"During good behavior" is the constitutional standard for a federal judge to continue serving. Sen. Ken Salazar has wondered publicly whether Judge Edward Nottingham of the US District Court in Denver measures up. It certainly appears he does not, and I hope the senator takes action. We think of the federal judiciary as serving for life, only because a mere 13 judges have ever been impeached, and only seven of those have actually been convicted and removed from office. But the congressional power of removal is right there in Article II, Section 4, of the Constitution.
The allegations against Nottingham, a George H.W. Bush appointee and former law-firm associate of Salazar's, were characterized by the senator in a Denver Post story on Mar. 28 as suggesting the judge has failed to "serve in an exemplary manner, both on and off the court." He is accused of drunken carousing at strip clubs, surfing porn sites in his chambers, patronizing an escort service, and behaving abusively toward a wheelchair-bound woman in a parking dispute.
The case highlights a definitional gap between the Article II language about "impeachment for... treason, bribery, or other high crimes and misdemeanors," and the Article III clause about good behavior. While being a sleaze, a lush, and a boor may not be a firing offense in some jobs, let alone a crime or misdemeanor, it surely violates the behavior expected of federal judges, as Salazar's words indicate. "Bringing disrepute on the federal judiciary and betraying the public's trust" were two of the three offenses for which Judge Harry Claiborne of Nevada was impeached and convicted in 1986, according to the Justice at Stake campaign. Sounds like Judge Nottingham to me.
The Justice at Stake backgrounder linked above quotes the late Chief Justice William Rehnquist as saying that removal of judges by Congress over policy disputes was forever put off limits by the 1806 acquittal of Samuel Chase, the only Supreme Court justice ever impeached. This is no more than one man's opinion, however, since the judicial branch (and the executive) explicitly have no role whatsover in, and no judgment over, the legislative branch's impeachment power. Indeed the institutionally self-serving bias of Rehnquist's opinion could not be more obvious.
Of course he wouldn't want any countervailing authority from Congress against the Supreme Court's potential overreaching and abuse of judicial power. But so what? It remains for Congress to do what its members have the constitutional fidelity and political courage to go ahead and do.
Though I as a Republican seldom agree with Salazar as a Democrat, in this case I salute his fidelity and courage for threatening the ultimate sanction against a seemingly out-of-control Judge Nottingham. The concern here is obviously not policy, but morality, ethics, decorum, and demeanor (NB: the opposite of misdemeanor). Regardless, I argue we need more -- much more -- recourse to impeachment of judges, and as the legislative branch begins finding its nerve on the personal-conduct front, perhaps congressmen and senators will start picking the right fights on the power-abuse front as well.
Justice at Stake, as you will see from their website, is a coalition of the judicial and legal establishment which seems to want just the opposite of what I and other judicial reformers do. They note worriedly that three of the seven successful removals of wayward federal judges have occurred in the past two decades -- that of Claiborne in 1986, followed by those of Judge Alcee Hastings in Florida for perjury and bribery and Judge Walter Nixon in Mississippi for lying to a grand jury, both in 1989. They also note that threats of impeachment to state judges have recently almost doubled, from 27 in the four years before 2001 to 51 in the four years after.
This they attribute to a "growing 'outrage industry' seeking to intimidate and fire judges." That's one view. Another view would be that judicial activism on policy -- and the accompanying God complex leading to personal recklessness such as Colorado has seen in the recent Nottingham, Manzanares, and Biddle episodes -- has pushed citizens and political actors to the breaking point, with consequent willingness to treat the impeachment provisions of our federal and state constitutions as less of a dead letter.
One of the most dramatic moments of my six years in the Colorado Senate (and one of my keenest personal regrets for not having supported it) came in the spring of 2004 when then-state Rep. Greg Brophy and other House Republicans filed House Resolution 1007 as a bill of impeachment against state Judge John Coughlin on two counts of "malfeasance in office for denying the right to freedom of religion guaranteed by the First Amendment of the United States Constitution and Section 4 of Article II of the Colorado Constitution" and one count of disregarding the Colorado Revised Statutes, stemming from his ruling in a two-mommies adoption case.
That measure, sadly, died in the Republican-controlled House Judiciary Committee, with Speaker Lola Spradley offering little encouragement and with Gov. Bill Owens -- along with Senate President John Andrews -- on record against it.
But Brophy was right and I was wrong. If I had it to do again, I would support the Coughlin impeachment. Ken Salazar is right about the Nottingham impeachment today. It should proceed.