Professor Keith Whittington Examines Judicial Impeachment

Keith Whittington, the David Boies Professor of Law, has contributed a chapter to a new book examining the democratic concept of the separation of powers.

Whittington’s chapter appears in “Beyond Checks and Balances: The Political Purpose of the Separation of Powers,” published by the University of Pennsylvania Press. The book — edited by political scientists Connor Ewing, Benjamin Kleinerman, and Charles Zug — challenges the idea that the separation of powers is merely legal doctrine and instead frames the concept as “a political arrangement designed to pursue the common democratic good.” 

Whittington’s chapter, “When Is It Reasonable to Impeach a Judge?,” appears in the second half of the book, which focuses on how statement-of-powers doctrine is applied in the law. Whittington examines the structural and textual considerations that make impeaching a president different from impeaching a judge, and considers cases in which it may be reasonable or unreasonable, from a legal and constitutional standpoint, to attempt to remove a judge from office.

Whittington argues that although judges aren’t subject to the same accountability as presidents, who serve fixed terms and can be held accountable by citizens at regular election intervals, it is important to maintain a high bar for triggering judicial impeachment to preserve judicial independence. “Easing the path to the impeachment of judges,” Whittington argues, “might corrode judicial independence more broadly.”

If it becomes normal to use the impeachment power in a “narrowly partisan” manner, he adds, “the impeachment power would tend to be not only short-sighted but also ineffective.” Building cross-party coalitions to remove a government official is a necessary, constitutional constraint on the use of impeachment. 

While some impeachment cases might be clear-cut — in cases of corruption, for instance — others fall into grey areas worth considering carefully, Whittington writes. Whittington urges partisans on both sides to reserve the impeachment power for cases in which they can carefully investigate and reveal the underlying facts of the alleged offenses. “Pursuing judicial impeachments in cases of reasonable legal disagreements goes down a path of escalating political conflict that increasingly refuses to recognize the legitimacy of the opposition.”

Whittington is an expert on American constitutional history, constitutional theory, and judicial politics. He has written several books, including “You Can't Teach That!: The Battle Over University Classrooms,” “Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present),” and “The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool,” among others. He is also the faculty director of Yale Law School’s Center for Academic Freedom and Free Speech (CAFFS).