachments ensued.1 But since 1968, some elements in the Republican Party have been willing to use impeachment as a partisan weapon; to inflict political damage on their opponents and as part of a campaign to control the Supreme Court and the lower federal courts. For example, in 1969, Republican President Richard Nixon's Administration built a case against Justice Abe Fortas that it would have submitted to the House of Representatives for impeachment if Fortas had not made that unnecessary by resigning. Then, in 1970, Nixon's Administration built an impeachment case against Justice William 0. Douglas. Gerald Ford, then House Republican Minority Leader, introduced an impeachment resolution on the floor of the House. But House Democrats outmaneuvered Ford by creating a committee to investigate the charges, which found no grounds for impeachment.3 Abundant historical evidence demonstrates that the Nixon Administration's purpose in each instance was to create a Supreme Court vacancy for Nixon 4 to fill. Those events were seen at the time as aberrations peculiar to the Nixon Administration. But in 1997, House Republican Majority Whip Tom DeLay began threatening to impeach judges who decided cases 1. See infra text accompanying notes 497-705. 2. See infra text accompanying notes 732-781. 3. See infra text accompanying notes 811-846. 4. See infra text accompanying notes 707-718, 740, 750-758, 823-826. Winter 2007] IMPEACHMENT AS A PARTISAN POLITICAL WEAPON 163 contrary to his beliefs. "I advocate impeaching judges who consistently ignore their constitutional role, violate their oath of office and breach the separation of powers," wrote DeLay in the New York Times. "The framers provided the tool of impeachment to keep the power of the judiciary in check.".5 "The judges need to be intimidated," DeLay said a few months later; "[t]hey need to uphold the Constitution;" if they don't, "we're going to go after them in a big way."6 In 1998, House Republicans impeached President Bill Clinton. This was the second time that a president, and the first time that an elected president, had been impeached. In the trial that followed, the House impeachment managers failed to persuade even a simple majority of the Senate to convict, much less the two-thirds required by the Constitution.' In 2005, former House Speaker Newt Gingrich wrote that "the Ninth Circuit judges who found the motto 'one nation under God' unconstitutional could be considered unfit to serve and be impeached."8 Republican Representative Tom Feeney, a co-sponsor of a House resolution that would denounce judges who cite foreign law in interpreting U.S. law, said that a judge who persisted in citing foreign sources may be subject to the "ultimate remedy" of impeachment.9 Later in 2005, after Congressional Republicans enacted legislation intended to cause federal courts to order the reinsertion of Terri Schiavo's feeding tube, some Republicans threatened to impeach the judges who declined to do so. DeLay, who had become House Majority Leader, cautioned that "[t]he time will come for the men responsible for this to answer for their behavior." DeLay went on to complain of what he called "an arrogant and out of control judiciary that thumbs its nose at Congress and the president."10 Senator Tom Colburn's chief of staff told a meeting of Jerry Falwell and other activists, "I'm in favor of mass impeachment if 5. Tom DeLay, Letter to the Editor, Impeachment Is a Valid Answer to a Judiciary Run Amok, N.Y. TIMES, April 6, 1997, at A18. 6. Joan Biskupic, Hill Republicans Target "Judicial Activism, " Conservatives Block Nominees, Threaten Impeachment and Term Limits, WASH. POST, Sept. 14, 1997, at Al. 7. See infra text accompanying notes 849-997. 8. NEWT GINGRICH, WINNING THE FUTURE: A 21ST CENTURY CONTRACT WITH AMERICA 78 (2005) (referring to Newdow v. United States Cong., 328 F.3d 466 (9th Cir. 2003), rev'd sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)). 9. Linda Greenhouse, Rehnquist Resumes His Callfor JudicialIndependence, N.Y. TIMES, Jan. 1, 2005, at A10. 10. Id.; see also Jonathan Ringel, 11th Circuit's Birch Keeps Them Guessing, FULTON COUNTY DAILY REP., Apr. 11, 2005 (discussing how Judge Birch was "the subject of impeachment calls from angry lawmakers"). HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 34:2 that's what it takes."" Similarly, DeLay talked of Congress removing judges who lacked "good behavior."12 Still later in 2005, some Republicans began to threaten to impeach Justice Anthony Kennedy.13 At the time, Republicans had become increasingly nervous that Kennedy, like Justices Harry Blackmun, Lewis Powell, John P. Stevens, Sandra Day O'Connor, and David Souter before him, 14 was evolving from the right wing toward the center or further. This evolution had been evidenced by his opinions for the Court holding unconstitutional the imposition of the death penalty on a defendant who committed the crime while under the age of eighteen,15 the criminalization of gay or lesbian sex,16 the prohibition of local governments from enacting ordinances protecting gays and lesbians from discrimination,17 and the incorporation of prayer into a public school graduation,18 as well as his concurrence in decisions holding the execution of a mentally ill murderer to be unconstitutional 9 and reaffirming a constitutional right to abortion.2 This might seem like the talk of Jacobins. But the Republican use of impeachment-actual impeachment against Clinton in 1998-1999, threatened impeachment to create Supreme Court vacancies in the Nixon Administration, and threatened impeachment to intimidate judges more recently-is well supported by precedent in American history. Historically, there have been four great confrontations between or among branches of the federal government: (1) the struggle between the Federalist-dominated judiciary on one hand, and the Jefferson 11. Ruth Marcus, Booting the Bench: There's New Ferocity in Talk of Firing Activist Judges, WASH. POST, Apr. 11, 2005, at A19; see also Nina J Easton, Rift Emerges in GOP after Schiavo Case, BOSTON GLOBE, Apr. 9, 2005, at Ai. 12. Jason DeParle, In Battle to Pick Next Justice, Right Says Avoid a Kennedy, N.Y. TIMES, June 27, 2005, at AI. 13. Ann Althouse, Innocence Abroad, N.Y. TIMES, Sept. 19, 2005, at A25 (noting that Kennedy "endured calls for his impeachment" because he cited foreign law); DeParle, supra note 12 ("[S]ome notable conservatives are calling for his impeachment."); Jesse J. Holland, DeLay Criticizes Justice Kennedy, 'Activist' Republican Judges, ASSOCIATED PRESS, Apr. 21, 2005, available at http://www.law.com/jsp/article.jsp?id=1113987908498; Dana Milbank, And the Verdict on Justice Kennedy Is: Guilty, WASH. POST, Apr. 9, 2005, at A3; Marcus, supra note 11 ("What started as 'Impeach Earl Warren' ... has now become 'Impeach Tony Kennedy'...."). 14. See Jon D.
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