Why I don’t favor the impeachment of Judge Fuller

In my post yesterday, I suggested a mechanism short of impeachment to get rid of Judge Fuller. Impeachment was not one of them. In this post I explain the fundamental reason why I don’t favor impeachment and why I am frightened by the thought.

Fuller’s despicable conduct was nevertheless private, and it was unconnected to the performance of his judicial duties. If you examine the prior impeachment cases tried in the Senate from the list and summary prepared by the Federal Judicial Center and presented in my (updated) post of yesterday, you won’t see anything comparable. Now, let me be clear, I don’t mean to excuse Fuller’s behavior or suggest that domestic violence should be tolerated in any way. I mean “comparable” in the way lawyers and judges parse precedents. And, what sticks out to me is the private nature of the abhorrent conduct.

It is perfectly fair for you to ask: So what? Here’s my answer: “I don’t trust the House of Representatives to exercise restraint once articles of impeachment are presented against a federal judge for conduct that is private in nature.” I fear political witch hunts against judges who have offended the party controlling the House.

Image credit: maghis.oxfordjournals.org

Image credit: maghis.oxfordjournals.org

I have thought a lot about impeachment. I even have experience advising a legislative body whether to impeach, and when the body elected to disregard my advice to condemn but not impeach, trying the impeachment case I advised against. I know what can happen when a legislative body gets wound up. Such bodies almost never exercise restraint. They don’t think about the consequences, and if they don’t like the political stripes of the person in the cross-hairs there is an almost irresistible urge to get partisan.

Let me give you an example of case that fully illustrates my fear. While I will not name the judge, the case I next describe is a real one.

Judge A killed a man. The judge was driving his car and crossed into an adjacent lane. The older man in that next lane was on a little motorcycle. The judge’s car hit the motorcycle, and knocked the operator to the concrete. He died at the scene or shortly thereafter. Judge A should never have been driving. He was blind in one eye and when his hearing aids failed to work properly (as they often did) he was deaf. Judge A was also an icon. He was revered by judges and lawyers across the nation. He was the very essence of a model judge, and various national organizations had recognized him as such. But a man was dead, and the judge’s poor judgment (“reckless driving”) compelled the local prosecutor to charge the judge. Judge A admitted his error, and was placed in a diversion program which required community service. The judge completed the community service hours as required. Judge A had decided lots of high-profile cases. The outcome of many of those cases was distinctly “liberal” when viewed from the fractured lens of the true believers on the right.

Now, if Fuller’s private conduct justifies impeachment, tell me why Judge A’s private conduct resulting in death does not also justify impeachment? More particularly, if Judge A really pissed off the House and that body had been fuming about his liberal decisions, do you really think Judge A would be treated fairly by the House? I don’t.

Get rid of Fuller, but don’t impeach him for his private conduct. The good men and women who serve the federal judiciary will rue the day if you do.


42 responses

  1. Come on, judge, you know better than that. Domestic violence is not “private conduct.” Domestic violence is a crime, and depending on the means used and the injuries caused, it can even be a felony. Crimes are not by any definition “private conduct.” They are as public as it gets, and that is why it is the government, not the victim, that prosecutes, and that is why criminal proceedings are public.

    As far as the difference with Judge A, Judge A may have acted negligently, even perhaps recklessly. But Judge Fuller acted intentionally and with malice.

  2. I might go along with you too judge since I know our elected officials are many bricks short of a load. But sorry he needs to go. The govt has no problem locking up and harassing citizens years later over old crimes that have nothing to do with the current issue. sometimes 10-20 or 30 years later. Our current illegal stock of sex registry law is a perfect example. Now the shoe is on the other foot and suddenly it’s Nah! that’s different. Sorry but it’s not!

  3. In that context, I can understand why you wouldn’t favor impeachment, and I would completely agree with that. I have very little faith in the ability or desire for people in DC to put the good of the people before partisan political games.

