Common Questions about the Judicial Impeachment Process

Can we really impeach a judge?
Can we impeach a judge for judicial activism?
Where in the Constitution does it say that we can impeach a judge for judicial activism?
Does “judicial activism” amount to treason, bribery, or a high crime and misdemeanor?
What were the Founders trying to address when they made “high crimes and misdemeanors” an impeachable offense?
Why is “judicial activism” an attempt to subvert the Constitution?
 

Can we really impeach a judge?
Yes.  In the history of federal impeachments we have had sixteen impeachments and twelve of those have been of federal judges.

Can we impeach a judge for judicial activism?
Yes.  In fact, the very first federal judge impeached, Judge John Pickering in 1804, was impeached for judicial activism, or what they then referred to as “rulings contrary to law.”

Where in the Constitution does it say that we can impeach a judge for judicial activism?
Article II, Section 4 of the Constitution says that “all civil Officers of the United States, [that includes judges] shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Does “judicial activism” amount to treason, bribery, or a high crime and misdemeanor?
Judicial activism is not “bribery” and in most cases would probably not amount to “treason,” however, it certainly amounts to a “high crime and misdemeanor.”

What were the Founders trying to address when they made “high crimes and misdemeanors” an impeachable offense?
Interestingly, “High Crimes and Misdemeanors” was not in the early draft versions of the Constitution.  The early drafts simply said that an officer could be impeached for just treason and bribery.  However, at Col. George Mason’s urging the phrase “High Crimes and Misdemeanors” was added in order to make sure that officers could be impeached for “Attempts to subvert the Constitution.”

Why is “judicial activism” an “attempt to subvert the Constitution?
As President Bush has succinctly stated, judicial activism is the same as “legislating from the bench;” but as the President has stated judges are not supposed to legislate.  In fact, the Constitution specifically provides in Article I, Section 1 that all federal “legislative powers” are reserved to the People’s elected representatives in Congress and not to judges.  Therefore, when judges “legislate from the bench” they do more than just “attempt” to subvert but actually do subvert the Constitution, namely Article I, Section 1.  Moreover, judicial activism is not just a subversion of any provision of the Constitution, but is a subversion of perhaps the most important and fundamental provision in the entire Constitution, which is the right of “We the People’s” to have a “government of the people, by the people, and for the people.”