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We should regard as a cautionary tale the proceeding accelerated 200 years ago this month when several members of the House of Representatives delivered to the Senate articles of impeachment against U.S. Supreme Court Justice Samuel Chase. For what sins did the House impeach Chase, a signer of the Declaration of Independence? The articles alleged a range of improprieties, but most historians agree that the real reason for the impeachment was that Chase was a vocal federalist. President Thomas Jefferson, a republican, thought the jurist spoke too freely from the bench, and the president engineered the proceeding. The two-month trial began early in 1805, presided over by Vice President Aaron Burr, then under indictment himself for the dueling death of Alexander Hamilton (which also occurred in 1804). The Senate acquitted Chase, but by a narrow margin, and he returned to sit on the bench until his death in 1811. The Chase impeachment was an early test of an idea introduced by our Constitution: true judicial independence. The House hasn’t impeached a member of the Supreme Court since then, and that should comfort us in these days of litmus tests, filibusters and interest groups demanding patronage for campaign support. But it takes little imagination to envision another, more contemporary group marching from one end of the Capitol to the other to deliver articles of impeachment. Partisan groups of one stripe or another have been increasingly brazen and urgent. Almost every controversial decision engenders a flood of challenges not to the powers of reason but to personnel. After the high court decided Bush v. Gore in December 2000, many angered by the outcome circulated petitions to oust the justices who joined in the per curiam opinion. The court’s divided decision last year on affirmative action in higher education in Grutter v. Bollinger spawned calls to remove the opinion’s author, Justice Sandra Day O’Connor. Three days later, when the court invalidated a Texas sodomy law, several displeased conservative groups called for the impeachment of the justices in the majority-what one referred to as “The Twisted Six.” In each case, opponents went so far as to circulate dozens of petitions. And a related current of impeachment fever caught on recently in Congress- the Constitution Restoration Act of 2004 (HR 3799), now parked in a House subcommittee, which would forbid all federal courts from relying on any international source of law and deny them jurisdiction over cases involving federal, state or local officials arising by reason of that official’s “acknowledgement of God as the sovereign source of law, liberty or government.” Significantly, violation of these provisions by a federal judge would be an impeachable offense. A vital balance Those who wrote the Constitution got a few things wrong (slavery for one), but the independence with which they cloaked the judiciary was crucial to the democracy, and remains so. Judicial independence is just what the phrase implies: The other branches of government and advocacy groups should leave federal judges free from pressure to decide cases on the basis of anything but the law and the facts. The reasons for judicial independence, novel 200 years ago, are well established now. There are already two political branches of government, and their elected officials serve the valuable purpose of reflecting the current will of their constituents. But contemporary mores aren’t always well thought through, and later generations often wince to see what their predecessors approved. Political leaders don’t always make bold decisions, and they seldom do if those decisions might be unpopular. Remember that it was through the courts that desegregation gained real momentum in this country. Checks and balances protect a democracy from impulsivity and shield the rights of a few from the caprice of the many. The law is to remain neutral regardless of the race, ethnicity, gender or wealth of those before it, and that neutrality relies in great measure on judicial independence. A court that is too susceptible to impeachment could well become a court that acts in fear of the other branches of government and of strong-willed advocacy groups. None of that means that Americans should not remain free to criticize judges for the decisions they make. The First Amendment and the favorite pastime of too many lawyers demand such free communication. That also does not suggest that justices of the Supreme Court always make courageous (or even good) decisions, but there is a critical difference between a bad decision engendered by a judge’s faulty reasoning and one caused by fear of political repercussions. And there will, of course, always remain proper bases for impeachment-bribery, treason, murder, to name just a few-but we must agree now that a decision reached through the proper process of the court should never be a reason for judicial impeachment. Perhaps the recent talk of judicial impeachment and restriction of jurisdiction is simply the product of our hypercommunicative Internet society. But we seem somehow less respectful of our institutions and more willing to breach walls that were meant to be all but impregnable. It seems just a matter of time before someone takes impeachment talk beyond Internet vitriol and petitions. Just this year, the Iraqi Provisional Authority, so influenced by our own government, enacted an interim constitution that calls for judicial independence in terms far more explicit than those in our own Constitution. As we install so important an idea in a fledgling democracy, perhaps we should take a moment to reflect on its importance here as well. David R. Fine is a partner in the Harrisburg, Pa., office of Kirkpatrick & Lockhart.

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