  4. Apples and oranges. Bad analogy, or you’re just trying to get everyone all riled up before the weekend. (Are your acts in this regard negligent or were they intentional? They happened in private, but are having a public effect).

    Judge A’s driving conduct was negligent, not intentional. (Or reckless, still not intentional.) Fuller’s conduct was intentional, and intent to disregard the law IS connected to the performance of his duties. Just because something happens in private does not mean it is not unlawful. Child porn and drugs happen in private. “Private” is of no consequence, particularly for one sworn to uphold the law.

  5. I am no fan of the USHOR, but even I would not compare it with the Unicameral. I doubt that the House can be expected to not give into occasional temptations to treat matters that do not bring the judiciary into bad repute as worthy of impeachment, but the House is the popular and more passionate body, as the Founders knew. Senate is supposed to check that passion, though there is the argument that direct election ruined the Senate as a break. But since Chase’s acquittal the House has never done a purely political impeachment of a judge. If it did its job the House would get the message. I do not know this answers your concern, though I notice your passion for democracy thins on this issue. As to your mystery judge, knowing the actual judge I am not able to comment. He is the best I appeared in front of in nearly 50 years and he has brought a wealth of credit to our courts.

  6. Agreed. And is this really so different from the Samuel Kent situation, where he was accused of sexually abusing two courthouse employees and admitted to non-consensual contact? If Fuller had beat up his wife in the courthouse, would that make impeachment more appropriate?

    I agree impeachment can be severely abused and partisan, but are Fuller and Kent really “slippery slope” material that will lead to a rash of politically based impeachments?

  7. 1st clerk,

    You are a great lawyer. I am not so sure, however, that you understand how the process can be misued for rank partisan purposes. Besides, aside from the pleasure of seeing Fuller in the impeachment dock, if he goes, why do you care how he goes?

    All the best.


  8. rodsmith,

    I want him gone too. I think it can be done short of impeachment. Impeachment poses risks to good judges. I would like to avoid that if I can.

    All the best.


  9. Mark,

    See my response to Ist clerk. Also, Kent’s conduct was intimately involved with the judicial function. Fuller’s conduct was not.

    All the best.


  10. Judge:

    I’m going to have to respectfully disagree on this. In addition to the negligent vs. intentional distinction referenced above, which is substantial, Fuller’s conduct reflects an underlying disdain and lack of respect or women, which certainly can affect his performance as a jurist.

    I also think it’s high time that we engage in a dialogue, at the national level, about domestic violence. People need to understand that it happens within all financial, cultural and racial communities.

    Finally, I for one would love to hear from our nation’s ‘leaders’ on this issue — never mind watching many of them ‘step in it’ in the process.


  11. RGK,
    That’s my point, actually. I get the feeling impeachment is a political equivalent of a nuclear weapon. It leaves nothing but scorched earth in its wake, and tends to cause all sorts of nasty backlash. Also, everyone sits around and talks about it, but tries like hell to never use it.

  12. Perhaps because of he goes the way Judge Kopf suggests, he will still get paid for life, without having to do any work.

  13. Absolutely agree with our comments about the “mystery judge”. I am proud and thankful that I had the good fortune to spend a semester in a trial advocacy class under his guidance. Not many like him . . . .

  14. SLS,

    Impeachment, properly understood, is a politcal act in the best sense of the word “political.” My fear is that the raw partisanship that dominates the House could result in the wrongful impeachment of federal judges becoming more frequent. The precedents of the Senate seem to restrict guilty verdicts on articles of impeachment to actions taken by a judge in the judge’s judicial capacity or role. If relied upon, those precedents cabin the universe of behavior that is impeachable. The farther you get into the private behavior of judges, disconnected from their public behavior as judges, the more likely it is, in my judgment, that partisan politcal motivations will dominate and good judges will become targets for impeachment.

    In short, you have hit the nail on the head. That is: “[I]mpeachment [of federal judges] is [the] political equivalent of a nuclear weapon,” and it ought to be used sparingly because the downside–the intimidation of the good federal judges–will leave the “earth scorched.”

