The particular genius of Marbury v. Madison was John Marshall’s act of jujitsu. President Jefferson wanted William Marbury kept off the federal bench and let it be known he would defy any Supreme Court order to the contrary, so Marshall delivered that outcome while seizing the larger prize of judicial review. Two centuries on, President Jefferson’s successor Donald Trump is reduced not to defying the Court but rather to tweeting ruefully that the judiciary’s consideration of his travel ban is “slow and political.”
The power to impeach officers of the United State government is one of the gravest powers entrusted to Congress in the U.S. Constitution. The power is far-ranging and flexible, laying at the feet of Congress the ultimate responsibility to insure that the officers of the federal government are acting in the national interest and not abusing their authority. Congress has not had many occasions to use the power over the course of the nation’s history, and the most frequent targets have been low-level judges who had engaged in undoubtedly bad behavior. Impeachments of more high-profile targets like presidents raise more difficult political and constitutional issues about how the power should be used and what the role of the impeachment power might be within the American constitutional system.
A group of law professors, now more than a thousand in number, has written a collective letter opposing Jeff Sessions’ nomination as Attorney General. The letter’s list of particulars against him is long—from his position on environmental laws to civil rights laws—as well as allegations of racial insensitivity that figured in his failed nomination to be a federal district court judge thirty years ago.
Of course, these law professors have every right to oppose Jeff Sessions as citizens, but they are clearly here writing as legal scholars, noting their position as law professors at the start of the letter and signing with their institutional affiliations.
What is notable, however, is the lack of any scholarly argument in the letter. There is no analysis of why Sessions’ positions are wrong as matter of law or policy.
In an op-ed in the New York Times, two Harvard political scientist professors, Steven Levitsky and Daniel Ziblatt, have sounded the alarm about democracy in America. It is in danger they say mostly because democratic institutions are no longer backed up by the “guardrails of democracy”—deep norms of “partisan self-restraint and fair play.” Sadly, their analysis of the decline of these norms is itself both partisan and shallow. It is partisan because they note only Republican breaches of such norms, when Democrats have engaged in breaches as well. Its shallowness in turn comes from their partisanship. They blame a particular political party rather changes in the nature of our polity, like the growth in the power of government and decline of federalism.
The partisanship of Levitsky and Ziblatt is striking. They claim that one of the informal norms is that legislative votes about matters of “extraordinary importance,” like impeachments, be bipartisan and Clinton’s impeachment by Republicans was not. But the only previous impeachment of the President—that of Andrew Johnson—was also a party-line vote. The norm that creating new entitlements—also actions of extraordinary importance—should be bipartisan, however, is a much more established one: Social Security, Medicare and Medicaid all had bipartisan support. Yet President Obama enacted the Affordable Care Act without the support of even one moderate Republican such as Senator Susan Collins of Maine.
These Harvard professors decry the failure to vote on Merrick Garland, which they characterize in hyperbolic terms as “stealing” a Supreme Court seat.
Last week I participated in two panel discussions at a Virginia Continuing Legal Education seminar, held at the Washington Library at the General’s Mount Vernon estate (it’s a spectacular place). Technically the panel dealt with Executive Orders but the moderator was John Dean (of Watergate fame—fit as a fiddle after all these years). So naturally the talk turned to impeachments. That got me thinking: arguably, it’s quite likely that the next President or perhaps some other official will be impeached (though not convicted).