Impeachment: The Case Against

Unfortunately, the Constitution's impeachment clause only works for criminals, not the grossly incompetent.

January 30, 2007 | This article appeared in the February 12, 2007 edition of The Nation.

It would be wonderful to evict George W. Bush--quite possibly the worst President in our entire history--from the White House. Thus one can readily understand the temptation to talk about impeaching him. But we should recognize that this conversation is triggered not only by Bush's own performance as President but also, and perhaps more important, by one of the greatest defects of the Constitution, the impeachment clause. Thanks to the Founders, we were given a Constitution that perversely makes us "better off" with a criminal in the White House instead of someone who is "merely" grotesquely incompetent. The reason is that the Constitution provides us with a language to get rid of a criminal President, but it provides us no language, or process, for terminating the tenure of an incompetent one. Unfortunately, this was a deliberate decision by the Framers, who rejected an altogether sensible proposal to make "maladministration" an impeachable offense for fear that this would give Congress too much power.

About the Author

Sanford Levinson

Sanford Levinson is professor of law at the University of Texas.

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Return of Legal Realism (Election 2000 and The Supreme Court, Law, The Courts, Politics, Society)

The most enduring debate among twentieth-century legal analysts has been that between "legal realists" and those who believe in a reasonably strong version of "the rule of law." Though legal realism was often caricatured as reducing law to what the judge ate for breakfast, what it was really about was attacking the notion of the majestic impersonality of the judge, who was above politics. As Felix Frankfurter once put it, "as judges we are neither Jew nor Gentile, neither Catholic nor agnostic [and, presumably, neither Democrat nor Republican]. We owe equal attachment to the Constitution and are equally bound by our judicial obligations." Such claims were derided by realists like Yale law professor Fred Rodell, who viewed judges as no more than politicians in robes using legalistic mumbo-jumbo to write their politics into law. The argument has proceeded apace into the twenty-first century.

Almost everyone has accepted what might be termed a "soft" legal realism, one articulated by Frankfurter himself when he wrote in 1930 that "the controlling conceptions of the justices are their 'idealized political pictures' of the existing social order." Thus it is a commonplace to refer to "conservative" and "liberal" wings of the Supreme Court as a shorthand reference to two quite different pictures painted by the two sides in cases involving race relations, the autonomy of states, the death penalty and the like. Though judges are "political," the politics are "high" rather than "low"; that is, decisions are based on ideology rather than a simple desire to help out one's political friends in the short run.

Thus the legal attack on racial gerrymandering led by "conservative" judges probably favors the interests of the Democratic Party, while its defense by "liberal" judges probably enhances the power of the Republican Party (because it "packs" overwhelmingly Democratic black voters into relatively few Congressional districts). Ideology seems to be a better explanation of the two positions than a desire to maximize the interests of one or the other party.

The Court's decision in Bush v. Gore, however, seems an exercise in low rather than high politics. How can one take seriously the majority's claims that their award of the presidency to Bush is based on their deep concern for safeguarding the fundamental values of equality? This majority has been infamous in recent years for relentlessly defending states' rights against the invocation of national legal or constitutional norms. Bush v. Gore is all too easily explainable as the decision by five conservative Republicans--at least two of whom are eager to retire and be replaced by Republicans nominated by a Republican President--to assure the triumph of a fellow Republican who might not become President if Florida were left to its own legal process.

Of course, a consistent realist might point to tension between the generally nationalist, equality-protecting positions taken by the dissenters and their esteem in Bush v. Gore for state autonomy and, concomitantly, for the different standards being applied in various county recounts. It is decidedly "unrealist" to denounce one group of judges as behaving politically while praising another for simply following the "rule of law." Rodell or any other hard-core realist would deride any praise of the Florida Supreme Court for its wisdom in construing the Florida statutes. Those judges, too, could easily be depicted as Democratic partisans manipulating the law to serve their political favorite, Al Gore.

Few Americans, however, and almost no law professors, embrace such a complete legal realism, even if they rightly accept its "softer," more ideologically oriented version. Full-scale realism leaves one without the ability to argue that legal arguments can be assessed by their conformity to norms that can be invoked, by judges and others, to discipline the vagaries of political choice. But a strong critique of the Court's opinion that presupposes that it indeed violated basic norms and "descended" into raw politics would violate the premise of an unabashedly "political" realism.

That "hard" realism has nihilistic overtones might explain why we resist it so strongly, but it does not constitute a genuine refutation of the position. It is a sign of the truly unprecedented nature of Bush v. Gore that many liberal law professors, who have spent much of their career asserting the reality of the rule of law (and of the Supreme Court as what Ronald Dworkin terms "the forum of principle," even if they sometimes disagree with particular principles enunciated by the Court), find themselves wondering if they can continue to do so. Bush v. Gore may have superficially resolved a short-run political crisis, but it has triggered the deepest intellectual crisis--at least for people who profess to take the law seriously--in decades.

