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View Diary: Sh** or Get Off The Pot (288 comments)

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  •  but impeaching 5 judges (3+ / 0-)

    (the other 4 would quit in protest) will get you the result you want and not 5, or 9, fairly conservative judges. right.

    •  What's your basis for claiming (0+ / 0-)

      the other 4 would quit in protest?  

      Sign the petition to demand a law-abiding Supreme Court.

      by Troubadour on Tue Jul 09, 2013 at 03:08:20 PM PDT

      [ Parent ]

      •  they will interpret the impeachments (3+ / 0-)
        Recommended by:
        CenPhx, Villanova Rhodes, DeadHead

        as being done for their judicial rulings if successful and that it's an attack on their independence. support for judicial independence is kind of universal for both liberal and conservative judges. it is a major part of our judicial tradition and has been so since 1803.

        i've said it already, and so have actual lawyers who have actually talked to you: if you want to overturn Marbury which rather established said independence (meaning yes, Congress then gets to toss federal judges for rulings it disagrees with whenever it wants--since that's where impeachments begin and end for Article III folks like SCOTUS), say so already and find yourself a test case.

        •  In other words, you don't have a basis. (0+ / 0-)

          You just assume that your authoritarian conception of law is theirs and that they would defend it to the professional death.  Here's another viewpoint: Not one of them would resign.  Not one.  The liberal Justices are professionals, not ideologues.

          Sign the petition to demand a law-abiding Supreme Court.

          by Troubadour on Tue Jul 09, 2013 at 04:45:07 PM PDT

          [ Parent ]

            •  What you just said is what you would do (0+ / 0-)

              if you were in their shoes, not justified your claim that they would do it.  I say that they're professionals, and not one of them would resign over something happening that the Constitution explicitly allows.

              Sign the petition to demand a law-abiding Supreme Court.

              by Troubadour on Tue Jul 09, 2013 at 05:01:45 PM PDT

              [ Parent ]

              •  No one is saying that an attempt to (2+ / 0-)
                Recommended by:
                DeadHead, orestes1963

                impeach a justice for a legitimate reason -- an actual high crime or misdemeanor, such as taking an actual bribe -- would trigger resignation. The claim is specific to your reason for attempting impeachment, which is not explicitly contemplated in the constitution aside from the looseness of leaving the definition of HC/M up to the legislature.

                No doubt you'll disagree, no doubt with passion, but terrypinder is right. Nothing could unite the justices more than a political attack on their independence. Sandra Day O'Connor didn't run around supporting the Iowa supreme court justices because she was some big champion of marriage equality. And she didn't do it because the attacks on those justices were contrary to Iowa law. She did it for the principle of judicial independence. All you have to do is read their speeches and other writings, or know a few federal judges of any party, to get this.

                If you think that judges and other government officials are by definition corrupt, then of course you'd think they would hang onto power in all circumstances. But you'd be wrong. Resignation on principle would be dramatic, but not unprecedented. See, e.g., resignation of Judge Robertson from FISA; resignations drafted in the Gonzales/Ashcroft/Comey affair; Saturday Night Massacre. No doubt they would threaten resignation in the hopes that it would not come to that, but they'd be out the door if it did come to that. And I think the same would hold true for the other 5 if the circumstances were reversed, though I'd probably only bet on 4.

                •  The Article III standard is good behavior (2+ / 0-)
                  Recommended by:
                  Villanova Rhodes, DeadHead

                  Has congress interpreted that as a high crime and misdemeanor standard?  I apologize for being too lazy to research the question.

                  •  Fuzzy. There's no doubt they can be removed (3+ / 0-)

                    under the HC/M standard, which is why I used that example. It's been a while since I read deeply on it. IIRC, Raoul Berger and others have argued that the good behavior clause can be used to hold them to a higher standard. I generally agree in theory, but, perhaps paradoxically, I doubt that it would be applied in practice to a SCOTUS justice. I could see it applied to lower court judges, if the disciplinary system were to break down entirely. For example, Judge Cebull of racist email fame retired as a consequence, it appears, of the Ninth Circuit judicial council review. That's probably the most likely course, but if you had someone with repeated offenses of that sort -- horrible personal behavior that didn't amount to a crime -- maybe impeachment would be contemplated.

                    Either way it's "whatever Congress decides at the time" but I think we settled with Chase that it should not be for the content of decisions. The exception I can imagine is decisions that clearly reflect cognitive impairment. When they're not capable of good behavior, removal could be appropriate absent a volitional offense, I guess. But even that is pretty unlikely given peer pressure, the ability of chief judges to just stop assigning cases to them, and salary continuation.

                    (Some have even argued that the constitution does not require impeachment as the only way to remove someone from the bench, but that's a minority view that would be a real distraction here. Sshhh.)

    •  Stuffing the court with progressives is also an (1+ / 0-)
      Recommended by:

      option.  Nothing says that the court has to have 9 members.

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