Season 2, Episode 13 | Judging the Judges: Impeachment and the Courts

In This Episode

In this episode of This Constitution, Savannah Eccles Johnston and Matthew Brogdon explore one of the least understood and most powerful tools in the U.S. Constitution: impeachment. But forget presidents for now, this episode dives deep into judicial impeachments: how they work, why they're rare, and why judges have historically been the ones who get removed.

Savannah and Matthew unpack what it means for Congress to wield this political sword, why it's not a criminal process, and how colorful cases like Samuel Chase and Alcee Hastings shaped our understanding of judicial accountability. Along the way, they raise big questions about what "high crimes and misdemeanors" really means—and whether just being bad at your job is enough to get you booted off the bench.

• (00:00:13) Introduction to judicial impeachment and constitutional process
• (00:01:00) The House indicts, the Senate convicts
• (00:02:23) Impeachment is a political, not criminal process
• (00:03:42) The Senate as jury and the role of the Chief Justice
• (00:05:13) Historical focus: judges, not presidents
• (00:05:58) Corruption, perjury, and Florida judges
• (00:06:29) Why cabinet members get fired but judges get impeached
• (00:07:00) Life tenure vs. good behavior
• (00:08:00) Samuel Chase and the partisan bench
• (00:10:00) The Jeffersonian purge of the courts
• (00:12:00) Why Chase avoided conviction
• (00:13:30) Fast forward to Alcee Hastings (and yes, Florida again)
• (00:14:30) No conviction? No problem—still impeached
• (00:15:20) Hastings’s comeback as a Congressman
• (00:17:00) Can you impeach just for bad rulings?
• (00:18:13) Defining “high crimes and misdemeanors”
• (00:20:00) Bad judgment vs. misconduct
• (00:21:26) The Senate is the ultimate check
• (00:24:01) The case of Judge Pickering and judicial incompetence
• (00:26:05) Balancing judicial independence with accountability
• (00:28:00) Why judicial impeachments are so rare and so hard

Notable Quotes

(00:03:00) "Though this is set up like a criminal trial, it’s important to note this is a political process. This is not a criminal process." — Savannah Eccles Johnston

(00:07:05) "You only get to hold this office as long as you behave yourself. And there’s a way to get rid of you if not." — Matthew Brogdon

(00:12:25) "Had they impeached Chase, it would’ve telegraphed to the court: if you act like a partisan hack on the bench, we will kick you off." — Matthew Brogdon

(00:15:00) "He’s no longer a judge, but Florida elects him to Congress. So I guess… he wins?" — Savannah Eccles Johnston

(00:18:57) "High crimes and misdemeanors are not defined in the Constitution. But 'misdemeanor' back then just meant to misbehave." — Matthew Brogdon

(00:26:05) "There is a fine balance between judicial independence and oversight by Congress. And impeachment is the only tool Congress has." — Savannah Eccles Johnston

Resources and Links

This Constitution  

• https://bit.ly/4fYWnVi

Savannah Eccles Johnston

• https://www.linkedin.com/in/savannah-eccles-johnston-515a72198/
• https://www.instagram.com/savypolitics/

Matthew Brogdon

• https://www.linkedin.com/in/matthew-brogdon-8a21bb89
• https://www.uvu.edu/ccs/people/matthew_brogdon.html

Transcript

[00:00:00] Intro: We the people do ordain and establish this Constitution.

[00:00:13] Savannah Eccles Johnston: Welcome to This Constitution. My name is Savannah Eccles Johnston. 

[00:00:16] Matthew Brogdon: And I'm Matthew Brogdon. 

[00:00:17] Savannah Eccles Johnston: And today we're going to talk about impeachments, but we're actually gonna talk about impeachments over two different episodes. Today we're gonna focus just on. Judicial impeachments. But first we wanna clarify how the impeachment process works.

[00:00:31] Savannah Eccles Johnston: This is a constitutional process and let's figure out who does what in this process. And it is important to note here, I. When we're talking about impeachment, impeachment is different from conviction. Mm-hmm. But we tend to lump these things together. So impeachment starts in the House of Representatives.

[00:00:49] Matthew Brogdon: That's right. 

[00:00:50] Savannah Eccles Johnston: Right. Okay. So give us the constitutional basis for this. 

[00:00:52] Matthew Brogdon: The Constitution says that the house shall have the sole power of impeachment, and that sounds like they're doing a thing by themselves. Right. [00:01:00] Really this is, if this were a legal process, we'd say this was the stage of indictment, right?

[00:01:06] Matthew Brogdon: Where you're bringing charges, 

[00:01:08] Savannah Eccles Johnston: right? 

[00:01:09] Matthew Brogdon: And identifying what you think the person's guilty of, and that there's a reasonable basis for thinking that. But it doesn't actually finally decide whether they're guilty or not. 

