Senate Nearing Votes on Whether to Oust Two Impeached U.S. Judges

Walter L. Nixon whiles away the days in a minimum security jail in New Orleans, the only federal judge in prison and only the second in history to be convicted of a felony while serving on the bench.

The Mississippi jurist still draws his $89,500-a-year government salary--totaling more than $300,000 since his 1984 conviction for perjury. Only by impeachment can a federal judge be stripped of his lifetime tenure and salary, and years can pass while both houses of Congress conduct lengthy investigations, hold hearings and finally vote.

The vote on Nixon will come up soon--not long before he is due to be paroled. But, first, Congress will deal with the case of Florida Judge Alcee L. Hastings, the other federal judge now undergoing impeachment proceedings, on a perjury charge. It has taken six years to reach a final vote on whether to oust Hastings, a decision scheduled for the end of this month.

Cost Exceeds $1 Million

The Hastings and Nixon cases have spurred efforts to find a way to speed up the process. Critics point out that, in just the last six months, two dozen senators and a parade of lawyers and Senate staff members have given time to the two impeachment proceedings. The cost so far, not including the federal judges’ salaries, has been more than $1 million.

“The system is awkward and doesn’t function well as we enter the 1990s and the 21st Century,” said Rep. Robert W. Kastenmeier (D-Wis.). “It might have worked at the beginning of the republic . . . but it doesn’t work really well any more.”

Raoul Berger, a retired legal historian at Harvard, said that the impeachment process diverts Congress from its legislative work. “The savings and loan crisis is much more important than throwing out a judge,” he said. “There’s got to be an easier way to do it.”

Berger has long advocated removal, after review, for conduct that violates the Constitution’s dictate that judicial tenure is conditional on “good behavior.”

Kastenmeier, who participated in the impeachment of U.S. Judge Harry E. Claiborne of Nevada three years ago, has introduced a bill to establish a commission to recommend ways to streamline the impeachment process.

Meanwhile, Sen. Howell Heflin (D-Ala.) is pushing for a constitutional amendment that would allow Congress to delegate much of the work of impeachment to a panel of judges and lawyers, who would conduct the investigation and trial. The system is modeled after one Heflin helped develop for state judges in Alabama.

Either approach will face opposition from those who feel that a cumbersome, complex removal process is a deliberate safeguard of judicial independence.

Article II of the Constitution stipulates “high crimes and misdemeanors” as offenses for which Congress may impeach a President, vice president or federal judge, and it requires that the House investigate and impeach (indict), after which the Senate must try the case.

During the drafting of the Constitution, James Madison took exception to a suggestion that impeachable offenses include “maladministration.” He warned that the inclusion of that offense would be tantamount to judges’ serving at the “pleasure of the Senate.”

“It’s a matter of considerable gravity to the whole government when one branch of government removes another,” said David O. Stewart, Judge Nixon’s attorney.

“Tinkering with one part of our governmental structure is very risky business,” added Stephen Burbank, a University of Pennsylvania law professor.

“We don’t think it should be easy to impeach a federal judge,” said David Sellers, a spokesman for the federal court system. Sellers warned that changes in the system could create as many problems as they solve and said that tampering with lifetime tenure could open the door for political manipulation of the bench.

No one denies that the present system, whatever its merit, is time-consuming. The Hastings case is a textbook example.

A Florida jury acquitted Hastings in 1983 of charges that he conspired to accept a bribe. But evidence suggested that Hastings might have lied under oath during the investigation, and an impeachment process was started.

Evidence of Perjury

A panel of fellow judges investigated for more than three years before concluding that there was enough evidence to try Hastings for perjury. The issue then went before a House panel for investigation, debate and a vote. Then it went to the full House, which voted 413 to 3 to try Hastings.

Over the summer, a Senate committee spent four weeks hearing the case. On Oct. 24, the whole Senate, in closed session, is scheduled to vote on whether Hastings will be the sixth federal judge in history to be convicted by the Senate.

Nixon, meanwhile, has been undergoing an identical series of hearings since a jury in 1984 convicted him of two counts of perjury when he denied intervening in a narcotics case involving the son of a business executive who had given him good deals on oil investments. In May, the House voted, 417 to 0, for impeachment. A Senate panel heard the case in early September, and the full Senate is expected to vote on Nixon’s case soon after Hasting’s.