Impeaching judges should never be off the table

The judicial establishment is angry. President Trump has called for the impeachment and removal of Judge James Boasberg, who halted the administration’s deportation of Venezuelan gang members.  

J. Michael Luttig, a former federal judge and a “Never-Trumper,” warned that the president’s complaints about the judiciary threaten a constitutional crisis. 

Chief Justice John Roberts added his voice with a lecture on the appellate process: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

Most Americans nod in agreement, remembering their high school civics lessons on how judges should be insulated from popular opinion and political pressure. But is this correct? Should unelected federal officials exercising immense power be immune from censure?  

The anti-federalists, critics of the proposed Constitution of 1787, saw danger in total judicial independence. Writing in the New York Journal, the anti-federalist known as Brutus protested that federal judges “are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Brutus knew that judicial service during good behavior was seen as essential to British liberty. Good behavior, a very low bar, means proper and peaceable conduct expected of law-abiding citizens.

Indeed, the colonists in the Declaration of Independence complained that colonial judges served at the pleasure of the king rather than during good behavior.  

But the American situation after 1776 was different. In Britain, a hereditary monarch headed the executive branch and was considered the fount of all justice. 

Judges were executive branch agents. James I, for example, instructed royal judges to refrain from deciding cases dealing with the king’s prerogative until they had consulted with him or his advisors.   

In addition, the House of Lords — a branch of the British parliament — served as the highest court in the land.  If a judge issued an erroneous opinion, this could be appealed to the Lords, who could overturn or correct the decision.

Brutus reminded his readers that the proposed Constitution provided for no appeal to the legislature. Unelected judges serving for good behavior would, as a practical matter, have the final say on the Constitution, statutes and most disputes.

Brutus explained that under the principles of the American Revolution, all government officers were agents of the people. Agency is a fiduciary relationship in which the principal appoints an agent to conduct designated business. The agent is subject to the principal’s ultimate control and must account for his actions.

The principal, then, is superior to the agent. Brutus questioned whether the people could really be superior to their agents in the judiciary under the structure of the federal Constitution.

Impeachment, despite Roberts’s contention, is the only mechanism whereby the people’s agents in the judiciary can be held accountable.

Since 1805, in the words of Thomas Jefferson, impeachment has not even been ”a scarecrow.” This is because of the botched impeachment of Justice Samuel Chase, who habitually gave political harangues from the bench and was unfair toward defendants who did not share his political leanings.

The impeachment trial was handled by John Randolph of Roanoke, who had no legal training. Randolph made a wreck of the presentation and the Senate did not convict.

But that was over 200 years ago. If impeachment of judges is off the table, as Luttig and Roberts believe it should be, then what recourse do the people have when their agents in the judiciary abuse power? Must they wait for the judge to die and hope that a future president has better luck with the next appointment? This sounds like the same recourse the people of England had in medieval times: wait for a wicked king to die and hope providence provided a wise successor.

And what good is appellate review if the problem is the Supreme Court itself? What are the people to do with a court whose majority, say, declares that the millennia-old definition of marriage is contrary to a constitution that mentions nothing about marriage?  

I do not necessarily agree with Trump that Boasberg should be impeached. I have not reviewed his career nor his interpretation of the Alien Act.  

But considering the power of Brutus’s warnings about a lack of judicial accountability and our faulty constitutional structure in this matter, we must not take judicial impeachment off the table.

Without this scarecrow, there is nothing (absent resort to revolutionary principles) to protect the people from those unelected and unaccountable persons ensconced in the judiciary.   

William J. Watkins Jr. is a research fellow at the Independent Institute and the author of “Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.”