We watch with alarm the legislative proceedings in West Virginia impeaching all the justices of the Supreme Court of Errors. Not that some of the justices don’t richly deserve their fate, but the overwhelming importance of judicial independence in our democracy, of which we lawyers must constantly remind our elected officials, counsels considerably more caution than the West Virginia politicians have thus far shown.
As usual, one should read the fine print before making decisions. One of the four impeached justices was already under indictment. (The fifth justice pleaded guilty to a crime and resigned in July.) Of the three remaining justices, only one, who resigned shortly after the impeachment vote, is charged with what the headlines are all about: extravagant office redecoration expenses. As we read the fine print we see that the impeachment articles voted against the other two justices, Chief Justice Workman and Justice Walker, are only for not putting policies in place to rein in the spending of all the justices, and, in the case of the Chief Justice, for approving allegedly improper expenses of trial judges when sitting on appeals in place of Supreme Court justices. While Chief Justice Workman’s supervisory role puts her in a more exposed position than that of Justice Walker, we do not believe that their actions rise to the level of impeachable offenses, even though maladministration is one of the causes for impeachment under the West Virginia Constitution.
Impeachment is a blunt and powerful tool. It is there for criminal acts, to be sure, but its primary role in a constitutional democracy is to remove an officer in the government for a gross abuse of power. Indeed, the impeachment power is a bulwark of the separation of powers, because it is there to prevent an aggrandizement of power to the detriment of the legitimate power of other officers in the government. Perhaps legal but outrageous expenses qualify as a gross abuse of power, but surely a failure of some judges to self-regulate their counterparts within a separate and independent branch of government does not.
The problem with stretching maladministration to find an abuse of power is that it leads to the impeachment power itself being an abuse of power. Once the legislative branch starts removing members of the judicial branch without the most persuasive of reasons, it will thereafter take some brave justices to stick their necks out on anything, including decisions on appeals. When that happens, judicial independence will be a thing of the past.