Gavel Grab

Calls for Impeachment of Judge Bybee Get More Media Attention

With impeachment threats growing against Judge Jay Bybee,  media outlets are publishing story after story on the issue.  As Gavel Grab has previously covered, Judge Bybee is under attack for memos authorizing harsh treatment of detainees, recently released by the Obama administration, that he drafted prior to his time on the federal bench.

The Los Angeles Times reports that any attempt to criminally prosecute Judge Bybee would face serious legal challenges.  The article points out that there would have to be evidence of a crime to successfully remove him from the bench.  Stephen A. Saltzburg, a law professor at George Washington University, says in the interview that being a bad lawyer and giving bad advice is not a crime.

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Impeach Judge Bybee? (continued)

In the wake of the release of Justice Department memos about detainee treatment, MSNBC host Rachel Maddow was the latest to talk about impeaching Judge Jay Bybee, a former Assistant Attorney General, Office of Legal Counsel who wrote some of them.  An excerpt, which begins at 7:30 of this video, reads:

MADDOW:  In reading the Bybee memo today, I have to say I am troubled by the fact the guy who reasoned out that waterboarding doesn’t inflict suffering is now a sitting federal judge. Is that forever? Is there any way that that gets undone?

GEORGE WASHINGTON UNIVERSITY PROFESSOR JONATHAN TURLEY:  Only if he resigns or if he’s impeached. It is a very obnoxious thought to think the author of this memo is rendering judgments on American citizens and has lifetime tenure. It is even more disturbing the Democrats did comparatively little to block the nomination, even though they knew he was involved in this controversy. They refused to take steps they could have taken that would have prevented him from going on the bench. And so, we have this now incredible image of the author of these unbelievable memos sitting in judgment and enforcing the law against hundreds of citizens during his lifetime tenure as a judge.

MADDOW: There is that impeachment idea, I suppose.

As we have noted, impeaching judges for legal work done before they take the bench could open a real can of worms.  If that can is opened, it’s won’t take long before we’re back to the days when Congressman Tom DeLay was threatening to impeach judges for a wide variety of political reasons.

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Impeach Judge Bybee?

In Slate last week, Yale professor Bruce Ackerman called for the impeachment of federal appeals judge Jay Bybee.   The rationale would be to provide an opportunity for a legislative investigation of Bybee’s previous work as a Justice Department attorney, where he helped produce the “torture memos” that green-lighted conduct that included abuses of prisoners at Abu Ghraib, Guantánamo and elsewhere.

If legal work done before joining the bench becomes ground for impeachment, the courts are in for hard times.  The Constitution subjects judges to impeachment for “treason, bribery, and other high crimes and misdemeanors.”

Professor Ackerman wants to drop the atomic bomb of our political system on Judge Bybee for helping to author legal opinions that he describes as “extreme,” “legally incompetent,” and “poorly reasoned.”  Impeachment criteria like these could clear the bench pretty quickly, especially as enforced by legislators pandering to their angriest political supporters. Read more

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Exit Strategy for Embattled Judge?

James Gill, with the New Orleans Times Picayune, wrote an article this morning discussing a possible solution for the removal of Judge Thomas Porteous from the bench.  

Judge Porteous has been accused of multiple violations of the canon of ethics and has had all cases removed from his jurisdiction for two years.  You can get more background in a prior Gavel Grab post here, and by reading the official certificate recommending impeachment from the Judicial Conference of the United States.

The article, “How to get rid of a bad judge,” presents an argument against impeachment proceedings and offers a potential solution: offering a settlement that would prompt Judge Porteous to retire of his own accord.   You can catch the whole article here.

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New Scholarship–Judges Firing Judges


When Congressional attacks on federal judges began surging a few years ago, there was a brief attempt to rewrite history and suggest that legislative impeachment and removal could be commonplace tools to remove judges over decisions.  In fact, the opposite is true:  as Professor Charles Geyh puts it in his 2006 When Courts and Congress Collide, Congress “has concluded that there are constraints on its authority to characterize various offenses as impeachable….In this day and age, no judge can realistically fear impeachment or removal on account of her decisions.”

But what about the judiciary?  Can courts clear their own bench? Professors Sai Prakash and Steve Smith recently argued that they could, that Congress has the power to authorize courts to remove judges.  Now, courtesy of the Legal History Blog, we see that Northwestern Professor  James E. Pfander argues no, saying that English common law traditions for removing judges through judicial proceedings were not embraced by the Consitution’s framers.

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Removal from Office for Specific Decisions

While threats to remove judges from office over their decisions are nothing new, the last two state legislative cycles have been unprecedented in the actual number of resolutions introduced. Beyond simple rhetorical jousting, the drafting and consideration of articles of impeachment (or in some states bills of address) for judicial decisions has become more widespread and are not necessarily only contending with highly charged political issues.

Divorce/Custody: In Missouri, an order in a divorce dispute lead to draft impeachment articles being sent to the judge in the case by a state representative. Along with the draft was a suggestion the judge remove herself from the proceedings. This is similar to a bill New Hampshire’s legislature considered in 2006 (HA 1), itself an effort to remove a sitting judge for a decision made in a divorce case. The New Hampshire bill was unanimously rejected by a joint House-Senate Address committee.
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2/11/08 – Retired Judge Takes the Blame, NYTimes Calls Out Bush on Fed. Nominations, Impeachment Threat in MO, Grisham Again, Call for Debate in WV

Retired chief justice takes blame for court – The Houston Chronicle
Retired Chief Justice Thomas Phillips sets the record straight on the change in policy that is being blamed for creating a backlog of cases in the state supreme court.