[00:01:18] Savannah Eccles Johnston: Right? And all you have to do to get this indictment is get a majority, simple majority in the house.

[00:01:23] Savannah Eccles Johnston: So it's, it's not a very high bar. But then the actual trial occurs in the Senate, and there you need two thirds and presiding over the proceedings is the chief justice of the Supreme Court, and you have managers. From the House of Representatives who will present the case of the house. Basically this is the evidence, and then whoever is being impeached or is on trial, I should say, has their defense lawyers there.

[00:01:48] Savannah Eccles Johnston: So.. 

[00:01:48] Matthew Brogdon: when you think managers, house managers think prosecutors, right? Right. In a trial, that means what is the rest of the Senate in this process? If you've got a defense. Counsel looks like a [00:02:00] trial, right? You've got some members of the house who are up there pressing the case. As prosecutors, you've got somebody presiding, which if it's the president, has to be the chief justice of the Supreme Court.

[00:02:11] Matthew Brogdon: Could be the chief justice anytime this happens, I guess, right? If wanted, but it has to be if it's the president or some other presiding officer. So who's the rest of the Senate playing in this, this, the jury, this theater, this, this play. 

[00:02:23] Savannah Eccles Johnston: Right. The jury. 

[00:02:24] Matthew Brogdon: They're the jury. 

[00:02:25] Savannah Eccles Johnston: They're the jury. And, uh, but a 

[00:02:27] Matthew Brogdon: jury that would like to ask questions.

[00:02:29] Matthew Brogdon: Right. So this is how I'm a little ashamed to say I have not closely watched a lot of impeachment proceedings. Mm-hmm. I'm not a big fan of political theater and so. I haven't watched as many hours of tape on this as some folks have. So did the members of the Senate like to ask questions? 

[00:02:45] Savannah Eccles Johnston: So in the most, do they get to do the recent Trump trial?

[00:02:47] Savannah Eccles Johnston: They did not ask any questions. Okay. It was, uh, just presentations by both the house managers and by, in this case, Trump's defense attorneys. Though this is set up like a criminal [00:03:00] trial, it's important to note. That this is a political process. This is not a criminal process, meaning no one's going to jail.

[00:03:06] Savannah Eccles Johnston: Mm-hmm. At the end of, when we say conviction, all we mean is the most that can happen to you is you'll be removed from office and potentially stripped of the right to ever hold a position of trust in the United States again. Yeah. Purely political consequences. No one's going to jail here. It's separate from the judicial process.

[00:03:23] Matthew Brogdon: Yeah. You know, I ran across this provision that I always forget exists. When I was sort of scanning the constitution for these provisions, and it's an Article III under the, uh, the jury trial requirement. Okay. In Article III it says, the trial of all crimes, except in cases of impeachment, shall be by jury.

[00:03:42] Matthew Brogdon: Right. Which is interesting. It's, you know, they felt like, oh, if we didn't say that, people might actually think. You gotta have a jury trial for impeachment too. Right. And you do kind of, but the sentence, the jury, you don't go get a jury from the community like you normally do. 

[00:03:57] Savannah Eccles Johnston: Right. Right. Because impeachment is, in the end, one of those [00:04:00] checks and balances powers.

[00:04:02] Savannah Eccles Johnston: It's one of those weapons that Congress has against all executive officers of the United States. Mm-hmm. And all judicial officers. 

[00:04:09] Matthew Brogdon: You say it's political. Actually, the history of how the clauses got where they are in the constitution sort of affirms that because when the convention is trying to write up the jurisdiction of federal courts early on, actually, one of the things listed alongside like admiralty and maritime cases and cases involving the revenue was cases of impeachment.

[00:04:30] Matthew Brogdon: Ah, were originally part of federal jurisdiction to be conferred on the federal court. So just imagine. If, like in our system, removal from office was prosecuted in the courts of law, and you, you know, you're shaking your head because it's hard to imagine and they switch it precisely for this reason because they think, well actually this is, this is too political to hand to a judge.

[00:04:53] Matthew Brogdon: On what basis is a court going to make these kinds of decisions? 

[00:04:56] Savannah Eccles Johnston: Right? Because this is an inherently political question, so. [00:05:00] What's interesting is when we think about impeachments, we think about presidential impeachments. Mm-hmm. Because of this, those are the ones that, uh, eat up all the airwaves. But we have not had a single successful presidential impeachment and conviction in our history.

[00:05:13] Savannah Eccles Johnston: In fact, all of our successful impeachments leading to convictions have been in cases involving judicial officers. It's been judged. So we've had 15 impeachments by the house of judges. Mm-hmm. And eight convictions. We've had zero convictions for anyone who is not a judge. So really the development in the thought on impeachment comes from judges.

[00:05:35] Savannah Eccles Johnston: Mm-hmm. Or trying to kick judges out, 

[00:05:37] Matthew Brogdon: Which is weird because you would think that if you had shenanigans that you're gonna have to remove people from office for, wouldn't you expect it out of like cabinet officers and executive officers and stuff? Why are they judged? Why are judges getting in so much trouble?

