The judiciary isn’t above reproach – never was
The recent Senate hearing on judicial impeachment prompted the predictable response: that Congress has no business second-guessing judges for anything short of criminal conduct. This conventional wisdom deserves more scrutiny than it typically receives.
When Sen. Ted Cruz convened his subcommittee to examine the conduct of Judges James Boasberg and Deborah Boardman, Professor Stephen Vladeck testified that impeachment “is not and should not be a remedy for judges who issue rulings with which we disagree.” Chief Justice Roberts has declared that “the normal appellate review process exists for that purpose.” The implicit claim is that Samuel Chase’s 1805 acquittal settled the matter: Federal judges answer for their crimes, never their judging.
The historical record suggests otherwise.
As Professor Robert Luther III testified, abuse of official power accounts for 27% of all federal judicial impeachments – the same share as financial impropriety. Justice Chase, Judge James Peck, Judge Charles Swayne, Judge George English: All faced articles not for bribery or tax evasion, but for how they wielded the powers of their office. The majority of judicial impeachments from the Founding through the 1920s involved conduct on the bench. The notion that Congress may police only a judge’s finances finds little support in constitutional text or historical practice.
Alexander Hamilton understood this architecture. In Federalist 65, he defined impeachable offenses as those involving “the abuse or violation of some public trust.” He emphasized that the Senate – rather than the courts – determines the controlling standards, precisely because impeachment concerns the governance of the Republic. The Framers designed a system in which life tenure and the impeachment power work in tandem: security from ordinary political pressure, accountability for extraordinary abuse.
The cases at issue illustrate why this design matters.
Judge Boasberg approved secret subpoenas that swept up the phone records of ten Republican senators and six House members during Jack Smith’s investigation – without, according to testimony, requiring the special counsel to demonstrate he understood whose records he was seizing. The Speech or Debate Clause exists to protect legislative independence from precisely this kind of executive-branch intrusion. The “normal appellate review” Chief Justice Roberts invokes presupposes that the aggrieved party knows a ruling occurred. For sealed subpoenas targeting a coordinate branch, that premise fails.
Judge Boardman sentenced Nicholas Roske – who arrived at Justice Kavanaugh’s home with a firearm, zip ties, and a stated plan to assassinate Supreme Court justices – to 97 months in prison. The sentencing guidelines called for 30 years to life. Both parties agreed on that range. Boardman departed by 22 years, citing the defendant’s mental health struggles and transgender identity as mitigating factors. Reasonable people can disagree about judicial discretion in sentencing. But a variance of this magnitude for the attempted assassination of a sitting justice raises legitimate questions about whether the sentence reflects law or ideology.
Vladeck warns that discussing judicial accountability now, amid rising threats against judges, risks inflaming an already dangerous environment. The concern deserves respect. Yet public confidence in the judiciary depends on the perception that judges remain answerable to something beyond their own judgment. A system in which Congress may never examine how judges exercise their powers – only whether they filed accurate tax returns – is one the Framers would not recognize.
The Chase precedent bears closer examination than it typically receives. Chase was acquitted because enough senators concluded his conduct – intemperate grand jury charges, procedural rulings favoring the prosecution – did not rise to impeachable abuse. The Senate rendered a judgment on the merits. Six Democratic-Republicans crossed party lines to acquit a Federalist justice, demonstrating that the process can be political without being merely partisan. What the Chase trial established is that the Senate takes seriously its role as constitutional arbiter – and that acquittal, like conviction, requires deliberation on the facts.
Whether Boasberg and Boardman committed impeachable offenses is a question the Constitution assigns to Congress. That question deserves serious engagement on the merits, not dismissal as an illegitimate inquiry. Judicial independence serves the rule of law; it does not place judges beyond the scrutiny of the coordinate branches the Constitution empowers to check them.