    All the best.


  15. Judge:
    In the entire history of the Republic only 15 federal judges have been impeached, and only 8 have been subsequently convicted. This implies that the impeachment process is a rather unwieldy device by which to deal with the misbehavior of federal judges. Here is an alternative suggestion: http://www.yalelawjournal.org/article/how-to-remove-a-federal-judge. The article posits that Congress, pursuant to its authority under the Necessary and Proper Clause, may establish a mechanism by which to determine whether a federal judge has forfeited his or her office through misbehavior.

  16. I agree with your comments judge. In this day and age of hyper partisan politics, the last thing we need is to open the door to willy-nilly impeachments. However, I dont agree that this was “private” conduct just because this was his wife.

    On a separate note, I am not at all a fan of Judge Fuller. Some of his rulings and actions in the Gov. Don Siegelman case were questionable and really hurt people’s confidence in the impartiality of the judiciary. (In short, Judge Fuller use to be an old DA and while Governor, Don Siegelman, had an investigation opened (or requested an investigation) into Fuller’s activities before Fuller became a federal judge. When Siegelman was indicted on RICO, obstruction of justice and bribery charges Judge Fuller refused to recuse himself. At Siegelman’s sentencing, Judge Fuller even refused to continue his bail to allow him to self-report to prison even though Siegelman was not a flight risk. This was harsh and uncalled for. Siegelman was handcuffed and shackled in the courtroom and led away to prison.)

    In any event, once you open the door to judge impeachments in this day and age, it is more likely than not to become a highly politicized affair that will lead to more problems.

    Your solution seems to be the most practical solution of all so I agree.

  17. I’m afraid I don’t see why the fact that the judge’s conduct was private argues against impeachment. If he regularly used marijuana privately (while publicly sentencing dealers of the drug to the draconian punishments federal law provides), would that be impeachable under your standards? If he manufactured meth, but only in private for his personal use? If he raped little girls, while always taking care to do so privately rather than in open court or his chambers? I would not fear for the republic if any of these were deemed to be impeachable offenses. Similarly, if in fact Judge Fuller pulled his wife to the ground and kicked her, then drug her around the room and hit her several times in the mouth because she confronted him over an alleged affair with a law clerk, as has been reported, I have trouble seeing why impeachment should be off the table.

    And by the way, if it is true that this crime arose from an affair with a law clerk, is it truly “private, and…unconnected to the performance of his judicial duties”? If you represented a plaintiff in a sexual harassment lawsuit, would you have confidence in the impartiality of a judge whose response to being confronted with the impropriety of a sexual relationship with an employee was to beat the person confronting him?

    Others have already pointed out the apples-and-oranges quality of the analogy to the distinguished jurist guilty of negligent vehicular homicide. Although the analogy is strained, I understood its point to be that no one would think impeachment should be considered for the elderly judge, and that permitting impeachment of Fuller would place us on a slippery slope toward his impeachment as well. Two thoughts: First, 15 judges impeached, with 8 convicted, over more than 200 years suggests that we are on pretty level ground with very good traction. If impeachment of Fuller led us down this not-so-slippery slope to a point where all crimes of violence committed by federal judges were considered high crimes or misdemeanors that fell below the standard of good behavior required of Article III judges, I could live with that. Second, although I personally would not vote to impeach a half-blind, deaf, elderly judge whose poor judgment led to the reckless decision to drive, and thus take another man’s life, it was in fact a criminal act reflecting on his judgment that cost a man his life. I have trouble believing that impeachment of Fuller would lead to impeachment of the distinguished jurist, but if it did, while impeachment would be sad for him and his friends and family, it would not be a tragedy for the nation. Just as you understand that the death penalty has, and will continue to result in the innocent being put to death in some small percentage of cases, and have willingly accepted that risk, I think the nation can accept the risk that some small percentage of good judges would be impeached by a standard that called for their removal when they were guilty of crimes.

