Will Partisanship Undermine the Judiciary?

GOP senators want political parties, and not the president, to appoint the next Supreme Court justice. But history shows a more noble way.

Senate Minority Leader Harry Reid and the Democratic leadership appeal to their Republican colleagues in front of the U.S. Supreme Court. (Jim Watson / Getty)

Samuel Chase—“Old Bacon-Face”—was probably the most partisan justice in Supreme Court history. While sitting as a circuit judge, he’d make partisan speeches from the bench and drive lawyers out of his courtroom—before clapping their Jeffersonian clients into jail. In one treason trial, Chase announced his legal opinion in writing before the trial began, then he sentenced the hapless dissident to death. (President John Adams intervened with a pardon before the defendant could be hanged.)

But in his intemperate career, Chase did the Republic one signal service: In 1805, he was impeached by the House of Representatives—the only Supreme Court justice ever to suffer that fate—but then acquitted by the Senate. Chase’s enemies had the votes to convict him, but they chose not to do so because, after a sober debate, they came to believe that the Supreme Court should not simply be a third outpost of partisan politics.

The death and resurrection of Samuel Chase may offer a lesson to today’s Senate Republicans, who are crusading to establish the Court as an official theater of partisan warfare. The American people, they now suggest, should decide which party appoints the next justice, rather than the president, to whom the Constitution entrusts the job. (One Senator, John Cornyn of Texas, has gone so far as to imply he’d smear any nominee, no matter how upstanding: “There is no guarantee, certainly … they’re going to look as good as they did going in.”)

I fully realize that the GOP believes it has scores to settle over Supreme Court nominations. Nearly 30 years ago, Democrats voted down Robert Bork; 25 years ago, then-Senator Joe Biden presided over a contentious confirmation for Justice Clarence Thomas; and 10 years ago, then-Senator Barack Obama joined an attempted filibuster against the nomination of now-Justice Samuel Alito. Many Republicans claim that their sworn refusal even to hold hearings on any nominee President Obama brings forward is simply fair play.

Let’s assume those grievances have substance; they still have nothing on the Jeffersonian Republicans’ rage after the election of 1800. Consider: Federalist-appointed judges (including Chase) had viciously enforced the Sedition Acts, which made criticism of President John Adams and the Federalist Congress a crime. After Adams and the Federalists lost in a landslide to Jefferson, the lame-duck Federalist majority (1) spent more than a month blocking Jefferson’s victory in an attempt to throw the election to Aaron Burr; (2) jammed through a statute creating 16 new federal judicial appointments, all of which were filled with loyal Federalists; (3) appointed John Marshall, a partisan political aide to the defeated Adams, as chief justice; and (4) reduced the number of justices on the Court from six to five so that Jefferson would not have an appointment to provide what today would be called “ideological balance.”

Then the Federalists left town. With a new president and a Jeffersonian Congress, the shoe was on the other foot. Congress promptly restored the Court to six members, abolished the new circuit courts, and canceled the next two terms of the Court, so that it would not meet again until 1803. Then the new majority turned their attention to a handy constitutional tool: impeachment. They had the House majority needed to impeach and the Senate supermajority needed to convict. And their leader, Thomas Jefferson, embraced impeachment as a means of clearing obstructions in the path of his “Republican revolution.”

It may seem lawless today, but back then, the limits of impeachment were not so clear. The Jeffersonians had a legal rationale. Article II says that “civil officers” may be impeached for “treason, bribery, or high crimes and misdemeanors”; but in the case of judges, there is another wrinkle. Article III § 1 says that judges “hold their office during good behavior.” Thus, for a judge, the impeachment bar was lower—or so they argued. They tested this theory by impeaching and removing District Judge William Pickering, in essence for being drunk on the bench. The day Pickering was convicted, they began proceedings against Chase. It was an open secret that, after Chase was removed, the next target would be Chief Justice John Marshall.

Senator William Branch Giles, a Jefferson ally from Virginia, explained the Republican view: “Removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect, you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.”

All went smoothly at first; but after the House voted for impeachment, the focus shifted to the Senate, where Chase was defended by a Federalist dream team that included former Attorney General Charles Lee and Maryland Attorney General Luther Martin, a onetime delegate to the Constitutional Convention. In his closing argument, Lee warned the Senate: “You are now about to set an example in a case of impeachment which will have a most important influence in our country … An upright and independent judiciary is all-important in society. Let your example be as bright in its justice as it will be extensive in its influence.” Martin admonished “that unjust principles, adopted to answer particular purposes, are two-edged swords, which often rebound on the head of him who strikes with them, and that justice, though it may be an inconvenient restraint of our power while we are strong, is the only rampart behind which we can find protections when we become weak.”

A week later, on March 1, 1805, the unthinkable happened: A partisan majority, with vast power within its easy grasp, relented. Chase was acquitted on all charges, free to return to the Court.

It’s safe to say that the nation’s tradition of independent judges flows from the acquittal of Chase. And while the Supreme Court has often been drawn into partisan politics, the norm remains that judges are independent of Congress and even of the party that placed them on the bench. One need not view history with rose-colored glasses to see that, on occasion, an independent judiciary has served the nation well.

It is this tradition—not that the justices are apolitical (they’re not) but that they are not elected officials or representatives of parties—that the Republicans are now threatening. Their argument, at its base, is that the Supreme Court ought to be on the ballot, and that a justice should have no identity but that of the party and president who names him or her. From their lofty perch in the Senate, they are doing their best to convince the nation that this is how things should be.

How will that novel principle serve Americans if Donald Trump becomes their president? How will it serve the Republican senators if Hillary Clinton wins the office? Despite the rhetoric, this appointment will not settle the philosophy of the Court for the next generation. That process will happen, as it should, over the next five or six years, with ample, though indirect, input from the voters. The current senatorial tantrum is motivated neither by democratic spirit nor by love of the people, but by pure hatred of a president whose very existence is a stench in Republican nostrils. Giving in to that spite will set a precedent that may ill serve the nation for generations.

Is it possible that some in the Senate may do what the Jeffersonians did—count the stakes on the table and turn, at the last minute, away from partisan mischief? It seems unlikely. Unfortunately, Republican senators seem to believe that Obama is not just an opponent, but the devil himself. In Robert Bolt’s A Man for All Seasons, Thomas More asks his son-in-law, Roper, if he’d “[c]ut a great road through the law to get after the Devil?” When Roper says yes, More asks, “And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?”