The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.
-- US Constitution, Article III
WHY WASN'T Garrity impeached?
US District Judge Arthur Garrity
Twenty years after the start of forced busing in Boston, there is almost total agreement that it was a disaster. What US District Judge W. Arthur Garrity Jr. set loose on the schools and the families of Boston -- the violence, the boycotts, the ripping of community ties, the pitting of neighborhood against neighborhood, the inflamed racial hatred, the emotional trauma -- was horrific. Garrity's busing plans were punitive, dangerous and wholly counterproductive. So why wasn't he punished?
In 1974 a majority of Bostonians regarded Garrity's orders as shocking miscarriages of justice. The longer the buses rolled, the larger that majority grew. By 1982, opposition to busing even among black parents had reached a phenomenal 80 percent. The Boston Globe (one of the rare Boston institutions to support busing in the '70s and '80s) now puts it plainly: "Busing has been a failure in Boston," the paper editorialized on June 19. "It achieved neither integration nor better schooling."
Shouldn't a judge whose bad decisions harmed the community -- and whose decisions were understood by nearly the entire community to be harmful -- pay a price for his blunders?
The Framers of the Constitution thought so. The system they devised was one in which federal judges would be appointed for unlimited terms but could be impeached and removed from the bench for "high crimes and misdemeanors" (Article II) or a deficit of "good behavior" (Article III). Those phrases are ambiguous and subjective -- purposely so.
Impeachable offenses, wrote Alexander Hamilton in The Federalist (No. 65), "are of a nature which may . . . be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." That's Hamilton's emphasis on "political," not mine. He and his contemporaries may not have known about school buses, but they did know that a judge's obsession could do damage "to the society itself." The people had a right, the Framers believed, to get rid of such judges.
In a government based on checks and balances, the separation of powers, and the sovereignty of the people, impeachment is a constitutional tool for ousting judges who have lost the public's confidence or become arrogant or abusive. Regrettably, it is a tool grown rusty from lack of use. Very few judges have ever been impeached, and those few have mostly been blatant crooks. Ex-judge Alcee Hastings, impeached and convicted in 1989, took bribes. (Now he's a member of Congress.) Walter Nixon, also booted in 1989, was a perjurer.
By limiting impeachment to cases of criminal conduct we have disabled the only constitutional restraint on judicial hubris and despotism. Result: an increasingly autocratic federal judiciary. Courts brazenly assume legislative and executive powers that belong to other branches of government. Instead of defying the black-robed renegades, legislators and executives meekly comply.
Andrew Jackson once said of a chief justice: "John Marshall has made his decision; now let him enforce it!" We could do with a little of that spirit today. Impeachment of federal judges should be resorted to more often. It should be part of the robust, republican political skirmishing by which We, the People rule ourselves.
When Judge Garrity sets about wrecking the public schools; when Judge Robert Keeton won't let the sheriff of Suffolk County double-bunk inmates in cells built for two; when Judge David Mazzone threatens to shut down all construction projects in Eastern Massachusetts in order to get his way on a land transfer, why shouldn't furious voters or members of Congress mobilize to impeach them? The Constitution, after all, makes the people supreme. Not the judges.
We are entirely too worried about "politicizing" the judicial process. The Framers weren't. James Wilson, a Pennsylvania jurist who signed the Declaration of Independence, attended the Constitutional Convention, and was named to the Supreme Court by President Washington, wrote that impeachment was designed to apply "to political characters, to political crimes and misdemeanors, and to political punishment."
Impeachment run amok would gravely undermine judicial independence, of course. But in the federal judiciary's 205 years, reckless impeachments haven't been a problem. Reckless judges have.
In Massachusetts and in other states, elected officials are routinely obstructed by unelected, unaccountable judges who have taken on powers never delegated to them by the Framers. Garrity didn't just rule on a point of law. He took over the Boston public schools, then tortured them with his micromanagement.
The judge claimed to act in the name of the Constitution. So he undoubtedly believed. No one ever quarreled with Garrity's sincerity. But a sincere judge can do bad things, and what Garrity inflicted upon Boston was awful. The Constitution doesn't say Boston had to take it. In fact, it says the opposite.
(Jeff Jacoby is a columnist for The Boston Globe. His website is www.JeffJacoby.com).
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