  18. Robert,

    Thanks very much. Another person sent me the article.

    Maybe as Yale Law Journal proposes there is an alternative mechanism that could be crafted short of impeachment but (a) I don’t think the legal argument for it is very strong and (b) the liklihood of Congress enacting such a statutory framework anytime soon is small. In some ways, the arguments I have against impeaching Fuller become even stronger if the Yale idea were to come to fruition.

    All the best.


  19. Roger,

    You are a terrifically able advocate. I don’t have a strong rebuttal except to say that when it comes to impeachment of federal judges there is the potential for much mischief.

    Please forgive me for telling a war story but I think it is apt. It goes like this.

    The Nebraska Attorney General had gotten himself in hot water for self-dealing with a financial instution over which the State of Nebraska had regulatory authority. The institution failed, and lots of people lost lots of money. The AG, however, made a nice bit of change from the sweetheart deal he got from the instituion. I was hired to do the investigation of the AG and represent the Nebraska unicameral in the trial before the Nebraska Supreme Court if the body voted articles of impeachment.

    I advised the body not to impeach. The reasons are not important. Rather, I advised that the AG be formally reprimanded and that the matter be referred to the Nebraska Counsel on Discipline to determine whether the AG’s law license should be lifted. I prepared a detailed memorandum explaining myself.

    The day came for a vote. I was on the floor so the Senators could consult me. I sat under the overhang of the viewing gallery with two Senators. They told me that they were going to vote to impeach because that would afford the Attorney General the opportunity to defend himself. I was stunned. Obviously, the AG did not want to be impeached and he had expressed no desire to be impeached in order that he might find a forum for such defense. Moreover, the referral that I proposed to the Counsel on Discipline would have given the AG the opportunity to defend himself. I reiterted those views to the two Senators, and they merely shrugged and voted to impeach.

    The body voted to impeach. I had 10 days to prepare under the Constitution. I was able to convince a majority of the Supreme Court that the AG should be impeached on one article, but I lost the case. The Nebraska Constitution required a super-majority of the Supreme Court, and not merely a majority. The one precedent on impeachment from the turn of the century also required that the impeachment be treated as a criminal matter. I could not call the AG as a witness, yet I was obligated to prove his guilt beyond a reasonable doubt. The end result was horrible. A majority of the Supreme Court thought that he should be impeached, but he remained in office. (I will spare you a description of the subsequent events.) Just exactly what was the public to think of this weird state of affairs?

    My point: When the impeachment train gets rolling, you cannot depend upon politicians to think through the consequences. As a result, I am very timid when it comes to impeachments.

    All the best.


  20. I am more than casually surprised that this is even a serious discussion in a room with this much intellectual wattage. Congress was only entrusted with the power to impeach, and only in cases of “treason, bribery, and high crimes and misdemeanors.” But as opprobrious as Judge Fuller’s conduct was, it doesn’t come close to meeting that threshold.

    Madison’s notes on the debate at the Convention is related at http://law2.umkc.edu/faculty/projects/ftrials/impeach/constitution.html. Explaining the impeachment power to the people of New York, Alexander Hamilton writes in Federalist 65:

    A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

    “High crimes and misdemeanors” is a phrase taken from English law, covering these abuses of public trust. A governor-general of India was impeached for his brutal maladministration, and a body of precedent had been built along those lines. Therefore, while it was proper to impeach Justice Chase for his corruptly partisan decisions on the bench, any man can beat his wife in a drunken stupor (and too many do!) or lie in a deposition (again, too many do!). Since the latter are not violations of the public trust (in 1789, crime was seen as a private matter), they are not constitutionally valid grounds for impeachment.

