The doctrine of checks and balances, central to the success of American Constitutionalism, is designed to curb abuse of power and promote governmental accountability. But the Constitution is not a machine that will run without good men and women at the helm. When those in positions of authority and responsibility are reluctant to turn the wheels of checks and balances to constrain the judiciary, for example, there is little to deter misbehavior. Justice James Iredell, a member of the first Supreme Court, and one of the most penetrating thinkers of the founding period, told the North Carolina Ratifying Convention, “A man in public office who knows there is no tribunal to punish him, may be ready to deviate from his duty.”
The Framers of the Constitution, for whom impeachment was designed as a “bridle” on the presidency and the federal judiciary, to ensure adherence to constitutional limitations was, Alexander Hamilton explained in Federalist No., 65, “designed as a method of NATIONAL INQUEST into the conduct of public men.” The integrity of the judicial process, the founders understood, is best preserved by judges committed to serving the public interest, which requires wisdom in the selection of those who will sit on the bench, as well as congressional willingness to investigate allegations of misconduct.
After the House impeachment and Senate conviction of Federal Judge Halsted Ritter in 1936, for his acceptance of substantial gifts from residents in his district, even though they had no business before him, on the premise that he brought his court into scandal and disrepute and undermined public confidence in the administration of justice, forthright senators explained the unlikelihood of future impeachment hearings into the acts of “crooked judges.” Senator Hatton Summers, Chair of the House Judiciary Committee, said of his colleagues, “We know they will not try district judges, and we can hardly ask them to do so.” Members in both chambers bear many responsibilities. The nature of the impeachment process interrupts important legislative business and places a considerable burden on those already overburdened by their duties. As a result, Members are reluctant to invoke the impeachment power, Senator William McAdoo observed, “even in cases of flagrant misconduct.” He concluded, grimly, that “the practical certainty that in a large majority of cases misconduct will never be visited with impeachment is a standing invitation for judges to abuse their authority with impunity and without fear of removal.” A young political scientist, later President of the United States, Woodrow Wilson, anticipated this congressional reluctance in his 1885 classic, Congressional Government: “Congress is sometimes willing to suffer a misbehaving judge rather than stop the legislative activities of the United States.”
Across the decades, scholars have weighed in with remedies to improve the removal process. The late Philip Kurland, an eminent constitutional law scholar at the University of Chicago got it right, as he often did. The cure, he wrote, is to entrust judicial functions “only to those who are equal to their demands.” This was advocacy for perfection, as he well knew. “The basic difficulty is to secure recognition of the necessity for merit appointments. How this sense of responsibility is to be secured is a question that has not yet been answered.” Kurland’s emphasis on the need to instill an appreciation for “merit” in those with the power to put well-qualified people on the federal bench, a responsibility that falls on the shoulders of the president, who nominates, and the Senate, who confirms or rejects, nominees, is not endemic to the judiciary, but applies to all governmental departments.
While Professor Kurland pointed to the issue of appointment to judicial office, James Madison, in the First Congress, addressed the full scope of the problem of accountability confronting the nation. “The danger to liberty, the danger of maladministration has not yet been found to lie so much in the facility of introducing improper persons into office as in the difficulty of displacing those who are unworthy of public trust.” In truth, the problem of accountability has a bookend component: appointment and removal. Finding a solution to the problem is as old as government itself.
Historically, our nation has turned to structural remedies to overcome the problem of human fallibility. The Constitution reflects, precisely, such an effort. The concept of term limits for Supreme Court Justices, which we consider next week, represents such an effort.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
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