[00:05:48] Savannah Eccles Johnston: Well, and so what's great is that so many of these cases are about corruption, bribery. Then perjury, lying about that corruption and that bribery. Is 

[00:05:58] Matthew Brogdon: Is there no corruption in the executive [00:06:00] branch? Is that 

[00:06:00] Savannah Eccles Johnston: maybe it's just more tolerated? I don't know what, what is it? 

[00:06:04] Matthew Brogdon: Well, also, I mean, you can fire people in the executive branch.

[00:06:07] Matthew Brogdon: That's true. I mean, like the president, if somebody's taking bribes or misbehaving. Presumably they're the cabinet secretary that's over them, or the president himself can them. I mean, we fire cabinet secretaries on a fairly regular basis. Right? I don't know what the number is. I wonder if we compared the number of cabinet secretaries who have been fired versus the number of judges who have been impeached.

[00:06:27] Savannah Eccles Johnston: Oh, way more. Have been fired. 

[00:06:29] Matthew Brogdon: Yeah. And I bet it's, I bet it's a lot more, although maybe not for bribery, just maybe for being stupid, right. Or disagreeing. 

[00:06:34] Savannah Eccles Johnston: But this is actually a really important point. The only way to get rid of a federal justice outside of them resigning or dying is impeachment. I. That.

[00:06:43] Savannah Eccles Johnston: So that's right. This is it. This is the only method it's, 

[00:06:46] Matthew Brogdon: it is peculiar that in the debates over the constitution, whenever it's being ratified, people who were defending the life tenure of judges in effect, actually refuse to call it life tenure. Alexander Hamilton is super [00:07:00] careful in Federalist 78, which is technically about defending tenure during good behavior, right?

[00:07:05] Matthew Brogdon: So it's not life tenure, it's tenure during good behavior, and he thinks that's really meaningful, like. You only get to hold this office as long as you behave yourself, and there's a way to get rid of you. If not, So the way that the framers and the ratifying, the people engaged in the ratification debates talk about this suggests there's real teeth in impeachment, 

[00:07:27] Savannah Eccles Johnston: right?

[00:07:28] Matthew Brogdon: Yeah. 

[00:07:28] Savannah Eccles Johnston: So let's, let's talk about some of the controversies over impeachment that really impeachment trials of judges have given us. And the first is. We've kind of answered this, does impeachment and conviction require a previous criminal conviction? And of course, our early argument is no, because these are separate processes.

[00:07:48] Savannah Eccles Johnston: Yeah. But it's something that we first figure out in the case of Samuel Chase and then getting to a delightful character named Sie Hastings. So let's start with, okay. Samuel Chase. 

[00:07:57] Matthew Brogdon: Let's talk with, let's, let's start with Chase. Chase is [00:08:00] interesting. Chase's impeachment is actually connected to Marbury versus Madison in a weird way.

[00:08:03] Matthew Brogdon: Okay. So, we talked about Marbury versus Madison as this big. Political slash legal fight between the Marshall Court and the Jefferson Administration with Marshall representing Federalists and Jefferson, obviously representing Jeffersonian Republicans and the Chase Impeachments kind of a continuation of that fight that they were all the Chase impeachment.

[00:08:25] Matthew Brogdon: Marbury are all episodes. And a struggle that comes out of the election of 1800. Mm-hmm. Where Jeffersonians, like, they run the board, right. They win both houses of Congress and the presidency and um, they do a really controversial thing when they get in, they repealed. A judiciary act that had created 18 new federal judgeships.

[00:08:48] Matthew Brogdon: So Federalists sort of going out the door, have been exiled into the wilderness. They go out the door, creating a whole host of new federal judges. Mm-hmm. Like reform the [00:09:00] federal courts in ways that were actually needed. But they do it at the last minute and then Adams gets to a point with these midnight judges, right?

[00:09:07] Matthew Brogdon: Right. So Jeffersonians wind up repealing this. And the controversial thing about it is by repealing the act, they effectively removed 18 federal judges from office, right? Without the dignity of impeachment. These were people who were supposed to have tenure during good behavior. So a lot of federalists think this is unconstitutional.

[00:09:27] Matthew Brogdon: Right. And it obviously was. But Chase is the most sort of rabid federalist. He's the most partisan federalist in the federal judiciary. He's on the Supreme Court, and he actually spends a bunch of time writing letters to other justices. Mm-hmm. After this repeal happens, trying to get Marshall and the other justices to help him get a case in front of the court where they can declare the repeal of the Judiciary Act unconstitutional.

[00:09:53] Savannah Eccles Johnston: Okay. 

