The Oregon Democratic Party says the Supreme Court’s decision last December in Bush v. Gore amounts to “high crimes and misdemeanors” justifying the justices’ impeachment. This bizarre step – and the deafening silence by the political, legal and media establishment – is the latest example of the far-left’s radical campaign to highjack and permanently politicize the federal courts.
In Bush v. Gore, the Supreme Court voted 7-2 that the statewide manual recount of presidential ballots ordered by the Florida Supreme Court violated the U.S. Constitution’s guarantee of equal protection because it lacked any uniform or consistent standards. The Oregon Democratic Party’s central committee, however, voted on July 22 to push for the impeachment of only five members of that majority: Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. These five had also voted that insufficient time existed to conduct a new statewide manual recount under constitutional standards.
It seems some people let their politics permanently cloud their judgment. The fact is, however, that the Supreme Court was correct in Bush v. Gore, a conclusion unaffected by the decision’s partisan political result.
All Americans – even Democrats – know why the court was right. Different vote-counting standards applied not only in different counties but even within counties at different times. While two people might cast identical ballots in different counties, one might be counted and the other rejected. Said the court, “This is not a process with sufficient guarantees of equal treatment” regarding the fundamental right to vote.
OK, so the manual recount scheme concocted by the Gore legal team to steal the election was unconstitutional. So what? Conducting elections by legitimate constitutional standards is vastly overrated anyway. Democrats wanted only a recount that would find enough votes for Gore to win. While the U.S. Supreme Court can do many things, however, it has yet to acquire power to turn back the hands of time. It may be able to re-write the Constitution, but re-writing the calendar is another matter entirely.
As even the Florida Supreme Court had to acknowledge, the Florida Legislature wanted to ensure that Congress would honor whatever slate of presidential electors Floridians selected. A federal statute guaranteed such validity, but only if electors were chosen by Dec. 12. The U.S. Supreme Court issued its decision – rendered, as it was, with blinding judicial speed – on Dec. 12. Al Gore’s lawyers had run out the clock by litigating every issue in sight; a little more restraint could have left enough time for the recount they sought under constitutional standards. Hey, actions have consequences.
As it is, people falsely accuse the Supreme Court of interfering with state election procedures. Had the court ignored the Florida legislature’s intention to secure validity for its electors and created a new recount timetable, it would have been guilty. The court, however, respected rather than violated Florida’s procedures and came to the only legitimate conclusion. The standardless recount ordered by the Florida Supreme Court violated the Constitution and no time remained to correct it.
Losing a close presidential election is frustrating, but instead of focusing on winning the next election, Oregon Democrats are calling to impeach judges who delivered a decision which, though absolutely right on the law, they did not like.
Democrats and other leftists once condemned such calls for judicial impeachment. On March 19, 1997, Sen. Patrick Leahy, now Judiciary Committee chairman, said that people “calling for the impeachment of Federal judges who decide a case in a way they do not like” threatens judicial independence and “demeans our Constitution.” His statement then should today be directed at Oregon Democrats: “It is wrong for some today to call for the impeachment of a Federal judge because of a disagreement with a single decision.”
Later that year, on Sept. 19, Sen. Leahy labeled “regrettable” and “disheartening” what he described as the “clamor for impeachment when a judge renders a decision” with which some disagree. He called such clamor “part of a partisan ideological effort to intimidate the judiciary.”
The leftist People for the American Way similarly condemned calls for judicial impeachment in its 1997 report titled “Judges Delayed, Justice Denied,” saying this effort will “undermine the independence of the judiciary” and do “damage to justice and democracy.” In a report titled “An Independent Judiciary” dated July 4, 1997, the liberal American Bar Association also cited “threats of impeachment” as examples of “unfair attacks” and “misinformed criticism” of judges that may undermine judicial independence.
Public officials may be impeached for actions exceeding their lawful authority. Judicial activism exceeds judges’ lawful authority by making or changing the law. So judges may be impeached for refusing to follow the law, but they may not be impeached for following it, no matter how objectionable the results. In Bush v. Gore, the court properly applied the Constitution; whether or not Oregon Democrats like the result, it was a legitimate exercise of judicial power and, therefore, not impeachable. It’s not just whether you win or lose, it’s also how you play the game.
So if Democrats and their leftist allies think calling for impeaching judges who exceed their authority is a partisan campaign undermining judicial independence and demeaning the Constitution, when will they condemn Oregon Democrats for demanding impeachment of judges who simply follow the law?
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