Unworthy Nominees – The New York Times
The New York Times Editorial Board focuses the blame on Bush, not Congress, for the lack of federal judicial confirmations. According to the New York Times, Bush is attempting to stack the courts with “far-right ideologues with troubling records”.

Woman’s divorce case drives Missouri lawmaker to seek rare impeachment of judge – The Kansas City Star
An impeachment resolution has been filed by state Rep. Jim Lembke (St. Louis-R) against Associate Circuit Court Judge Christine Hutson for a ruling she made in a divorce case that some have considered to be lopsided and biased.

John Grisham’s recent book “The Appeal” gets more attention for being reflective of real and recent situations in several state supreme courts.

Judicial Debate Wanted – The Intelligencer / Wheeling News-Register
Supreme Court candidate Margaret Workman is calling for a series of pre-election debates in the West Virginia race.

Click here for more news on fair and impartial courts issues from the Brennan Center for Justice E-lerts.

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2/8/08 – MD Judge Faces Impeachment, NJ Judge Swears Too Much, Grisham Gets Bashed for WV Comparison, MS Wants Best of Both Worlds

Lawmaker eyes judge’s removal over rape case – The Washington Times
Delegate Patrick L. McDonough, Baltimore County Republican, moved to impeach Montgomery County Judge Katherine D. Savage for her decision to dismiss charges against a suspected rapist due to the courts inability to find an interpreter for the suspect.

Judge Charged With Misconduct For F Word – North County Gazette
The Committee on Judicial Misconduct has filed a formal complaint against County Superior Court Judge F. Michael Giles for allegedly swearing at an attorney appearing before him in court.

CALA blasts Grisham over W.Va. comments about his new book – The West Virginia Record
West Virginia Citizens Against Lawsuit Abuse is blasting John Grisham for comments he made comparing his new book “The Appeal” to the situation in West Virginia during the 2004 State Supreme Court elections.

Hybrid systems will increase the odds of trustworthy courts – The Vicksburg Post
This editorial argues that while all judicial election systems have their downsides, a hybrid of merit selection and elections is the most fair and least flawed approach.

Click here for more news on fair and impartial courts issues from the Brennan Center for Justice E-lerts.

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1/25/08 – Impeachment Threat In Iowa, Justice in Question, TX SC Justice Wants Arson Charges Erased, WV Massey Case to be Redecided, OH Judges Say No to New Law

Conservatives want to impeach judge over gay marriage ruling – The Associated Press
Conservative activist Bill Salier over 6,000 signatures calling for the impeachment of Judge Hanson because of his ruling last year upholding same-sex marriage.

Padilla trial highlights Bush Administration’s manipulation of justice – The JURIST
Former US Assistant Secretary of the Treasury and co-author of The Tyranny of Good Intentions, Paul Craig Roberts talks about the Administration’s post 9/11 assault on US civil liberties.

Lawyer wants to erase charges against Texas Supreme Court justice – The Associated Press
Justice Medina and his attorney moves to have all public record of the justice’s arson indictment erased from public record.

W.Va. Court to Rehear Massey Case – The Associated Press
Ethics issues arising from a potentially inappropriate relationship between Justice Maynard and chief executive of Massey Energy Co. have prompted the state Supreme Court to reconsider its reversal of the $76 million judgment.

Ohio’s new sex-offender law draws rebuke from judges – The Plain Dealer – OH
Ohio County judges are refusing to enforce the newest and toughest sex-offender registration law because of potential constitutional conflicts.

Click here for more news on fair and impartial courts issues from the Brennan Center for Justice E-lerts.

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1/24/08 – A Special Texas Edition of the Daily Media Monitoring, Plus Bonus Ethics News From Maine and a Defense of Impeachment in Iowa

AP NewsBreak: High court justice use campaign funds questioned – The Associated Press
Texas Supreme Court Justice Nathan Hecht joins Justices Paul Green and David Medina in defending campaign spending on questionable travel expenses.

As the Texas Supreme Court turns – The Star-Telegram
A play-by-play editorial of the ongoing ethics saga unfolding in the Texas Supreme Court.

Looks matter: Ethics issues involving Texas justices have put a cloud over top judicial panels. – The Houston Chronicle
With the ongoing ethics concerns in the Texas judiciary, voters should pay special attention to judicial elections and be sure to educate themselves before voting in the primaries.

Judge’s nomination questioned – The Associated Press
Gov. John Baldacci comes under fire after he appointed Assistant Attorney General Susan Sparaco to serve as District Court Judge. Sparaco is the domestic partner of Gov. Baldacci’s chief of staff.

Let public be heard in same-sex marriage debate – The Des Moines Register
Mike Manno, a West Des Moines attorney, responds to two earlier Register article and defends the argument that the voters should ultimately decide the fate of same-sex marriage and that discussion of judicial impeachment should be left on the table for the legislators.

Click here for more news on fair and impartial courts issues from the Brennan Center for Justice E-lerts.

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