[00:09:53] Matthew Brogdon: And he can't do it. The best they can do is to get Marbury versus Madison in front of the court, which doesn't really [00:10:00] address the big issue. So Chase is unhappy. Marbury was a weak sauce. It did not get the job done. Did not get a chance to tell Jefferson, and they'd done this unconstitutional stuff and undermine the judiciary.

[00:10:14] Matthew Brogdon: So he gets pretty hot on the bench. He actually reads a grand jury charge sitting on circuit. One of the important things Supreme Court Justices did was ride circuits around the country and hold circuit courts, and he read a charge to the grand jury on circuit. I think it might have been, I hesitate to say this, I think it might have been Maryland or something, but he reads this grand jury charge in which he just lays into Jeffersonians.

[00:10:38] Matthew Brogdon: About all the unconstitutional things they're doing. It's like a stump speech for why the whole Jeffersonian platform is destroying the country. Okay? And the things they've done are unconstitutional. This really ticks off grand jury charges and federal judges were often printed up in newspapers and things.

[00:10:56] Matthew Brogdon: They, they often were not just like legal documents, they were [00:11:00] sort of like often political speeches, although traditionally they were times when a federal judge would get a chance to sit in front of these ordinary citizens out somewhere in the country. And sort of to them, their legal system, their principles of government, they often had a sort of civics element to them.

[00:11:16] Matthew Brogdon: Well, Chase has made it into this big partisan thing. And Jeffersonians think this is really when you put this together with some of his more, more obnoxious behavior on the bench. Mm-hmm. He would sometimes harass lawyers, refuse to let them present evidence or make legal judgements before they'd even had a chance to talk.

[00:11:33] Savannah Eccles Johnston: Right. 

[00:11:34] Matthew Brogdon: They thought all this adds up to somebody who is guilty of misbehavior. Mm-hmm. You have tenure during good behavior. This is not good behavior. It's, we're gonna kick you off the bench. So the house brings an indictment, a bill of articles of impeachment, enumerating, a bunch of these things. So that's how Chase gets impeached.

[00:11:52] Matthew Brogdon: But he doesn't get convicted, right? So why doesn't he get convicted is the question. Like he's been obnoxious clearly. Why didn't they boot him [00:12:00] off? Not to mention, by the way, another important piece of information here is in the Chase impeachment, Jeffersonians have 25 seats in the Senate and Federalists have 9 25 to nine, right?

[00:12:12] Matthew Brogdon: It should be easy. Should be, this should be open and shut. They've got, you know, two thirds easy. 

[00:12:19] Savannah Eccles Johnston: Right. 

[00:12:19] Matthew Brogdon: So why doesn't he get impeached? 

[00:12:20] Savannah Eccles Johnston: Well, he's gonna make the argument that he has no criminal conviction. 

[00:12:24] Matthew Brogdon: I didn't do, I didn't break the law, 

[00:12:25] Savannah Eccles Johnston: right? 

[00:12:26] Matthew Brogdon: Sure. I'm a partisan hack. You don't like what I said?

[00:12:28] Matthew Brogdon: I. Right that I didn't break the law. 

[00:12:30] Savannah Eccles Johnston: So he doesn't get convicted. 

[00:12:31] Matthew Brogdon: He doesn't, it fails. He manages to convince like five, I think it's five Jeffersonian Senators to vote against impeachment. 

[00:12:40] Savannah Eccles Johnston: Right. But this is not the final word on criminal conviction. I. And impeachment. We fast forward to, uh, by 

[00:12:48] Matthew Brogdon: By the way, can I just say yes.

[00:12:49] Matthew Brogdon: I think it's a little unfortunate that they didn't seize the opportunity to do this because had they impeached chase it would've, it would've telegraphed to the court that [00:13:00] no, if you act like a partisan hack on the bench and weighed into politics. It's misbehavior, we will kick you off. You need to keep acting like a judge and convince the public that you're being judicial 

[00:13:11] Savannah Eccles Johnston: right.

[00:13:11] Matthew Brogdon: And not running for office or we'll remove you. 

[00:13:15] Savannah Eccles Johnston: Right. Which goes to a question of whether there's a distinct character about the judicial branch. It has to be in some way less political and 

[00:13:22] Matthew Brogdon: Congress missed its chance to. 

[00:13:24] Savannah Eccles Johnston: Right. They missed that chance. So moving forward all the way until the nineties, 1990s.

[00:13:30] Matthew Brogdon: Yeah. 

[00:13:31] Savannah Eccles Johnston: We get. Air Hastings 

[00:13:32] Matthew Brogdon: on this show, you have to, you have to specify right? When we say nineties, 1790s, 1890s, I mean 1990s. Occasionally we might even be talking about English common law, and it might be the 1390s or something. You never know. 

[00:13:44] Savannah Eccles Johnston: So we've got AIE Hastings, and he's a federal judge in Florida, because of course it's Florida.

