Judicial Impeachments Should Be a Last Resort

“This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”

With a Truth Social post last week, President Donald Trump added his voice to the growing chorus of Republicans and GOP-aligned pundits calling to impeach federal judges for issuing rulings blocking or pausing Trump administration policies. Members of the House of Representatives have already introduced several impeachment resolutions, and judges themselves have certainly noticed the heightened political and rhetorical attacks on the judiciary. A sitting president publicly calling for the impeachment of a judge who has ruled against him is unprecedented.

Unprecedented, but not unexpected. Considering Trump spent much of his first term complaining about “so-called judges” and much of Biden’s term complaining about “Trump-hating judges,” it should come as no surprise that he and his allies have again gone after judges who rule against him as his second term begins.

Still, we are entering unusual and dangerous territory. Criticism of the courts is nothing new, of course—just look at Trump’s immediate predecessor—but serious threats of impeachment are extremely uncommon. Acting on that threat can undermine judicial independence and the rule of law, of course, but even the threat itself can intimidate judges into doing what politicians want.

Of course, these attacks on federal judges from Trump and his allies are not happening in a vacuum. Trump has made a number of bold moves through unilateral executive action in the first few months of his second term, while lawmakers in Congress have been mostly content to sit on the sidelines. The legal authority underpinning much of that presidential activity has not always been clear, with many of Trump’s actions relying on untested theories, aggressive interpretations of the law, and in some cases the reversal of existing Supreme Court precedents.

As a result of both its own aggressive actions and the dynamic of polarized politics, Trump’s first administration faced an extraordinary number of lawsuits resulting in nationwide injunctions—judicial orders prohibiting a policy from being implemented—and that trend has continued thus far in his second term. It is true that incoming presidential administrations often face well-organized litigation campaigns by state governments held by the opposite party and affiliated interest groups, and that those litigants can often rack up some quick victories in carefully chosen district courts before the lawsuits get bogged down in appeals.

Federal district judges have grown more inclined in recent years to issue broad rulings purporting to halt administration efforts to advance its policies not only in a particular case but across the country. Parties alleging that the executive is taking some action against them in violation of the law can ask the court to stay—or enjoin—that action, first temporarily as the issue is argued and perhaps permanently if the judge decides against the administration. So-called nationwide or universal injunctions go beyond the individual party in a particular case and order the administration not to do anything similar in any other case. Such sweeping injunctions have been quite controversial, and the Trump administration is pressing the appellate courts not only to agree with the executive about the merits of their policy actions but also to rein in the trial courts on the expansive remedies that they are offering plaintiffs, sometimes at very early stages of proceedings before the facts and legal issues have even been seriously vetted.

But the data indicate that the White House bears plenty of responsibility for the record number of injunctions it has faced. In his second term, the Trump administration has lost as often before Republican-appointed judges as it has before Democratic-appointed judges. In its early days, the administration is getting outlawyered and the courts are proving to be quite skeptical of the lawfulness of some of its most high-profile actions.

Federal judges hold their office during “good behavior,” which is understood to be lifetime tenure—unless they commit impeachable offenses. Congress has the power to impeach, convict, and remove them for committing acts of “treason, bribery, or other high crimes and misdemeanors,” a necessary check to address not only criminal behavior but also abuse of power in the judiciary. Lawmakers have exercised this power only 15 times in U.S. history, however, most recently in 2009 and 2010: One judge was charged with sexual assault, the other with accepting a bribe.

Identifying abuses of the public trust and condemning them when the officer is driven by corrupt motives is fairly straightforward. The judge who abuses his power to line his own pocket or the diplomat who abuses his power to advance the interests of a foreign adversary are unlikely to find a sympathetic hearing on the floor of the Congress if they attempt to offer justification for their actions. More difficult is the case of the officer who exercises power in a way that some find abusive but that others do not, who acts on motives that are public-spirited but who pursues goals that much of the public would reject. A judge who thinks an alien needs more due process before being deported than the administration does might be wrong on the law, but is not acting to advance his or her personal interests.

When there is reasonable disagreement about whether a given action is in fact an abuse of the judicial power, lawmakers should be reluctant to deploy the impeachment power. Ordinary politics consists of debates over constitutional meaning, efforts to advance favored understandings, and attempts to better effectuate them in political practice. Constitutional disagreements are hashed out through elections, judicial appointments, and litigation. Part of our normal political give-and-take is the recognition that others who hold deeply disagreeable constitutional, political, and policy views might nonetheless win elections and gain offices.

Indeed, impeachments in general should be a last resort to addressing abuses of power. While there are certainly occasions when nothing short of impeachment and removal will be adequate to remedy the problem posed by a misbehaving officer, we have more routine tools for addressing constitutional abuses. In the case of lower court judges, the first and most routine tool for addressing rulings that seem to be incorrect is to appeal that ruling to a higher court. If a judge has truly acted in a manner that is beyond the pale, then correction by an appellate court can be easily achieved. Only if a judge seems to make it a practice of engaging in such behavior should the blunt tool of impeachment become necessary. The administration seems to have little patience this time around for normal governing procedures, but litigation requires some patience as cases are argued, decided, and appealed.

Threatening the impeachment of judges when litigation is still in process and the legality of the executive actions in question is open to debate is less about correcting an abuse of power and more about eliminating checks and balances on executive actions. The long-term damage to judicial independence and the constitutional system from such a premature impeachment of judges would be immense.