    If Congress were to pass a law empowering themselves to enforce the good behavior clause, it would be facially unconstitutional. This is another phrase borrowed from English law, and it was the prerogative of the King (or individual subjects) to enforce it. The Yale article cites Coke for the proposition that there were three grounds for forfeiture of good behavior tenure: abuse of office, non-use of office, and the willful refusal to exercise an office. Blackstone adds that “the oppression and tyrannical partiality of judges” constitutes grounds for impeachment, as well as being a violation of good behavior tenure. It is the sole province of Congress to impeach, and others are entitled to enforce the latter. But again, Judge Fuller’s odious actions are nowhere near this threshold.

    Finally, the court of King’s Bench had the inherent authority to remove lower court judges from the bench. It could be fairly argued that in creating one supreme court, the Framers bestowed this authority on that court, as an integral part of its general superintending authority. This is a practical solution for cases of judicial senility, but the Court has never tried to assert this power. The separation of powers doctrine implies that each branch has the power and duty to keep its own house in order. This remedy may be available for dealing with Judge Fuller, but it relies on the Constitution itself, as opposed to statutory law. I’m not sure that Congress has authority to bind the Supreme Court’s freedom of action, but many state courts have found that their power to issue any kind of discipline short of removal is inherent and plenary.

    The Judge’s concern over the misuse of impeachment is misplaced, as it requires a 2/3 majority of Senators to convict, and the only thing our politicians are any good at is counting votes. The misconduct would have to be pretty extreme to cut through the winds of faction. Even though a judge can be removed from office in England by a majority vote in both houses of Parliament, it was a rare occurrence even there. If anything, Congress is not aggressive enough in reining in the judiciary, and it would be remarkable if they suddenly started now.

    For good or ill, the federal judiciary is stuck with Judge Fuller. He’s in his mid-50s, and won’t be eligible for retirement until 2022. It is the price of having too much judicial independence.

    Forgive me for being garrulous, but this nonsense should be put to bed.

  21. I am not qualified to reply since I only saw the movie about Warren Hastings and as an elderly exprof I enjoyed the +nonsense.”

  22. The Absinthe-Minded Perfesser,

    First I love the moniker.

    Second, I am less concerned with whether a conviction would ensue. As you point out, the number of votes required is daunting. I am more concerned with forcing a judge to defend himself or herself and the destructive nature of the maelstrom that would ensue.

    Third, thanks for writing. I sincerely appreciate it.

    All the best.


  23. With respect, that’s a lot of verbiage, but where does it take us?

    Others noted that this involves injuries done to society itself. As on link provided in the main article here to provide information on the case:

    “And based on his behavior and his current use of the judicial system, we can’t trust Mark Fuller.”

    If the public “can’t trust” him, a basic violation of the public trust is involved. The judge here thinks he shouldn’t try cases. If so, why not the power to impeach? The judge is clear — he doesn’t trust Congress. OTOH, as was noted, there have been few impeachments overall of judges. The fear seems overblown.

    The appeal to what was seen as a violation of a private trust in 1789 is originalism run riot as applied. We have to apply the test TODAY. And, the strict test you provide very well probably would call into question numerous judicial impeachments (the numbers are somewhat skewered — many judges resigned to avoid impeachment — one casebook by David O’Brien cited something like fifty.

    The practice is “political” and rests on what our representatives reasonably find a high crime or misdemeanor (a term that is not purely political, btw — certain wrongs related to the slave trade were in early U.S. law held to be “high misdemeanors”) under current community standards.

  24. Judge Kopf: “I am more concerned with forcing a judge to defend himself or herself.”

    A written opinion IS a defense of a judge’s actions. When it is apparent from written opinions that a judge is not honoring the oath of office, it is the duty of Congress to remove that judge from office, as it tried to in the case of Justice Chase. The judge who consistently abuses the power of the office far is more dangerous than some idiot who beats his wife in a drunken stupor, and if the judiciary cannot control itself, it falls upon the men and women of Congress to act. Spectacle or not, it has to be done, and it probably isn’t done often enough.