[00:13:49] Savannah Eccles Johnston: And he has been, I don't worry, I've got more Florida jokes coming. So he is, it's my home state. I know. That's why this is coming. Thanks. That's fine. So Sie Hastings, uh, his, uh, a [00:14:00] judge. Who has been accused of bribery and corruption and then lying about it under oath, this goes to the house. Mm-hmm. And they impeach him.

[00:14:12] Savannah Eccles Johnston: Then it goes to the Senate and he will make the argument like Samuel Chase in the Senate, there has been no criminal conviction, so you don't have the authority. To convict me in the Senate and remove me from office around the same time you have United or uh, Nixon versus United States. So this is not Richard Nixon, I think his name is Walter Nixon, right?

[00:14:34] Savannah Eccles Johnston: Mm-hmm. Walter Nixon, in which the court takes up a similar question here and basically finds that you don't need a criminal conviction. For the Senate to exercise its conviction powers. So the Senate takes this and says, Uhuh, you are going to be convicted and removed from office. But they decline to also find him unfit to hold a position of public trust again in the [00:15:00] future.

[00:15:00] Savannah Eccles Johnston: Mm-hmm. So he's only given that half conviction. So he's removed from office. He's no longer a federal judge. He was not disqualified. He's not disqualified. He will then go and run for a house seat from Florida and hold it for the next 20 plus years until his death. So he kinda wins in the end, I guess, because he is not disqualified and I guess Florida has vindicated him.

[00:15:22] Savannah Eccles Johnston: They like these, I guess that's winning. Florida likes these kinds of people. 

[00:15:26] Matthew Brogdon: You know, this is the thing people talk about. Name recognition, Uhhuh in elections. There you go. Yeah. I think Hastings won on name recognition. People thought, oh, you think it's 

[00:15:33] Savannah Eccles Johnston: name recognition and not, we kind of like the spirit of a man who can have the gumption to run for office again after being, I don't know, being convicted, I 

[00:15:41] Matthew Brogdon: don't know.

[00:15:41] Matthew Brogdon: But in the interest of defending the honor of my. Date, I'm gonna say it was just ignorance and not, you know, like, it's like, Hey, we've heard of him, we know 

[00:15:50] Savannah Eccles Johnston: that guy. He's kind 

[00:15:51] Matthew Brogdon: famous. You know? And maybe the other person in there just had a really weird name. 

[00:15:54] Savannah Eccles Johnston: Yeah. 

[00:15:55] Matthew Brogdon: That they didn't recognize and they thought Hastings, that sounds Aussie Hastings.

[00:15:59] Matthew Brogdon: It [00:16:00] sounds like someone who should be in public office. 

[00:16:02] Savannah Eccles Johnston: Right. And then once he wins once then you've got the incumbent advantage. The incumbent advantage. 

[00:16:06] Matthew Brogdon: And I, you know, I don't know, people don't read the newspaper. 

[00:16:09] Savannah Eccles Johnston: No. So. Hastings and the United States versus Nixon. Sorry, Nixon versus the United States.

[00:16:16] Matthew Brogdon: Oh, by the way, we should say, it is important to know that, that districts do sometimes do this though, because they did it with, who was it from Harlem back in the, the sixties, had the Supreme Court case about him. 

[00:16:28] Savannah Eccles Johnston: I don't know. It only sticks out in my mind when it's, yeah, 

[00:16:30] Matthew Brogdon: he had been, uh, he had been exp uh, the house refused to seat him because of corruption in the use of his funds and his district reelected him anyway.

[00:16:40] Savannah Eccles Johnston: Ah. That's delightful. Okay, so this William 

[00:16:43] Matthew Brogdon: Clayton Powell, 

[00:16:45] Savannah Eccles Johnston: I'm impressed you remember this. This was Powell versus 

[00:16:46] Matthew Brogdon: McCormick. I, 

[00:16:48] Savannah Eccles Johnston: I'm impressed you know this. So this answers the question for us. Do you need a criminal conviction prior to impeachment? Now, what's interesting is, as we'll talk about next episode, when [00:17:00] this comes to the two impeachment trials of Donald Trump, this is again, an argument that's made you need a criminal conviction before.

[00:17:08] Savannah Eccles Johnston: You can, it's an early argument, a criminal conviction before the Senate can convict him, or at least, and you can point back to Sie Hastings and say, no, you don't. This is pretty settled at this point. Yeah. 

[00:17:18] Matthew Brogdon: The somewhat moderated argument is you at least have to be subject to criminal, you know, like you're accused of doing something that could be indicted after you leave office.

[00:17:28] Savannah Eccles Johnston: Right. But I don't even think that's necessarily true. No. So, and that leads us to our second question, which is, can you impeach justices just because you don't like their rulings? Nothing that would rise to the level of criminal behavior. Nothing like that. This is really pushing it. Yeah. Saying impeachment is, in this case, a purely political tool.

