Why the Constitution -- its words, its framework for government, and its patent principles such as separation of powers -- is so incomprehensible to the Senators that have proposed legislation adopting a code of judicial conduct for the judges of the Supreme Court is beyond my ken.
The sole arbiter of whether conduct constitutes an impeachable offense under the U.S. Constitution is a majority of the United States House of Representatives. Article I, section 2 of the Constitution provides, "The House of Representatives ... shall have the sole Power of Impeachment." In that body alone lies the power to impeach constitutional officers, including the President, his cabinet and judicial officers of the United States, including judges of the Supreme Court.
The Constitution does NOT provide a laundry list of conduct warranting impeachment. Article II provides only that impeachment shall be based on “treason, bribery, and other high crimes and misdemeanors.” Setting aside acts constituting treason or bribery, there is no constitutional guidance to the meaning of "other high crimes and misdemeanors." As a consequence, in a drunken soiree, if the House of Representatives decides that wearing a frilled robe, or speaking French during oral argument, or driving a Prius, constitute impeachable offenses then, frankly, that judgment alone is of constitutional significance and dimension. A majority of the House could discharge its entire responsibility in regard to any offense it decides is within the ambit of "other high crimes and misdemeanors," simply by voting in the affirmative on an Article of Impeachment so providing.
Deciding that judges of the Supreme Court -- whose wives have partisan political affiliations, whose off bench time includes speaking to law schools, think tanks, or a television audience, whose vacations include pheasant hunting with officers and directors of large corporations -- should or should not be impeached is the prerogative of the House. Were the House to impeach on any of these bases, whether considered by me or others to be silly or frivolous, then the Senate could determine whether to convict the impeached. Thus, even the House's judgment regarding what constitutes an impeachable offense can be tempered by the Senate's action on approved Articles of Impeachment.
Adopting yet another federal law -- the resort of scoundrels as a general rule -- rather than deploying the law as it exists now, is not the answer. It is, however, in keeping with the temper tantrums of our times. Rather than proceeding on Articles of Impeachment, the proposed solution is to adopt a statute. But the Constitution does not empower the Congress to direct and control the conduct and lives of the judges of the Supreme Court ... EXCEPT by impeachment and removal.
The time for tantrums in regard to impeachable conduct is passed. If Democrats in the Senate want to remove Judges Scalia and Thomas because of their actions, or those of their family members, including speaking to conservative groups (Scalia) or working with Tea Party groups (Thomas' wife), then let them gain the House and begin proceedings, or convince their Republican counterparts to do so. An accretion of two hundred years of federal laws serves only to demean the value and purpose of existing law, and to advise those whose conduct (President Obama) actually warrants impeachment that they are safe, because, though the Congress is in session, it is undisturbed repose.
