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Analysis

Impeachment and Removal of Judges: An Explainer

Judicial impeachment shouldn’t be used to punish judges for their rulings. Here’s why.

Last Updated: May 6, 2022
Published: March 23, 2018

This year, legis­lat­ors in Ohio and a Repub­lican Party offi­cial in North Caro­lina have threatened to impeach justices on their state supreme courts in response to decisions those legis­lat­ors disagree with. This is not the first time partisan disagree­ment over a court decision has led to impeach­ment threats. But if the legis­lat­ors follow through, they would toss aside a centur­ies-old under­stand­ing that if the impeach­ment power is used to punish judges for their rulings, it under­mines the vital inde­pend­ence of our judi­cial branch. Here’s what you need to know about impeach­ment:

What is judi­cial impeach­ment?

Impeach­ment is a process by which the polit­ical branches of govern­ment — usually the legis­lature — can remove judges from office. Because the impeach­ment power lies primar­ily in the hands of politi­cians, it is at times threatened for partisan reas­ons, but the impeach­ment and removal of judges is in fact rare and usually limited to grave ethical or crim­inal miscon­duct such as perjury, fraud, or conflicts of interest.

How does the impeach­ment process work?

Federal and state consti­tu­tions provide differ­ent mech­an­isms for impeach­ment of judges, but impeach­ment is gener­ally a two-step process.

With respect to federal judges, under Article I of the United States Consti­tu­tion, the House of Repres­ent­at­ives has the power to impeach and the Senate the power to hold a trial to determ­ine whether removal is appro­pri­ate. The House can impeach a judge with a simple major­ity vote. However, a judge may only be removed from office follow­ing a trial and a vote to convict by a two-thirds major­ity of the Senate.

Most states’ proced­ures for the impeach­ment and removal of judges are similar to the federal approach (see Pennsylvania, for example), requir­ing a major­ity vote of the lower house in the legis­lature and a two-thirds vote of the upper house. But in some states (includ­ing New York and Nebraska), the trial follow­ing impeach­ment is conduc­ted by a court comprised of state offi­cials and/or state judges. And in others, the number of votes required to impeach or convict differs.  

How common is it to impeach judges?

Impeach­ment of judges is rare, and removal is rarer still. With respect to federal judges, since 1803, the House of Repres­ent­at­ives has impeached only 15 judges — an aver­age of one every 14 years — and only eight of those impeach­ments were followed by convic­tions in the Senate. Justice Samuel Chase is the only Supreme Court justice the House has impeached, and he was acquit­ted by the Senate in 1805.

Impeach­ment in the states has been simil­arly rare. A review of stud­ies by the Amer­ican Judicature Soci­ety and the National Center for State Courts, as well as news articles, reveals just two instances of a state judge being impeached in the last 25 years. In 1993–94, Pennsylvania impeached and removed the first and only judge in its history, Supreme Court Justice Rolf Larsen, and in 2000, New Hamp­shire impeached, but the state senate declined to remove, Supreme Court Justice David Brock.

There are more instances, however, of legis­lat­ors unsuc­cess­fully call­ing for the impeach­ment of a judge. In just the last four years, legis­lat­ors in at least three states have intro­duced legis­la­tion call­ing for at least an invest­ig­a­tion into whether a sitting judge should be impeached: In New Hamp­shire, HR 7 (2015) proposed invest­ig­at­ing whether Judge Jaca­lyn Colburn had over­stepped her author­ity in instruct­ing the state to spend money to print a ballot meas­ure; in Pennsylvania, HR 389 (2016) proposed invest­ig­at­ing Judge Kelly Ballentine for dismiss­ing her own park­ing tick­ets and fail­ing to file tax returns; and in West Virginia, HR 4 and SR 44 (2018) called to invest­ig­ate Supreme Court Justice Allen Loughry II’s excess­ive spend­ing on office renov­a­tions and improper use of state prop­erty.

What conduct consti­tutes grounds for impeach­ment?

The United States Consti­tu­tion provides little guid­ance as to what offenses consti­tute grounds for the impeach­ment of federal judges: as with other govern­ment offi­cials, judges may be removed follow­ing impeach­ment and convic­tion for “Treason, Bribery, or other high Crimes and Misde­mean­ors”; other­wise, under Article III, Section 1, judges “shall hold their Offices during good Beha­viour.”

However, the impeach­ment power has histor­ic­ally been limited to cases of seri­ous ethical or crim­inal miscon­duct. For example, in 2009, the House impeached U.S. District Court Judge Samuel B. Kent on charges of sexual assault, obstruct­ing an offi­cial proceed­ing, and making false state­ments. Kent resigned before the Senate tried the charges. The next year, the House impeached U.S. District Court Judge G. Thomas Porteous Jr. on alleg­a­tions of bribery and making false state­ments. The Senate convicted Porteous. Of the 15 federal judi­cial impeach­ments in history, the most common charges were making false state­ments, favor­it­ism toward litig­ants or special appointees, intox­ic­a­tion on the bench, and abuse of the contempt power.

