Protecting the Judiciary – Analysis of Judicial Impeachment

The Hon. Paul W. Grimm (ret.) recently published Why Impeachment Threats Against Judges Will Fail: Legal Insight (Bloomberg Mar. 6, 2025).  Judge Grimm wrote:

In the entire history of the US, only 21 civil officers have faced impeachment: three presidents (none convicted), one senator (expelled, with his charges dismissed), one secretary of war (not convicted), one secretary of Homeland Security (charges dismissed as unconstitutional), and 15 federal judges (eight of whom were convicted and removed from office, four found not guilty, and three resigned after being impeached but before their trial in the Senate).

The article points out that federal judges hold office “during good behavior,” and that history illuminates the meaning of that phrase.  Judge Grimm lists the types of misconduct that have warranted judicial impeachment and concludes:

It doesn’t require Napoleonic insight to see that to justify impeachment of a federal judge, criminal or equally egregious behavior is required. Disagreement with the rulings of a federal judge has never been a justified basis for the impeachment and removal from office. [Emphasis added].

Judge Grimm adds that all of the targeted judges “performed their constitutionally required duty to decide a case that had been assigned to them in which the plaintiffs had asserted that a particular executive order or policy violated their constitutional rights or a federal statute.” He explained that:

Far from being “activist” or “radical,” these judges were acting as judicial first responders to serious lawsuits challenging administration policies as being unconstitutional or otherwise illegal. Disagreement with their rulings is a legitimate ground for appeal, but not for impeachment. And threats to initiate impeachment actions against them for conduct that is so clearly dissimilar from all the cases in the history of our country in which judges have been convicted and removed from office must be condemned for what they are—transparent efforts to intimidate judges and deter them from performing their duties.

Judge Grimm concludes: “Fortunately, these threats will fail, and the dedicated men and women who make up the federal judiciary will continue to selflessly protect our rights and liberties. For that, we should be immensely grateful.”

Judge Grimm has spoken out before.  Letter from Paul W. Grimm Regarding Threats and Attacks on Judges (Feb. 10, 2025); The Judiciary Is Under Attack. Lawyers Have a Duty to Defend It (Bloomberg Law Oct. 24, 2023).

David Voreacos and Madlin Mekelburg reported that  Veteran US Judges Slap Back at GOP Calls for Impeachment (1) (Bloomberg Law Mar. 12, 2025):

Criticism is “part of the job,” said Judge Jeffrey Sutton, who was appointed by George W. Bush to the Sixth Circuit Court of Appeals in 2003 and has been the chair of the US Judicial Conference since 2021. “But I do think when it gets to the level of a threat, it really is about attacking judicial independence, and that’s just not good for the system or the country.”

The article reports that:

For many judges, the calls for impeachment add to an increasingly hostile environment for the judiciary. In the past five years, US marshals have investigated more than 1,000 “serious threats” against judges, with 50 arrests. A handful of judges have been physically attacked.

On Wednesday, police in Charleston, South Carolina, released a report showing the sister of Supreme Court Justice Amy Coney Barrett was the target of a bomb threat emailed on March 8. The email said the device would be triggered “as soon as the mailbox is next opened. Free Palestine!” Police did not recover a bomb.

Chief Justice John Roberts made security a focus of his 2024 year-end report, saying that judges are subject to wide-ranging attempts at intimidation from foreign and domestic actors.

The Hon. Richard Sullivan was quoted:

“Everybody should be taking this seriously, because our system of government is premised on three independent branches and a judiciary that can function independently, and that’s what makes it work….”

Further, the Hon. Esther Salas, whose son was killed and husband wounded by an angry litigant said:

“Whether you are threatening articles of impeachment for just doing our job, threatening to kill us for just doing our jobs, or actually coming to our homes and gunning our children down, as is the case with Daniel, those are all forms of intimidation and harassment and threats that weaken the constitutional fibers that have held this country together….”

Id.

Douglas Keith wrote Impeachment and Removal of Judges: An Explainer | Brennan Center for Justice (Feb. 12, 2025):

If legislators were to impeach judges for purely political reasons, they would be tossing aside a centuries-old understanding that if the impeachment power is used to punish judges for their rulings, it undermines the vital independence of the judicial branch…  [T]he impeachment power has historically been limited to cases of serious ethical or criminal misconduct.

