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Impeachment and tenure

By Jack M. Balkin

As I continue to try to think through where I stand on the John Yoo question, I find myself thinking of the standards for impeaching the only other people in contemporary American society who have lifetime tenure--i.e., federal judges. I take it that we all agree that it is illegitimate to advocate impeachment because we disagree with a judge's opinions and, indeed, believe they adopt a pernicious view of the law. If there is an exception to this rule, it is presumably if (and only if) we believe the judge's decision was truly "corrupt" in the sense of self-consciously rejecting what he/she believed, in all sincerity, the law requires in favor of a position that will help his/her political party or worse (such as responding to a bribe). Thus the controversy, for some, about Bush v. Gore, a decision I will loathe until my dying day. But how many of us would impeach the "Bush five," rather than settle for denouncing them? So, to bring this to the central matter under discussion:

Let's stipulate that there are all sorts of problems in the quality of the analysis offered by John Yoo in the two torture memoranda. Do we have satisfactory criteria for saying that they are worse than, among others, the following opinions of the U.S Supreme Court:

John Marshall's opinion in Marbury v. Madison (with regard to his interpretation of Section 13 of the Judiciary Act of 1789 and then Article III, both of which he misquotes);
Joseph Story's opinion in Prigg v. Pennsylvania (which truly establishes that the US is a "slaveholder's republic");
Roger Taney's opinion in Dred Scott (especially after reading Mark Graber's wonderful book on the case);
Joseph Bradley's opinion in The Civil Rights Cases (which returns African-Americans to the tender mercies of the white ruling class in the ostensibly defeated Confederate states);
the per curiam opinion in Bush v. Gore (nothing need be said);
John Roberts's opinion in Parents Involved (or, for some of you, Justice Breyer's opinion in same)(each of which basically accuses the "other side" of basic incompetence in their ability to understand and interpret the Fourteenth Amendment and prior cases involving same)?

No doubt others would offer other examples (perhaps Holmes's opinion in Debs v. US or Miller's in The Slaughterhouse Cases, for some people who actively participate in Balkinization discussions, Blackmun in Roe v. Wade, etc.).

The point is that very few, if any, of us, counsel that the authors of these these "performative utterances" (i.e., they actually established the law and were not merely opinions about what the law might be, at least for most members of the community that recognizes some form of judicial supremacy) be impeached. Why precisely not? And, more to the point, if we are so tolerant of truly egregious decisions by federal judges, then what, precisely, makes us less tolerant of John Yoo? It would be easy if we thought he was on the take or even being motivated by what would best help the Republican Party. But I think there is no reason to believe this and every reason to believe that he genuinely, if for many of us wrongly, believed that the highest security interests of the United States were involved. Compare, for example, the dissenting opinion of Chief Justice Vinson in the Steel Seizure Case, which viewed the Korean War as the first battle in World War II.

One might respond, of course, that all of these judicial decisions were public and Yoo's memo was decidedly not designed to see the light of day, but how does this affect the argument about impeachability/loss of tenure? Why is the author of a terrible, perhaps even evil, judicial opinion protected merely because his/her handiwork is public?

A side question: If John Yoo is vulnerable, then why aren't there calls for impeaching Jay Bybee, who obviously signed the first torture memo? And, for that matter, isn't there at least as much reason to view Bybee as being "improperly motivated" (by the desire to get his judicial apponitment) as John Yoo? Again, I emphasize that none of these questions is meant to be "rhetorical"?

Full post as published by Balkinization on April 13, 2008 (boomark / email).