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A Selective Adherence to Tradition

Why is it that when it comes to the judiciary, some traditions matter more than others?

12:00 AM, May 12, 2005 • By HUGH HEWITT
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WHEN THE WORD "IMPEACHMENT" was uttered in March and April as an option for dealing with renegade judges, the guardians of conventional wisdom were quick to denounce "ideologues," who, in the words of the New York Times editorialists, "are trying to bully judges into following their political line." The Washington Post's editors agreed: "It is essential that the judges who stood up to Congress now receive ample support--so that judges will feel secure in emulating them."

Now the folks who raised the possibility of impeachment were not themselves elected officials. A Rev. Patrick Mahoney of the Christian Defense Coalition thought that impeachment "needs to be put on the table." Phyllis Schlafly thought out loud that "Congress ought to talk about impeachment." Michael Farris of the Home School Legal Defense Association branded Supreme Court justice Anthony Kennedy a "poster boy for impeachment." When a reporter pressed Tom DeLay on the subject, DeLay's response was an insufficiently Shermanesque rejection of the idea, and he was condemned as a threat to judicial independence as well.

This collective onset of the horrors among the talking heads reflected a widespread and, I hasten to add, correct understanding of the role of impeachment in American history. Ever since John Randolph of Virginia launched a famously political--and unsuccessful--impeachment assault on Samuel Chase in January 1804, our tradition has been that judges are insulated from political payback for their rulings, no matter how wrong-headed we believe them to be. When the Senate trial of Chase began in February, 1805, Jefferson's Republican allies had the votes to remove the Federalist Chase, but in fact on some charges not even one vote to convict was recorded, and a minimum of six Republican senators supported acquittal on every count. It was a moment when politics was put aside to assure that the judiciary remained above politics.

It was no surprise then, that when only a theoretical challenge was raised to that tradition of reserving impeachment for actual criminal conduct, even that conversation was shouted down in disgust. So deep is the tradition that none even dare disturb it in theory.

WHICH LEADS those for whom consistency is a virtue to ask: Where is the outrage over the very real smashing of tradition with regard to the filibustering of judicial nominees?

Only once in the 20th century was a nominee whose name had advanced to the floor of the Senate refused an up-or-down vote, Abe Fortas--and Fortas was plagued by ethics issues of the sort that can actually lead to impeachment. As surely as the restraint placed on impeachment of judges is real and needs to be defended, so was the restraint placed on the idea of filibustering judicial nominees. If impropriety was in the record, filibuster was in order for a nominee even as impeachment was for a sitting judge.

But opponents of political impeachment should be asking themselves: If politics is allowed to affect the coming of the judges, surely it is only a matter of time until it affects their going, right? Right.

When Senate Democrats decided in 2003 to abandon 200-plus years of tradition with regard to judicial nominees and subject 10 of them to minority filibusters, there was nothing like the outcry that followed the speculations about impeachment. Of course the latter had been raised by conservatives, so mainstream media voices found it easy to crank up their outrage.

But on the trashing of precedents with regards to appeals court nominees there has been barely a whisper. When Charles Schumer of New York rises to make a risible appeal to the intent of the Founding Fathers, and couples it with sophistry about how few Americans 51 senators might represent, the mainstream media keepers of tradition are silent.

THIS SELECTIVE OUTRAGE has a counterpart in selective quotation from the early patriots. How often have we heard in recent years of Jefferson's "wall of separation"? But how often have we seen Jefferson quoted with regard to judicial review? ("Stop . . . citing Marbury v. Madison as authority," Jefferson demanded. "I have long wished for a proper occasion to have the gratuitous opinion in the case brought before the republic, and denounced as not law.")

We don't see certain Jefferson quotes because our history proved him wrong on some accounts, and right on others. Our history rejects impeachment of judges as a tool of political payback, just as it rejected a minority party's veto of a president's judicial nominees prior to 2003.

But when traditions start to fall, they fall very quickly indeed, and in lots of places. "The men who belonged to it did not behave as if they stood under the shadow of impending doom," concluded Erich Gruen in The Last Generation of the Roman Republic. They were unaware of the consequences of their radical innovations until Caesar marched on Rome.

When conservatives spoke up for a radical redefinition of the grounds for impeachment, the shout-down was immediate. Where is that same reverence for tradition with regards to the judicial filibuster?

Hugh Hewitt is the host of a nationally syndicated radio show, and author most recently of Blog: Understanding the Information Reformation That is Changing Your World. His daily blog can be found at HughHewitt.com.