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Hastings Constitutional Law Quarterly

Abstract

Partisan impeachment-in which one branch of government attacks anotherhas played a central role in three of the four great confrontations between or among branches of the federal government: (1) the struggle, in the first decade of the nineteenth century, between the Federalist-dominated judiciary on one hand and the Jeffersonian administration and Congress on the other; (2) the confrontation from 1865 to 1869 over Reconstruction between President Andrew Johnson and a Congress run by Radical Republicans; (3) the conflict that reached a peak in 1937 between the administration of Franklin D. Roosevelt and a Supreme Court that repeatedly struck down New Deal legislation as unconstitutional (in which impeachment did not play a role); and (4) the struggle, which began in 1968 and has continued intermittently since then in and between the two elected branches on several issues but most particularly over the composition of the Supreme Court. In the last of these, the Republican Party has used impeachment and threatened impeachment as a weapon beginning with the campaign to oust Justice Fortas in 1969 and the subsequent campaigns against Justice Douglas and President Clinton. Until they lost their Congressional majorities in 2006, Republicans continued to threaten other people with impeachment.

This article compares the role of impeachment in each of these confrontations as well as other, nonpartisan uses of impeachment. The article explains how, from the first impeachment in 1797 through the trial of Andrew Johnson in 1868, impeachments were based on reasoning and rhetoric very much like those expressed and acted upon by Republicans since the Fortas episode. The article also explains how, after 1868, a parallel tradition of nonpartisan and bipartisan impeachment evolved through mundane procedures for removing corrupt judges. The article concludes that, despite its superficial strategic appeal, partisan political impeachment for the most part fails to produce the results its advocates seek.

Some aspects of the Clinton impeachment have not commonly been understood. For example, the procedural safeguards observed by the House Judiciary Committee and the special prosecutors to prevent partisanship in the impeachment of President Nixon were ignored during the Clinton impeachment. The evidence of a right-wing campaign to destroy the Clinton presidencybeginning almost immediately after his inauguration in 1993 and culminating in impeachment in 1998-is abundant, much of it becoming available only after Clinton left office. And the evidence that Justice Thomas committed perjury during his confirmation hearings appears to be as persuasive as the perjury case against Clinton.

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