Judicial Quandary

Never before has impeachment loomed so large on Congress’ agenda. For the second time in as many years, the House has just invoked its impeachment powers and accused a life-tenured federal judge, Alcee L. Hastings of Florida, of “high crimes and misdemeanors.” One jurist, U.S. District Judge Harry E. Claiborne of Nevada, was convicted by the Senate in 1986 and removed from the bench. And sometime soon, as Hastings goes on trial in the Senate on 17 articles of impeachment, the House will be considering still another impeachment--that of U.S. District Judge Walter L. Nixon of Mississippi.

Cynics may wonder if there has been some sudden collapse in morality on the federal bench. In fact, the sudden spate of impeachments may be largely an aberration; only 12 judges in U.S. history have been impeached, and Claiborne was the first to be tried by the Senate in 50 years. But some congressmen are convinced that the growth of the federal judiciary ensures that impeachments will become more common; burdened with three time-consuming impeachment proceedings, they have introduced constitutional amendments to reform the process for removing unfit judges.

Since the judiciary was established in 1789, impeachment by the House and conviction by the Senate has been the only way to dislodge judges. Now Rep. Gerald D. Kleczka (D-Wis.) proposesa constitutional amendment to turn the removal power over to the judicial branch. Sen. Howell Heflin (D-Ala.) also favors an alternative mechanism, perhaps a two-part judicial commission like those operating in many states; one body within the commission would investigate and accuse judges, as the House does now, and the other, like the Senate, would sit as a trial court to hear the charges. Rep. Robert W. Kastenmeier (D-Wis.), the leading congressional expert on impeachment, is pushing a more modest proposal that would establish a national commission to decide whether reform is necessary and what form it should take.

Lawmakers are concerned that impeachment wastes both their time and the taxpayers’ money. By the end of this year the House Judiciary Committee will have spent $875,000 on investigations of the three judges--extraordinary in that two of them, Claiborne and Nixon, are convicted felons. Investigations last for years, and trials run on for weeks; Claiborne’s fate was debated on the Senate floor longer than any other issue that came before that body in 1986. And, while these proceedings drag on, a judge continues to collect his $89,000 annual salary, even if he is behind bars.

Heflin also raises a more subtle point about whether a 100-person body like the Senate can ensure anyone a fair trial. The Senate, as a body, did not try Claiborne; the evidence against him was taken by a special 12-member committee, and Heflin says that 35 senators who voted to convict him never even reviewed those proceedings--which hardly squares with due process or with the Founding Fathers’ sense of the gravity of removal.

The judicial branch may indeed have grown so fast that it has outstripped Congress’ ability to monitor its members effectively. There were only 37 federal judges in the early years of the republic, and now there are 743. Congress already has delegated some of its authority; since 1981 the courts themselves have investigated complaints against sitting judges, meted out minor penalties and referred the gravest cases to the House. But going any further--having Congress surrender its power to remove judges--would make impeachment easier and might threaten the judiciary’s independence. Before Congress throws its weight behind a constitutional amendment that would fundamentally alter the balance of power within the government, it should consider carefully the ramifications both for itself and for the judiciary. Kastenmeier’s proposed commission sounds to us like the wisest course for the moment.