    I would love to see the spectacle of a district court judge explaining why he can ignore twenty Supreme Court precedents in a single case, and if that judge were shown the door, it might induce other judges to exercise more care in making their decisions. I suspect that a trial of that nature would yield long-term benefits for the reputation of the judiciary, as the failure of our courts to transcend the bounds of partisanship tarnishes their reputation as honest arbiters. Accountability benefits everyone.

    It seems that you are also concerned with the lack of due process in an impeachment proceeding. Professor Berger pointed this problem out in his seminal work on impeachment, arguing that judges in 18th century England preferred having the good behavior standard applied to them, as it afforded them the protections of a trial. Parliament could remove a judge by simple majority vote for any reason, which made a mockery of good behavior tenure. The only problem I see is that you can’t fix this without altering the Constitution.

    The ultimate firebrake here is that impeachment is time-consuming, and the chance of conviction in most cases is zero. I could pick twenty judges who could be impeached by the end of the day (and write up articles by the end of the month) under the Justice Chase impeachment standard, but there is only so much “courtroom time” available.

  25. Joe, your point is certainly well-taken with respect to inconsistencies in the standard for impeachment. The first impeachment was of Pickering, who reportedly became insane.

    In England, when a judge is mentally infirm (this was also the case with respect to Justice Douglas), the problem was dealt with by King’s Bench under its inherent superintending authority. Congress had to torture the rules to get to Pickering (who obliged by not participating), when it may have been better for his colleagues to address it. Another example was Justice Rehnquist’s decade-long addiction to pain pills, which was simply kept secret.

    The all-purpose objection to your proposed abandonment of originalism is Scalia’s “you can’t beat something with nothing.” You and I may well agree that the system of judicial discipline is antiquated and inadequate, but by what authority do we re-write it ad hoc? I actually have more trust in Mark Fuller than I do judges who teach new colleagues how to “get rid of” civil rights cases, or openly defy precedent to get a result they want. That was what impeachment was intended to address.

    The problem with drawing conclusions from the Porteous, Nottingham, and Kent resignations (by way of example) is that we don’t know all the facts. If a judge took a bribe, the Feds could confront that judge and give him a chance to resign without having to face criminal prosecution.

    Joe: “The judge is clear — he doesn’t trust Congress.”

    But he has to. I can think of times when I’d prefer having the option of having my grievance heard by a dozen of my peers, bypassing judges altogether. But our system doesn’t grant that luxury. Live by the sword of the Constitution, and die by it too.

  26. As a non-lawyer-type I am curious. With only 15 judicial impeachments in the Republic’s history, why are you so fearful of ”the slippery slope?” The descriptions of the 15 impeachments do not seem to be
    for superficial or ‘political’ reasons. Your comment ”Impeachment poses risk to good judges”‘ only applies to crimes/misdemeanors and not to partisan non-crimes, no? Obviously, I am confused.

    The other observation I would make is that there is a large amount of avoiding the rule-of-law inside the beltway and inside Congress on both sides so do you really think impeachment for violent domestic abuse would even be entertained???? Think about a divided electorate in an election year over domestic violence???? Not a snowball’s chance in hell! Judge Fuller’s salary is safe as is,
    probably, the Judge. My personal opinion–partisanship is only alluded to in public. Cronyism rules–
    probably even among judges. Cynic? Me? You betcha!!!

  27. The facts demand cynicism. Congress doesn’t have the time to discipline our judges, and federal judges themselves don’t have the will.

    If you think I overstate the case, I recommend that you consider http://judicial-discipline-reform.org/OL/DrRCordero-Honest_Jud_Advocates.pdf. The author is no intellectual lightweight, boasting a Ph.D. from Cambridge, a law degree from Michigan, and a master’s from Le Sorbonne. Dr. Cordero reports that out of ~10,000 complaints filed over a 12-year period, only eight resulted in any discipline at all. In essence, federal judges found their colleagues purer than Ivory Snow.

    Even if we assume that half the complaints are from people who hear voices, that’s a whole lot of cronyism going on. (As Gomer Pyle might say, “Surprise, surprise!”)