[00:17:48] Savannah Eccles Johnston: The only political tool that Congress has to reign in the federal judiciary, therefore. Can you fire judges? Can you impeach them just 'cause you don't like their rulings? And this is, uh, a modern [00:18:00] issue. You have President Trump calling for impeachment of judges who made rulings he disagreed with, and you have the Chief Justice of the Supreme Court saying it is a long established precedent that you cannot impeach justices just because you don't like their rulings, that doesn't qualify.

[00:18:13] Savannah Eccles Johnston: She disagrees with their 

[00:18:14] Matthew Brogdon: decisions, right? Yeah. So, so. 

[00:18:16] Savannah Eccles Johnston: What do you think? Uh, 

[00:18:17] Matthew Brogdon: also, I mean, maybe we should acknowledge like the argument for this is grounded kind of in the language of the Constitution as the idea that there's gotta be something criminal, 

[00:18:26] Savannah Eccles Johnston: okay. 

[00:18:26] Matthew Brogdon: About their behavior. Because Article two, section four says the president, vice president, and all civil officers of the United States.

[00:18:33] Matthew Brogdon: So this would be anybody who's not a member of Congress and who's not in the military. Shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. 

[00:18:48] Savannah Eccles Johnston: Right? But high crimes and misdemeanors are not in any way defined, right? We know what treason is.

[00:18:53] Savannah Eccles Johnston: We know what bribery is. We don't know what high crimes and misdemeanors are. 

[00:18:57] Matthew Brogdon: I think people now go, oh, misdemeanors. No, those are, I know what [00:19:00] those are. That's like, uh, you know, shoplifting. 

[00:19:03] Savannah Eccles Johnston: Right, right, right, right, right, right. Isn't 

[00:19:03] Matthew Brogdon: it? 

[00:19:03] Savannah Eccles Johnston: But again, we separate these processes, 

[00:19:05] Matthew Brogdon: but that's not what it meant back then.

[00:19:07] Matthew Brogdon: No. Misdemeanor like literally means to mis mean oneself means literally to misbehave. 

[00:19:13] Savannah Eccles Johnston: Right. 

[00:19:14] Matthew Brogdon: And in this sense, like, uh, the, the article three when it says that judges shall hold their offices during good behavior. Right. Good behavior is just the opposite of misdemeanor, right? You can misdemeanor yourself or you can behave well, like behave badly, behave well.

[00:19:29] Matthew Brogdon: This is actually the, the alternatives, but some people do argue that these are sort of terms of art that have to be understood as being some kind of violation of the law. Mm-hmm. Like you did something illegal that you could face some kind of consequences for. And I do think that that faces a sort of uphill climb whenever you think about what the language actually means.

[00:19:50] Matthew Brogdon: Like there are lots of ways you could betray the public trust, 

[00:19:53] Savannah Eccles Johnston: right. And 

[00:19:53] Matthew Brogdon: misbehaves in office and does the public interest, a lot of damage that isn't just sort of poor [00:20:00] judgment, but actually like malicious intent or, mm-hmm. You know, I actually, I think we should sort of maybe answer the questions that's including competence.

[00:20:07] Matthew Brogdon: Like if you just. Really bad at your job, right? It's hurting the public interest, 

[00:20:12] Savannah Eccles Johnston: right? 

[00:20:12] Matthew Brogdon: Why not say that's misbehavior, right? Being bad at your job. 

[00:20:16] Savannah Eccles Johnston: Well, there's two other complicating factors here, and again, one is, which we've already mentioned, this is the only way to get rid of federal judges is through impeachment.

[00:20:25] Savannah Eccles Johnston: Therefore, it can't be an exclusively legal process when you're talking about good behavior. And second is, what are the consequences? Of impeachment. Mm-hmm. They are not legal consequences. Right. You're not going to jail. The worst that happens to you is you lose this position of trust. You lose a political office and potentially you're barred from ever holding a political office again. The standards for what it takes to be convicted in a criminal court and what it takes to be convicted in an impeachment trial are thus very different standards.

[00:20:56] Matthew Brogdon: Right, and even the conviction procedure. I mean, we get a [00:21:00] few indications of that in the text, 

[00:21:01] Savannah Eccles Johnston: right? 

[00:21:01] Matthew Brogdon: When it gives the Senate the power to trial impeachments, it tells us that conviction of impeachment. It doesn't extend further than removal from office or disqualification from future office holding, and it doesn't preclude additional civil or criminal prosecution, right?

[00:21:19] Matthew Brogdon: So you can still just 'cause you got removed from office for taking a bribe, you can now be indicted and tried for taking a bribe. Separately and face the criminal consequences of that, or sued by some person who was harmed. Right. 

[00:21:33] Savannah Eccles Johnston: But the key is it's a separate process to determine those legal ramifications.

