Volume 35

Ethically Ignoring Impeachment Efforts: Historical Case Study of the Politics of the Impeachment Efforts of Justice Douglas

by Brett Bethune

“[A]n impeachable offense is whatever a majority of the House of Representatives considers it to be at a moment in history.” Then-Congressman Gerald Ford spoke these words on the floor of the House of Representatives in 1970 when debating whether the House should impeach Justice William O. Douglas over alleged ethical improprieties and improper judicial conduct. In 2017, Congresswoman Maxine Waters made a similar claim regarding President Trump that “[i]mpeachment is about whatever Congress says it is.” The statements of Representatives Ford and Waters offer frank assessments of the constitutional standard involving the impeachment of certain federal officials, such as Justices of the Supreme Court, and they reveal how flexible and broadly wielded the impeachment power can be.

It is not just politicians who have raised the issue of impeachment in the public debate. In fact, one of the most prominent impeachment campaigns against a Supreme Court Justice was sponsored by a private, right-wing organization called the John Birch Society. This movement targeted Chief Justice Earl Warren, and it reached such great popularity that the movement’s “Impeach Earl Warren” billboards were “ubiquitous” throughout the countryside during the late 1950s and the 1960s. More than a million Americans signed a petition calling for Warren’s removal. In the years following Chief Justice Warren’s (voluntary) retirement, impeachment of Supreme Court Justices remained a hot-button issue. Perhaps the most prominent judicial target of calls for impeachment since Warren was Justice William O. Douglas. As this Note will explore, Justice Douglas’s impeachment saga represents a
fascinating historical episode about the role of and motivations behind impeachment in political discourse. Many scholars have suggested that the efforts to impeach Justice Douglas were primarily driven by political considerations. However, this impeachment episode is particularly interesting to analyze through the lens of legal and judicial ethics because, notwithstanding some scholars’ contentions that the effort was politically motivated, the impeachment charges against Justice Douglas at least purported to rely on the American Bar Association’s (“ABA”) Canons of Judicial Ethics. Was the impeachment of Justice Douglas an example of government officials attempting to enforce the Canons of Judicial Ethics? Alternatively, was the impeachment effort an example of political actors weaponizing the Canons of Judicial Ethics to further political goals?
This Note seeks to answer these questions. First, it explores the allegations against Justice Douglas and identifies the extent to which these allegations actually recognized principles of judicial ethics. Second, this Note considers the political motivations lurking behind the impeachment efforts. Third, it evaluates
Justice Douglas’s response to the allegations, particularly from the viewpoint of judicial ethics. Finally, this paper proposes a new Model Rule of Judicial Conduct designed to insulate judges from allegations of political decision-making should they face charges of impeachment. This proposed rule is consistent with the theoretical underpinnings behind the importance of public confidence in the judiciary, which is a feature embodied in both the current Model Rules of Judicial Conduct, as well as the constitutional framework of our government. Given the flexible nature of impeachment, this new rule will provide former guidance for judges if and when impeachment campaigns are leveled against them.

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