While state consti­tu­tions vary in their defin­i­tions of impeach­able offenses, the few recent success­ful impeach­ment efforts in states confirm that legis­lat­ors gener­ally have limited that power to cases of seri­ous ethical and crim­inal viol­a­tions. For example, the 1994 removal of Pennsylvania Supreme Court Justice Rolf Larsen involved charges that Larsen had asked a doctor to write fraud­u­lent drug prescrip­tions, improp­erly commu­nic­ated with lawyers and a trial judge about a pending case, and lied under oath. And New Hamp­shire Supreme Court Justice David Brock was impeached for improper commu­nic­a­tions in two cases and for lying under oath.

Can judges be impeached for their rulings on the bench?

Histor­ical prac­tice suggests a strong tradi­tion against impeach­ing judges for judi­cial rulings. Chief Justice William Rehnquist, who wrote a book examin­ing the history of judi­cial impeach­ment, found that early histor­ical uses of the impeach­ment power estab­lished a norm that “judi­cial acts — their rulings from the bench — would not be a basis for removal from office by impeach­ment and convic­tion.”

Accord­ing to Rehnquist, the attemp­ted removal of Supreme Court Justice Samuel Chase in 1804 was, in partic­u­lar, “enorm­ously import­ant in secur­ing the kind of judi­cial inde­pend­ence contem­plated by” the Consti­tu­tion. Pres­id­ent Thomas Jeffer­son, a Demo­cratic-Repub­lican, encour­aged the House to impeach Chase, a Feder­al­ist, after Chase openly criti­cized the pres­id­ent and his policies to a Baltimore grand jury. In addi­tion to the charge that his partisan state­ments under­mined the judi­ciary, the charges against Chase ulti­mately included inflated alleg­a­tions of miscon­duct in several trials. The House impeached Chase in 1804, but the follow­ing year, the Senate declined to convict, despite Jeffer­son’s party hold­ing a super­ma­jor­ity. This failed impeach­ment helped set the bounds of the proper use of the impeach­ment power — includ­ing that judi­cial decisions should not be a basis for remov­ing judges from the bench.

This norm contrib­utes to the United States’ care­fully balanced three-branch system of govern­ment, which requires that judges remain insu­lated from polit­ical pres­sure when decid­ing cases. Job secur­ity is one import­ant contrib­utor to main­tain­ing judi­cial inde­pend­ence — so that judges are decid­ing cases based on their under­stand­ing of what the law requires and not worry­ing that they could be removed from office if power­ful polit­ical actors disagree with their rulings.

Have there been abuses of the impeach­ment power?

Despite this histor­ical under­stand­ing, there have contin­ued to be attempts to use the impeach­ment power for partisan reas­ons. In the heat of the 1996 pres­id­en­tial campaign, for example, both candid­ates — Pres­id­ent Clin­ton and Sen. Bob Dole — attacked a sitting federal district court judge for ruling evid­ence inad­miss­ible in a case against a drug cour­ier and indic­ated they would support the judge’s removal. Four sitting appeals court judges joined together in a remark­able state­ment to condemn the polit­ical attacks on Judge Harold Baer Jr., explain­ing that the Consti­tu­tion does not “provide for resig­na­tion or impeach­ment whenever a judge makes a decision with which elec­ted offi­cials disagree.”

“These attacks do a grave disser­vice to the prin­ciple of an inde­pend­ent judi­ciary and … mislead the public as to the role of judges in a consti­tu­tional demo­cracy,” the judges said.

A 2011 review by the National Center for State Courts’ Gavel to Gavel website also found numer­ous bills intro­duced in state legis­latures that year to impeach judges and justices because of disagree­ment over specific rulings.

Several of those intro­duc­tions were part of a failed effort in Iowa to remove four Iowa Supreme Court justices for their decision in a high-profile case about marriage rights for same-sex couples. The impeach­ment attempt garnered signi­fic­ant media atten­tion, but also wide­spread condem­na­tion — even from members of the spon­sors’ own party. Iowa Governor-elect Terry Brand­stad (R) said at the time that disagree­ment over a ruling did not consti­tute grounds for impeach­ment. “There’s a differ­ence between malfeas­ance and over-reach­ing,” said Brand­stad. “The Consti­tu­tion says what the grounds for impeach­ment are. My read­ing is it’s not there.” Iowa House Speaker Kraig Paulsen (R), whose cham­ber would have voted on the impeach­ment, sent the resol­u­tions to languish in an inact­ive commit­tee and said, “I disagree with this remedy, … I do not expect it to be debated on the floor of the House, and if it is, I will vote no.”

This year, 12 Repub­lican legis­lat­ors in Pennsylvania have intro­duced resol­u­tions to impeach four sitting Pennsylvania Supreme Court justices for their ruling in a partisan gerry­man­der­ing case that may cost the Repub­lican Party congres­sional seats in the upcom­ing elec­tion. Former U.S. Court of Appeals Judge Timothy K. Lewis, appoin­ted by Pres­id­ent George H.W. Bush, echoed the concerns of past offi­cials, writ­ing that “to threaten judges who issued an unfa­vor­able decision … falls outside the bounds of appro­pri­ate and consti­tu­tional conduct.”

(Image: Flickr.com/ Norman Maddeaux)