The Inherent Contradiction of Impartial Senators

Ten days ago, in proceedings described as “solemn” and ‘historic,” the hundred members of the Senate swore an oath to act as impartial jurors in the trial of the man now known as William Jefferson Clinton. In a small but revealing way, that oath exposes yet another irony in this seemingly never-ending story. A president accused of violating at least three oaths is to be judged by senators who, in practice, may well find their own oath of impartiality hard to fulfill.

Perhaps this jaded prediction will itself be tried in the balance and found wanting. Perhaps some Democratic senators will conclude that the charges against the president warrant carrying the trial to completion, witnesses and all, and then voting to convict. Or again, perhaps some GOP senators will decide that the charges do not merit trial because the offenses fall short of the much-disputed constitutional standard of “high crimes and misdemeanors.” In the afterglow of the unanimous vote of Jan. 8 that drew the broad outline of the trial, anything is imaginable. If crucial procedural votes to come find significant numbers of senators crossing party lines, then we will be able to say that one form of partiality--loyalty to party--has indeed been overcome.

But should that occur, will senators not be acting from a different form of partiality: the calculation of how their votes will play in their home states? In theory, senators, with their six-year terms, should be better able to withstand the tides of public opinion than their counterparts in the more rambunctious House of Representatives, forced to truckle to the voters every two years. But the reality of contemporary politics is far different.

Several factors have conspired to make senators at least as sensitive to public opinion as members of the House. One is that senatorial campaigns are more likely to revolve around ideological issues that may spin out of control; another is that senators are less able to use service to constituents as arguments for reelection.

The most important factor, however, is that statewide elections for Senate seats are now almost always more competitive than House races. This is one of the most striking developments in U.S. politics in the past several decades. The number of House seats “in play” in any election has declined steadily. The art of designing electoral districts to favor party interests is as old as the republic, but the data available to manipulate districting to make seats more secure for incumbents or the dominant parties in state legislatures seems to grow with each election. Both parties have honed this skill--one reason House incumbency rates are so high. (Only six House members lost their bids for reelection last November.)

That helps explain why the impeachment vote in the House was so partisan. Most GOP representatives could ignore the seeming tide of national public opinion because a vote to impeach would not hurt them in their safe districts, so long as they could assure their renomination by the party faithful clamoring for Clinton’s scalp. Similarly, once Democratic representatives had established a measure of moral distance from the president, they could rally to his support when it became evident that their loyalists were not going to abandon him.

But state lines cannot be drawn to favor one party or another; their boundaries are fixed. (Though Ohio and Michigan nearly came to blows in 1835 in the “Duck Soup” conflict known as the Toledo War.) There are a few states where it is hard to imagine one party losing its current hold on both Senate seats--like Idaho, whose potatoes have the same two Senate seats as California’s people--but only a few. Nor are Senate seats easier to hold on to now than in the past. For just as House districts have grown safer, Senate seats have grown more competitive. Senators might hope their constituents will have short-term memories about impeachment--as retired Wyoming GOP Sen. Alan K. Simpson has observed--but those facing reelection in 2000, including 19 GOP incumbents, might err on the side of discretion.

All this is to confirm what we already know: Senators can talk about institutional tradition and the bonhomie of their special caucus, but in the end they are just as likely as House members to base the votes that lie ahead on strongly political grounds. And this, in turn, would suggest that the Republicans are more likely to break ranks over impeachment than Democrats--who already know they have the votes to prevent conviction and the support of public opinion.

Could all this be what the framers of the Constitution envisioned when they made the Senate the trial court for impeachments? Did they intend to set up a mechanism where partiality of one kind or another was likely to control so solemn an event?

In one sense, the framers did have some reason to think or at least hope that the Senate might act impartially. Senators were, after all, originally elected by the state legislatures, making them somewhat less accountable to the sway of public opinion, and the legislatures had no authority to recall senators or give them binding instructions. Most important, many framers expected that senators would serve only a single term, and that at a mature stage of life, so future political ambitions would not weigh heavily upon them. In fact, hardly anyone served consecutive terms in the Senate for the better part of a century.

On the other hand, important clues indicate that misgivings about the Senate influenced the clear expansion of the presidency that marked the final weeks of the framers’ debate. A narrow reading of the scope of “high crimes and misdemeanors” is thus far more consistent with the framers’ desire to make the president as independent of Congress as possible than is the broad reading on which the House voted impeachment. Equally important is the adoption of the two-thirds requirement for conviction in the Senate. This was a marked departure from the impeachment practice of both the British Parliament and the American states, where simple majorities could convict, and it reveals a strong desire to make removal of a president extremely difficult.

Moreover, when you examine the constitutional debates of 1787-88, what is most striking is how ambivalent most Americans were about the Senate--not just the framers at the Philadelphia Convention, but the people “out-of-doors” (as public opinion was then called). This ambivalence carried over into their ideas about the role the Senate would play in impeachment.

Take James Madison. His response to the convention’s decision to add the mellifluous phrase “other high crimes and misdemeanors” to the impeachment clause was to propose removing the trial of impeachments from the Senate and restore it to the Supreme Court, where the framers had expected this duty to rest until the final fortnight of their deliberations. The convention roundly rejected Madison’s motion. But Madison, our premier constitutionalist, remained unconvinced it had done the right thing.

A year later, commenting on the impeachment article that Thomas Jefferson had included in a draft constitution for Virginia, Madison observed, “A court of impeachments is among the most puzzling articles of a republican Constitution, and it is far more easy to point out defects in any plan, than to supply a cure for them.” Madison agreed that “impartiality” and “respectability” were the two great attributes an impeachment court should possess. But to attain those he proposed a complicated scheme to combine some fraction of the state senates with members of other branches of government. The federal Constitution, in his view, had clearly not solved the problem.

Nor was Madison’s colleague George Mason any more optimistic. Mason was the delegate who came up with “high crimes and misdemeanors,” but he then refused to sign the Constitution and subsequently opposed its ratification, in large measure because he felt that the power the Senate would enjoy, including the trial of impeachments, would enable it to dominate the entire government as a false aristocracy.

That sentiment was shared by Mason’s Antifederalist allies. In their view, the Senate was the most dangerous branch of the proposed government because it would exercise all three forms of power. In addition to the legislative powers it shared with the House, the Senate would jointly exercise executive powers (over appointments and treaties) with the president, and its power to try impeachments gave it judicial authority as well. That combination of power, Americans knew from reading Montesquieu, the great French theorist of the separation of powers, was the very definition of tyranny. Mason and other Antifederalists repeatedly suggested that the Senate would use its formal powers to dominate the other branches. And if it made the president its lackey, the power to try impeachments would be used to shield malefactors from judgment.

It was precisely because Antifederalists repeated such charges so often that Alexander Hamilton had to devote two closely reasoned numbers of the Federalist (65 and 66) to defending the convention’s decision to place the trial of impeachments in the Senate. But here, again, what is striking is that Hamilton does not offer a robust defense, but rather a comparative and at times almost apologetic accounting of the greater defects militating against other arrangements.

All this suggests that the constitutional debates of 1787 did not engender great confidence in the impartiality of the Senate as a trial court of impeachments. This, in turn, offers another reason why a rush to trial and judgment in the case against the president should be viewed cautiously. Far from being a central element of the constitutional design, presidential impeachment is one of its most problematic weapons. That is why it should be deployed only under rare circumstances, when both the magnitude of the offense and the clarity of the evidence make impartiality possible.*