Sanford Levinson

Only because of the Constitution are serious progressives engaging in an entirely fruitless campaign to impeach Bush by describing him as a criminal. It is fruitless for two quite different reasons. The first, and more practical, is that there is simply no possibility that Bush will actually be removed from office in the twenty-four months that unfortunately remain to him. One might well contemplate impeachment if there were a possibility of its being successful. But the House Democratic leadership has rejected the idea, not least because there is no possibility that the constitutionally required two-thirds of a nearly evenly divided Senate would vote to convict an impeached George W. Bush. Thus, advocates of impeachment are in effect supporting a strategy doomed not only to fail but also to be perceived by most of the country as a dangerous distraction from the pressing problems facing the country.

House Republicans in 1998, who knew for certain that Bill Clinton would never be convicted by the Senate, could behave with reckless abandon in part because much of the country did not perceive itself as facing grave problems. Democrats today do not have that luxury.

But there is a second reason to be wary of the impeachment conversation: It inevitably becomes a highly legalistic one about exactly what constitutes "high crimes and misdemeanors." It is not enough that the President be a criminal; he must be a criminal of a certain gravity. If there is anything the country needs less at this point than a self-defeating political strategy, it is the further domination of public debate by lawyers trading jargon-ridden charges and countercharges about the criminal liability of the President. Almost no one was genuinely edified by the legal debate that occurred in 1998. Most of the public believed that most of the lawyers--or at least those on "the other side"--who participated in that debate were motivated by partisan political considerations. The same would be true today.

Although I admire some of those calling for impeachment, one should recognize that some of their ostensibly legal claims are all too dubious. Consider the charge that Bush lied to the country during the run-up to the war, which may well be true. If lying to the public about matters of grave importance were an impeachable offense, however, almost no President--including, for starters, Franklin Roosevelt and his deceptions regarding lend-lease--would survive. It is even more difficult to construct criminality out of Bush's reckless disregard of the consequences of Katrina. It is not, however, at all difficult to accuse him of maladministration and disqualifying incompetence.

American politics would be infinitely better if we could avoid legalistic mumbo-jumbo and accusations of criminality and cut to what is surely the central reality: The American people have exhibited a fundamental loss of confidence in a wartime President/Commander in Chief. In most political systems around the world, the response to such a stinging rebuke would be resignation or removal. But we are trapped in a constitutional iron cage devised by eighteenth-century Framers who, however wise, had no conception of the role the presidency would come to play in American (and world) politics. The US President should be treated as what Ross Perot aptly called an "employee" of the American people, vulnerable to being fired for gross incompetence in office. Instead, he is given the prerogatives of a feudal lord of the manor who owns the White House as his personal property until the end of the presidential term, with almost dictatorial power over decisions of foreign and military policy.

Far better than a politically pointless--and almost certainly counterproductive--campaign to impeach George W. Bush would be the initiation of a serious discussion of the extent to which we are disserved, in 2007, by a political system devised for an entirely different era. However divided we might be, most Americans might be persuaded that we would all be better off if future Presidents could face the possibility of a Congressional vote of "no confidence" that would trigger eviction from the White House. Perhaps that discussion, too, would be doomed, given both the preposterous reverence that Americans have for the Constitution and the near-impossibility of constitutional amendment because of the hurdles placed by Article V in the way of amendment. But at least such a discussion would focus on the most important feature of the Bush Administration--its gross incompetence--in a language that could readily be understood by any attentive citizen rather than quickly degenerate into an arcane (and acrimonious) discussion among constitutional lawyers.

Moreover, and even more important, whereas an attempted impeachment would be guaranteed to be maximally divisive, this might be the perfect time to hold a serious national conversation about whether we should have an alternative to the cumbersome impeachment process to remove an incompetent President. The reason, paradoxically, is that because of our very political divisions, it is impossible to know who will be President in 2009. The stars are aligned for a truly bipartisan discussion, among serious Democrats and Republicans alike, over the extent to which we are well served by the eighteenth-century Constitution, since members of both parties are behind a "veil of ignorance" as to who would benefit from any changes. Even the most partisan among them have every incentive to think of the national interest, since it is impossible to discern what the party's interest will turn out to be.

Perhaps if we took the citizenry seriously and engaged them in an adult conversation about the dysfunctionality generated by the present Constitution, we might be able to escape its iron cage in the future--even if not, alas, before the expiration of Bush's term of office in January 2009.

Sanford Levinson

January 30, 2007 | This article appeared in the February 12, 2007 edition of The Nation.