Opinion » Viewpoint


Judges may not be without sin, but few stones are cast their way.



Something very rare occurred in Washington, D.C., this past week, and it passed substantially under the radar because of the media's obsession du jour, which, this time, was leaks by geeks (not to mention bonanzas for billionaires). No, I don't mean Republicans decided to stop screwing the American public.Hey, I said very rare, not inconceivable.

What I mean is that a federal official, one of very few (other than presidents) who can be constitutionally removed from office only by impeachment, was, in fact, removed from office by impeachment. This was the first time that's happened in more than 20 years, and in the entire history of the republic, going back to 1789, only the eighth time. It was a significant milestone for our constitutional system, proving, as sunshine patriots love to say, that our system works. The problem they overlook in saying that is that, in this respect, our system doesn't work often enough.

The official who was removed was G. Thomas Porteous Jr., who, until last week, was a federal judge in the Eastern District of Louisiana. He was found guilty of a laundry list of offenses.

Federal district judges (not magistrates, bankruptcy judges, or administrative law judges) are given lifetime tenure as long as they exhibit "good behavior" and, like presidents, can only be removed from office by the impeachment process — meaning presentment of articles of impeachment by the House of Representatives and trial on those charges by the U.S. Senate for "high crimes and misdemeanors." You remember that phrase, don't you? In a president's case, it means getting a BJ in the Oval Office, while for everyone else, it apparently means murdering Mother Teresa in front of 30 bishops.

Of the thousands of federal judges who have served in that capacity in the last 220 years, only eight have been removed from office because of their conduct or behavior. In addition to those eight, there have been 13 who have been impeached by the House but, for one reason or another (acquittal or voluntary resignation —- if you can call resigning in the face of an impeachment trial voluntary), weren't removed by the Senate.

The Founding Fathers made federal judges lifetime appointees supposedly to remove them from the influences of politics and public pressure. But we've learned that being appointed by the leader of one of the two major political parties and confirmed in a frequently brutal political process doesn't assure imperviousness to political influence. If nothing else did so, the Supreme Court's decision in Bush v. Gore taught us that.

Don't get me wrong: I have the utmost respect for federal judges and have had the privilege of practicing before many distinguished ones all over the country, including one of the most famous in his day,"Maximum John" Sirica, who took on President Nixon in a well-known episode of the Watergate drama. My boss when I worked for the federal government, Stanley Sporkin, went on to a distinguished career on the federal bench, coincidentally, the same one as Judge Sirica sat on.

One of my all-time favorites was Robert McRae, the now-deceased, curmudgeonly judge who is most famous for desegregating the Memphis city schools in 1972, for whom I have great affection in spite of the fact that he was fond of asking lawyers (including this one), when they made what he thought was a ridiculous legal argument, what law school they had gone to.

I'm grateful for the federal judicial system. It is one of the most comprehensive, well-developed, readily-available sources of jurisprudence we have in this country, and believe me, as someone who's spent many an hour in law libraries leafing through dusty tomes trying to find good, albeit occasionally ancient, Tennessee law, I appreciate that aspect of the federal system. Its judges, appointed and confirmed as they are by a rigorous, if sometimes too political process, represent some of the finest examples of their discipline. They are not, however, infallible.

I don't favor tinkering with the Constitution, for any reason, so I wouldn't want to see lifetime tenure eliminated. I wouldn't mind it, though, if in the next 220 years impeachment of federal judges wasn't quite as rare as it's been in the last 220.

Memphis attorney Marty Aussenberg writes the "Gadfly" column for memphisflyer.com.

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