    I can predict what will happen with Fuller. The investigation process will drag out long enough for everyone to forget about it, and he will receive a private censure, at worst. But he is not the train wreck we might actually see.

    Now that I think about it, what the Judge fears IS possible. Work this through with me. Tactically, it is brilliant.

    Someone in the Republican Party like Sensenbrenner (who has been trying to impose discipline on the courts for years) could target any liberal judge for biased decisions, and start fishing. Judges routinely ignore precedent when it gets in the way, and some of the opinions are unforgivably sloppy. If they get a majority in the Senate, they would control its agenda, and could impeach. That will play to their base, which sees the bench as being infested by liberal socialist activist judges (actually, it’s about 50-50). Suddenly, it rains cash and checks.

    The proposed impeachment would be political (everything the Republicans do these days is!), but you don’t have to look all that hard to find a federal judge who is obviously guilty of activism. The Chase impeachment is precedent, and the right target wouldn’t stand a chance. The vote would be along party lines, but the Dems would have to defend a lot of odious behavior. They don’t have to convict to win, as the real prize is Justice Ginsburg’s seat.

    Set the precedent, and everybody goes head-hunting. Armageddon.

  28. Anon.,

    If you knew him, I doubt very seriously that you would take the position that he should be impeached. I realize that the preceding sentence is unfair to you since I did not, and will not, identify Judge A. I apologize for putting you in an awkward position.

    All the best.


  29. My comment that Judge A should have been impeached has nothing to do (and should not have anything to do) with how wonderful a man/woman and/or judge he/she may have been. The judge’s actions, in my opinion, warranted impeachment. I realize that I am in the distinct minority on this, but in my opinion, if a judge commits a crime (as opposed to a civil infraction such as a traffic ticket), he/she should be removed from the bench and if he/she doesn’t have enough respect for his/her office to go voluntarily, than impeachment should be initiated. Second chances, the totality of the circumstances, the offender’s history, and all that are great for everybody else, but judicial officers should be held to a far higher standard.

  30. Dear Perfesser:

    You have correctly stated the standard for impeachment of executive officials, but a different one applies to judges. They are subject to removal if they violate the “good behavior” standard of Article III. The failed impeachment trial of Samuel Chase is regarded as the precedent that deters Congress from pursuing impeachment for “bad” decisions. That did not, however, quell the rumbling about impeaching Judge Harold Baer two decades ago when he issued a decision suppressing the seizure of a sizable quantity of drugs. (That controversy fizzled when the late Judge Baer reversed himself on a motion for reconsideration, based on “new” fact presented to him.)

    If Judge Fuller does not go quietly into that good night, he should be impeached, tried, and removed. I harken back to Judge Kopf’s initial post, when he criticized Judge Fuller’s judgment and the ability of the public to continue to have confidence in it. The judge and I respectfully disagree whether that should be enough to turn the heavy guns of impeachment on a judge, but I think the decision must factor in society’s expectations. Right now, those expectations tilt strongly in one direction on spousal abuse. There is a widely perception that a man who assaults his wife has misogyny issues. Judge Fuller, were he to step out on the bench again, would do so under the cloud created by such perceptions. I would contrast Judge Cebull, in Montana, who took full retirement in light of the revelation of emails that cast him in light that suggested that he might be not be fair to minorities. About twenty-five years ago, prejudiced remarks to a newspaper reporter by a state court judge in Jacksonville rightly chased him from the bench. It doesn’t matter whether the individuals involved actually harbor ill-will toward a particular group; to be seen as holding such views ends their effectiveness as judges. This also distinguishes Judge A, who’s error in judgment does not suggest any potential to be less than fair to any group of parties or litigants (although, in recognition of his own circumstances, he should not have heard any cases involving the agencies supervising his deferred adjudication or involved in prosecuting his case until he successfully completed his community service and diversion program).

%d bloggers like this: