Why Are Judges Under Attack?

Why is there a drumbeat of criticism focused against judges and the courts? Radicals see judges who enforce the Constitution and protect minority rights as a “problem” to be solved by criticism, intimidation and possibly impeachment.

It is unseemly, to say the least, to foster a climate that demonizes and trashes an entire branch of our federal government. It is also undemocratic. Critics of the independent judiciary who claim to seek vindication of democratic principles by substituting majority rule for judicial decisions ignore the framework of our constitutional democracy. American constitutional democracy does not mean that majorities decide every question. The court’s job is to ensure that everyone’s rights and protections are honored, which in practice means judges sometimes side with the underdog, the minority group, against the wishes of the majority. Judges rule based on the Constitution and other laws, not public opinion polls. Seen in this light, we can understand why judges who are doing their jobs properly will sometimes make decisions that are unpopular.

"A judge's judicial acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence, [since] judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."
- U.S. Supreme Court Chief Justice William Rehnquist, in the 2004 Year-End Report on the Federal Judiciary.

Politicians who don’t agree with a certain decision often threaten judges with censure or impeachment. But judges cannot be impeached for the decisions they make, only for their behavior on and off the bench. Just the threat, though, is chilling — and makes a powerful impression on a member of Congress’ constituency back home. Critics of the judiciary understand this, and use the threat of impeachment as a way to intimidate judges into making desired decisions.

Even if it seems that an impeachment conviction against a certain official is unlikely, impeachment should nevertheless be pursued. Why? Because just the process of impeachment serves as a deterrent. A judge, even if he knows that he is facing nothing more than a congressional hearing on his conduct, will usually become more restrained in order to avoid adding 'fuel to the fire' and thus giving more evidence to the critics calling for his removal."
- From a booklet widely circulated on Capitol Hill urging members of Congress to start impeachment proceedings against so-called "activist" judges.