Quick Follow-up on Thomas Jefferson and the Chase Impeachment

With reference to my last public post, Trump: Impeach Uncooperative Judges, there’s a way of interpreting the Jeffersonians’ bringing baseless charges against Justice Chase, and the acquittal itself, as a strategic victory for Jefferson. The impeachment, in this view, intimidated Chase into toning down his fulminating style and moderating his anti-administration stance.

Maybe that’s true about the fulmination. But Chase continued to ride circuit, as justices did back then, and make rulings on the basis of his High Federalist interpretation of the Constitution; he certainly voted with the Marshall majority in further Supreme Court cases. Anyway, bringing baseless charges of a tendency toward sedition lies well outside the legit toolbox for the more or less built-in jostling among branches and chambers I was talking about in the piece.

A comparison with FDR’s 1937 threat to “pack” the Court is interesting. That’s some serious jostling—but it doesn’t abuse constitutional power and smear individuals, the way subverting the impeachment process does. How many justices sit on the Supreme Court is up to the American people, as reflected in legislation passed by the people’s representatives. If a majority in Congress disagrees with the Court’s setting aside its laws and the president’s executive orders, the congressional majority can address that issue via the power it has over the Court—constitutionally explicit—in determining the number of justices.

FDR’s leadership in threatening the Court with such a change, often seen as a huge political failure, had the positive effect, for his legislation, of backing the Court off to a degree—the effect some seem to think Jefferson’s effort against Chase had on Chase. There were also downsides. People in both parties saw the move as an overreach; southern Democrats in particular got worried that the real plan was to remove obstacles to Civil Rights legislation (doubtful).

Either way, the idea wasn’t a subversion of constitutional powers. It was a bare-knuckle threat to use them.

On Trump’s plan to abuse the impeachment process by removing judges who rule against him, some Twitter users looked back with approving nostalgia on Jefferson’s precedent. Examples:

“Ice cold take: Samuel Chase deserved to be removed from office.”

“The Chase impeachment established the precedent that judges can be impeached for their actions as judges.” (Well, yeah.)

“…the impeachment of samuel chase…did effect an attitude adjustment.”

“People saying it's a waste of time should look at the Samuel Chase impeachment and its effects.”

“Impeachment of judges for weaponizing authority & bad ethics is constitutional—i.e. Samuel Chase.”

A lot of that emerges from a weird idea floating around legal circles that federal judges aren’t actually appointed for life, because the Constitution says not only that they’re appointed for life but also that they “hold their office during good behavior,” so they can be removed. I don’t think they should be appointed for life, but they are, of course, and yes, of course they can be removed: that’s what the impeachment process is for. If a two-thirds majority in the Senate votes to remove a judge who’s been impeached in the House, the judge is removed. It could be for literally anything. It doesn’t have to make any sense at all, or be in any way legit. While the conscience of the Senate, God help us, thus remains the only thing that really counts in these matters (as Burr pointed out), I think some people are fantasizing that the president can simply get rid of judges who aren’t behaving properly.