Mr. Keith added:

Historical practice suggests a strong tradition against impeaching judges for their decisions. Chief Justice William Rehnquist, who wrote a book examining the history of judicial impeachment, found that early historical uses of the impeachment power established a norm that “judicial acts — their rulings from the bench — would not be a basis for removal from office by impeachment and conviction.”

He explained:

According to Rehnquist, the attempted removal of Supreme Court Justice Samuel Chase in 1804 was, in particular, “enormously important in securing the kind of judicial independence contemplated by” the Constitution. President Thomas Jefferson, a Democratic-Republican, encouraged the House to impeach Chase, a Federalist, after Chase openly criticized the president and his policies to a Baltimore grand jury. In addition to the charge that his partisan statements undermined the judiciary, the charges against Chase ultimately included inflated allegations of misconduct in several trials. The House impeached Chase in 1804, but the following year, the Senate declined to convict, despite Jefferson’s party holding a supermajority. This failed impeachment helped set the bounds of the proper use of the impeachment power — including that judicial decisions should not be a basis for removing judges from the bench. [Emphasis added].

Accord  Impeachments of Federal Judges | Federal Judicial Center.  Mr. Keith wrote:

Despite this historical understanding, there have continued to be attempts to use the impeachment power for partisan reasons. In the heat of the 1996 presidential campaign, for example, both candidates — President Clinton and Sen. Bob Dole — attacked a sitting federal district court judge for ruling evidence inadmissible in a case against a drug courier and indicated they would support the judge’s removal. Four sitting appeals court judges joined together in a remarkable statement to condemn the political attacks on Judge Harold Baer Jr., explaining that the Constitution does not “provide for resignation or impeachment whenever a judge makes a decision with which elected officials disagree.” [Emphasis added].

I have written a number of blogs on this topic.  They are listed in Protecting the Judiciary – Again – E-Discovery LLC (Feb. 28, 2025).  A review of the articles of impeachment shows that they are fact-free when compared with the judicial decisions. I wrote:

In each blog, I suggested that we look at the facts.  As in the prior blogs, this is not about the merits or about politics – – it focuses on the effort to impeach a federal judge for issuing a decision in federal court interpreting federal law when the person seeking impeachment disagrees with the court’s decision. 

In each of the prior blogs, I wrote:

Maybe the Judges’ rulings are right.  Maybe not.  But, let’s assume they’re not correct.  There is a remedy for incorrect judicial decisions.  It’s called an appeal.  Not impeachment

When one reads the written decisions issued by the Judges, the only conclusion to draw is that impeachment efforts are misguided, at a minimum, and inconsistent with the Rule of Law.

Maryland Circuit Court Judge Andrew Wilkinson was recently killed in his driveway.  The Maryland State Bar Association has spoken out against unfair attacks on the Maryland judiciary. Protecting the Judiciary (Jan. 30, 2025); Maryland Bar Association Promotes Increased Judicial Security (Aug. 10, 2024).  The Maryland legislature has acted. Maryland Bills to Protect Judges and Their Children (Feb. 23, 2024).

The problem, however, is nationwide and at all levels.  Threats Against the Colorado Supreme Court Must Be Called Out (Dec. 23, 2023).

The American Bar Association has also spoken out. The ABA rejects efforts to undermine the courts and the legal profession (Mar. 3, 2025);  American Bar Association Statement on Threats Against the Judiciary (Apr. 8, 2024). The ABA wrote:

There have now been statements by officials criticizing judges for not following the will of the people. Judges swear oaths to follow the law, not public opinion polling or political chatter or what someone contends is the will of the people. The chief justice of the U.S. Supreme Court wrote in his 2024 Year End Report on the Federal Judiciary, “[w]ithin the past year we have also seen the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment. Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed.”

We may disagree with interpretation of case law, but it is unacceptable to personally target judges just because we disagree with their ruling. We cannot have a judicial system where the government seeks to remove judges simply because they do not rule as the government desires.

Well said, Chief Justice Roberts, former Chief Justice Rehnquist, Judge Grimm, Judge Sutton, Judge Baer, Judge Sullivan, ABA, MSBA, and many others.