[00:21:38] Savannah Eccles Johnston: That's right. So, but that's all fine and good. This is kind of the theory of it. Awesome. Well, but in application, it feels kind of messy. To remove judges based on potentially the political ramifications of their rulings. 

[00:21:52] Matthew Brogdon: Mm-hmm. So, I mean, can you give any definition of that? I mean, you're suggesting that high crimes, misdemeanors, [00:22:00] or failing to exhibit good behavior is kind of a political, not a legal standard.

[00:22:06] Matthew Brogdon: So is there any boundary to it? 

[00:22:08] Savannah Eccles Johnston: I don't know. I think potentially the answer is no. It's only a kind of historical precedent and what Congress is willing to drag itself into. 

[00:22:17] Matthew Brogdon: So there's an institutional limit that says, well, if you can convince two thirds of the Senate 

[00:22:22] Savannah Eccles Johnston: Yeah, 

[00:22:23] Matthew Brogdon: to convict. 

[00:22:25] Savannah Eccles Johnston: Something was then, I guess it 

[00:22:26] Matthew Brogdon: was good enough, 

[00:22:26] Savannah Eccles Johnston: right?

[00:22:26] Savannah Eccles Johnston: And by the way, that two thirds is a remarkably difficult thing to do. I mean, it's only happened eight times in our entire history. So that itself seems to be the only necessary limit. 

[00:22:36] Matthew Brogdon: And in Chase's case, it even failed when the. When the one party had the votes, right, they lost voters. This happens again with, uh, we'll talk about the next episode, but it's gonna happen again when republicans are in control and they can't convict Johnson.

[00:22:55] Matthew Brogdon: So even partisan control. If the number of seats is not [00:23:00] always enough to get a conviction. You can't even rely on a party line vote. 

[00:23:03] Savannah Eccles Johnston: You know, and Hamilton speaks about this Yeah. In the Federalist papers, impeachment is so difficult because you can't rely on just your faction. Mm-hmm. You need to have some kind of cross factional support for conviction.

[00:23:15] Matthew Brogdon: So just an aside, I mean, some people do claim that impeachment is not the only way to get rid of a federal judge. Ah, 

[00:23:23] Savannah Eccles Johnston: you're gonna bring this up? 

[00:23:24] Matthew Brogdon: Yeah. I'm gonna bring it up real quick. But there was actually a method in England for a superior court removing judges of a lower court, and the standard was good behavior.

[00:23:34] Matthew Brogdon: Mm-hmm. They could issue a thing called a writ of ski ray days. It's hilarious. To remove the lower court judge if they were guilty of misbehavior or misdemeanor on the bench. And some people have argued that art, when Article III says judges hold their off in good behavior, it means the Supreme Court could reach out and just remove a lower court judge who's misbehaving.

[00:23:53] Savannah Eccles Johnston: And in turn, could the lower court justices remove Supreme Court Justices? No, 

[00:23:56] Matthew Brogdon: because it always is. Be a writ that flowed from a [00:24:00] superior court to an inferior one. So, so that would mean this would not be a means of controlling Supreme Court justices, but it, it has actually played a role because at various times people have suggested that one thing we should do in the federal judiciary is empower the Supreme Court to discipline lower court judges, and in fact, our very first successful impeachment.

[00:24:21] Matthew Brogdon: Of a judge, which was John Pickering, who's a federal district judge, who was actually a poor guy who was losing his mind. Okay. But also tended toward drunkenness. Oh. But the biggest problem was, he was losing his grip on reality. His mental faculties were slipping in a very significant way, and this was affecting, you know, it was like writing limericks into decisions or something and sort of doing wild things on the bench.

[00:24:43] Matthew Brogdon: His clerks actually wrote to the Supreme Court. To the president and said, you've got to replace him. And they actually sent a circuit judge to go take his place on the bench and sort of relieve him of duty. Mm-hmm. So he remained a judge, but they took his [00:25:00] caseload away and gave it to the circuit judge.

[00:25:02] Savannah Eccles Johnston: Right. 

[00:25:03] Matthew Brogdon: But then the circuit judge went away whenever the repeal act went through, funny enough. And so they had to impeach him, but they wound up in the impeachment proceeding. He hadn't actually done anything legally wrong. It didn't even seem like he'd done anything malicious. It was just his mental faculties were slipping and he couldn't do his job.

[00:25:19] Matthew Brogdon: They actually wanted him to resign and he refused. 

[00:25:23] Savannah Eccles Johnston: Right. 

[00:25:23] Matthew Brogdon: So they had to impeach him on the grounds of incompetence. 

[00:25:27] Savannah Eccles Johnston: Right. 

[00:25:27] Matthew Brogdon: So this was one of those cases where actually a lot of people have looked at this and said, there actually ought to be a way. For example the Supreme Court to identify cases where judges are incompetent and remove them or discipline them in some ways.

