The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Judicial Impeachments
Over at The Dispatch, I have a new piece on the impeachment of federal judges. In a Truth social post, President Donald Trump did what no sitting president has done before, publicly called for the impeachment of a federal judge. In doing so, he stoked the flames of MAGA world which, since the start of President Trump's second term, has become very unhappy with the third branch of government. People of influence and power are now regularly floating extreme solutions to Trump's judicial problem, and impeachment is just one of the options apparently on the table.
As a practical matter impeachment is not easy, as Trump's own first term of office amply demonstrated. As a matter of constitutional principle, the abuse of power by a federal judge might well justify impeachment and removal, but identifying such abuses of powers is likely to be difficult and controversial. There are circumstances when impeaching a federal officer in the House might be a reasonable move even when conviction in the Senate is unlikely, but the House should think carefully about what they are trying to accomplish and how they can best accomplish it before embarking on any impeachment effort.
From the piece:
Indeed, impeachments in general should be a last resort to addressing abuses of power. While there are certainly occasions when nothing short of impeachment and removal will be adequate to remedy the problem posed by a misbehaving officer, we have more routine tools for addressing constitutional abuses. In the case of lower court judges, the first and most routine tool for addressing rulings that seem to be incorrect is to appeal that ruling to a higher court. If a judge has truly acted in a manner that is beyond the pale, then correction by an appellate court can be easily achieved. Only if a judge seems to make it a practice of engaging in such behavior should the blunt tool of impeachment become necessary. The administration seems to have little patience this time around for normal governing procedures, but litigation requires some patience as cases are argued, decided, and appealed.
Read the whole thing here.
For a broader examination of the impeachment power and the law and politics of using it, check out my most recent book.
