In response to President Trump criticizing and calling for the impeachment of a federal judge who dared to rule against him — which, in case you haven’t noticed, happens occasionally — Chief Justice John Roberts has said, to the applause of the sensible types, that judges should not be impeached for their rulings. This is, I suppose, one of those bromides we are expected to nod along with, especially those of us in the legal profession who wish to appear measured and judicious, rather than reactionary or crude. It flatters our sensibilities, reassuring us that the judiciary stands apart from the vulgar machinery of government, immune to the petty pressures of politics, unsullied by the rough hands of democracy. And yet, like so many ideas that pass for conventional wisdom, it collapses under the weight of its own contradictions.
It is true, of course, that judges must be independent. A judiciary that serves merely as a rubber stamp for popular sentiment is no judiciary at all. The entire point of an independent legal system is that it stands against the shifting tides of politics, applying principles of law that are meant to endure beyond the whims of any given moment. But judicial independence is not a synonym for judicial impunity. The idea that judges must be shielded from all consequences, even when they are demonstrably incompetent or reckless, is not a defense of the rule of law, it is an invitation to lawlessness.
Here we arrive at an interesting paradox. It is very odd that the same people who spent four years lamenting Trump’s judicial nominations as woefully unqualified, or worse, are now applauding Chief Justice Roberts for rebuking Trump by insisting that bad judges should not be impeached. This raises an obvious question to our friends on the left: Do you now want to keep those Trump judges? Or do you believe there ought to be some mechanism for removing and replacing unqualified judges with competent ones? Or does it simply not matter, so long as the system remains untouched? Either you believe that judicial quality is a serious issue that demands accountability, or you don’t. But you cannot argue in one breath that the integrity of the judiciary is being eroded by incompetent appointees and, in the next, insist that there is no legitimate means of addressing that problem.
Thirty-nine states already do address this problem by electing their judges, so the people, at least in theory, have the ability to remove those who have failed them. One can debate the merits of that system — query whether judges who cater to the public are better suited for the bench than judges who cater to politicians — but at the very least, there exists a mechanism of democratic accountability. At the federal level, however, no such mechanism exists. Once confirmed, a federal judge remains on the bench for life, barring resignation, retirement, or, in the most extreme cases, impeachment. And we do mean extreme: since the establishment of the United States judiciary in 1789, only eight federal judges have ever been removed from office. Have there been only eight terrible judges in the last 236 years? More likely, we are being asked to accept an extraordinary proposition: that while every other profession in the country, every other position of public trust, is subject to some form of meaningful review, judges alone must enjoy a practically untouchable status. It is a curious sort of reasoning, one that suggests that the best way to protect the integrity of a system is to ensure that its worst practitioners face no consequences whatsoever.
The usual response to this problem is to point to the appeals process. If a judge makes a bad decision, we are told, it can be corrected by a higher court. This is a fine theory, and in some cases, it even works. But it is also, in many instances, entirely inadequate. Appeals are expensive, time-consuming (especially if someone is sitting in prison for years while their appeal is heard), and often an illusory remedy. One cannot always undo the real-world damage caused by judicial incompetence, especially when one of the primary canons of appellate review is to give great deference to the trial court. A judge who fails to apply the law correctly, who disregards precedent, who issues rulings so untethered from reason that they might as well have been drawn from a hat, is not merely making a single mistake. He is eroding the very foundation of legal stability.
A judiciary that allows such individuals to remain in power regardless does not strengthen our democracy, it undermines it. It breeds cynicism. It teaches people that the legal system is not, in fact, a bastion of fairness and reason, but rather an arbitrary hierarchy in which power is wielded without accountability. And once the public ceases to believe in the legitimacy of the courts, the entire structure of democracy is at risk. If people come to see the judiciary as an unaccountable oligarchy, impervious to correction, then why should they respect its decisions? Why should they abide by its rulings? A legal system that commands no trust commands no authority.
The answer is not to subject judges to the same political pressures that plague the other branches of government. Nor is it to allow impeachment to become a partisan weapon, wielded against judges simply for issuing unpopular rulings. But it is also not to pretend that lifetime appointments, once granted, must be regarded as irreversible. The impeachment mechanism exists for a reason. It was designed not as an idle threat, nor as an impossibility, but as a real and necessary safeguard. A judge who demonstrates sustained incompetence, who repeatedly misapplies the law, who treats his position not as a solemn duty but as an entitlement, must be subject to removal. To suggest otherwise is to argue that the highest offices in our legal system should be held to a lower standard than the lowest.
A strong democracy depends upon a strong judiciary, but a strong judiciary is not one in which judges are immune from scrutiny. It is one in which the power of the courts is balanced by the responsibility of those who wield it. Judges are not kings. They are not priests. They are not the guardians of some sacred and unquestionable wisdom. They are public servants, entrusted with an extraordinary duty. And like all public servants, they must be held to account.