[00:25:40] Savannah Eccles Johnston: Right. For now, there is not, but we are right. But we don't, 

[00:25:41] Matthew Brogdon: we've, we've never, that's always been a constitutional debate and people have pointed at the constitution says, no, that good behavior thing is talking about impeachment. 

[00:25:49] Savannah Eccles Johnston: Yeah. 

[00:25:49] Matthew Brogdon: So we, we haven't, we haven't gone that route. We could, 

[00:25:53] Savannah Eccles Johnston: well, let's, so it's conceivable getting back to impeachment and just how kind of freewheeling you can be [00:26:00] with impeachment when it comes to judges for misbehavior and how you define misbehavior.

[00:26:05] Savannah Eccles Johnston: There is a fine balance you have to strike here between judicial independence. Mm-hmm. And. Oversight by Congress on the judiciary. And again, the only way to remove justices is through impeachment. So how do you balance impeachment with judicial independence? And maybe your answer is, the Senate sets such a high bar, two thirds of the Senate sets such a high bar that that does it for us.

[00:26:28] Savannah Eccles Johnston: But there is a balance that has to be struck here. 

[00:26:30] Matthew Brogdon: I mean, this has been a, this is a self-imposed restraint. On the Senate. Mm-hmm. I don't think there's any way to appeal a decision of conviction. Mm-hmm. In a case of impeachment though, we'll, we'll get, in our next episode we're gonna have to talk about what happens if the, you know, a president thinks something's been gone, gone awry, but if the Senate convicts, there's no real appeal from the Senate's decision.

[00:26:53] Matthew Brogdon: It's final. So if you can convince two thirds to convict. I guess that's it. And so to [00:27:00] the extent that there's any kind of limitation where they go, well, that's not a good reason. Mm-hmm. Or that's not a good enough reason. It's totally self-imposed. It's a matter of self-restraint. There is actually a reason.

[00:27:10] Matthew Brogdon: It's sort of the, the Maximalist position on this being a political power, I would say, well, let's just say we thought if a judge goes so far off the rails in their legal opinions, that they're construing the law in a way that. Two thirds of the Senate thinks it is destructive to the public interest and just wrong.

[00:27:29] Matthew Brogdon: Mm-hmm. The judge is just wrong about the law. They're deciding cases in ways that are hurting the public and distorting the constitution and distorting our laws. If you can convince two thirds of the Senate of that, is that misbehavior, is that a failure of good behavior? Like basically judicial incompetence?

[00:27:46] Matthew Brogdon: Your interpretation of the laws is so wild. Destructive that we think you just shouldn't be a judge anymore. Right. Is that a good enough reason? And I'm. I'm actually open to [00:28:00] the argument that might be a good enough reason, but it's gonna be hard actually to convince two thirds of the Senate that a legal opinion is so far wrong also, 

[00:28:11] Savannah Eccles Johnston: especially as divided as the Senate as we have today.

[00:28:14] Savannah Eccles Johnston: Yeah. Also, 

[00:28:14] Matthew Brogdon: I'm hard pressed to come up with an example of this, like a federal judge that has gotten so carried away in their interpretation of the laws that you could actually convince people that they're just. Kooks. We say this like we had the whole Impeach Earl Warren thing, 

[00:28:28] Savannah Eccles Johnston: right?

[00:28:28] Matthew Brogdon: For a decade. And now you know, you've got Trump and others saying, impeach Jim Bosberg. 

[00:28:34] Savannah Eccles Johnston: Right? And you have movements to impeach. Yeah, Alito and Thomas. 

[00:28:38] Matthew Brogdon: But actually the legal opinions they're objecting to are actually held by a very large number of people, right? So it's hard to argue they're just outside the Overton window, 

[00:28:48] Savannah Eccles Johnston: right?

[00:28:48] Matthew Brogdon: Like just completely outside the realm of acceptable opinion, 

[00:28:51] Savannah Eccles Johnston: right? So. This brings us back to how do you balance judicial independence with the impeachment [00:29:00] process? And the answer is it's kind of self balanced. The only function you need is the Senate. Maybe Hamilton was right on this, that this is all you really need.

[00:29:07] Savannah Eccles Johnston: Is that two thirds marker? It's we've, not that I know of, do we have a single conviction of a federal judge for purely disagreeing with. The way he has construed the law. So we've, we've never actually kind of crossed that line. It would be very hard to cross that line, but nevertheless, the only times we've ever used impeachment have been.

[00:29:27] Savannah Eccles Johnston: For federal judges 

[00:29:28] Matthew Brogdon: do have a couple for being drunk. 

[00:29:30] Savannah Eccles Johnston: Right? Well, that counts. That counts, yeah. 

[00:29:35] Matthew Brogdon: The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self-government that shapes every part of our civic life from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document.

[00:29:54] Matthew Brogdon: This Constitution will equip you to engage the most pressing political questions of our [00:30:00] time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's civic thought and leadership initiative.