The Judicial Impeachment Blind Spot

Everyone talks about impeachment as if it is a political weapon, a nuclear option, or a constitutional safety valve for an out-of-control executive. The modern mind immediately goes to presidential scandals: Nixon's tape recordings, Clinton's stained dress, Trump's phone calls and January 6th. This is what we think impeachment is for. But the Founders' actual thinking on impeachment has been almost completely lost in the modern noise. The angle almost nobody explores is this: the Founders designed impeachment not primarily for the presidency, but for the judiciary.

That is right. The most revealing commentary on impeachment in the Federalist Papers comes from Alexander Hamilton writing about the federal courts, not the White House. And that fact tells us something deeply uncomfortable about how we have inverted the entire purpose of the Constitution's most misunderstood power.

The Good Behavior Trap

Here is the constitutional logic that gets missed by almost everyone. Article III of the Constitution states that federal judges shall hold their Offices during good Behaviour. This is the Constitution's carefully chosen language for what we now call life tenure. The Founders made a deliberate decision: judges would not face elections. They would not serve at the pleasure of the president. They would be, by design, the most insulated branch of government from popular will.

Why? Because the Founders understood something that modern activists on both sides seem to have forgotten: an independent judiciary is the last line of defense for individual liberty. If judges had to worry about being voted out after every unpopular ruling, they would rule by poll numbers, not by the Constitution. The rights of the minority, the very thing the Bill of Rights was written to protect, would be at the mercy of whatever faction held power. So the Founders solved that problem by giving judges life tenure. Good move.

But then they faced a different problem: how do you remove a bad judge without making the judiciary a creature of political whim? The Constitution answers this question in Article II, Section 4: the President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Founders deliberately made the process hard. They used very specific language. High Crimes and Misdemeanors was a term of art borrowed from English common law, and it meant something quite narrow: serious abuses of the public trust that amounted to crimes against the state itself. It did not mean we disagree with his rulings. It did not mean his politics are wrong. It did not mean he is an activist judge we do not like.

James Madison argued in Federalist 65 that the impeachment process should be difficult precisely because the Founders feared a majority faction using it as a weapon against political opponents. They wanted the bar set high enough that only the most egregious betrayals of office would trigger removal. Now fast-forward to 2025. What have we done with this careful, deliberate, fragile design?

We Have Inverted the Founders Intent

Here is the uncomfortable reality that the constitutional commentariat refuses to discuss. We have taken the most insulated branch, the judiciary, and almost never used impeachment against it, even in cases of clear corruption that would make a Tammany Hall ward boss blush. The last federal judge removed by impeachment was G. Thomas Porteous in 2010. His offenses? Accepting bribes from lawyers with cases before him, lying to the Senate about his financial situation, and filing for bankruptcy under a false name. A clear, documented case of high Crimes and Misdemeanors. It took twelve years to get him removed.

Before Porteous, Judge Samuel B. Kent went to prison for lying to investigators and sexually assaulting two female employees, but the House did not impeach him until after his conviction. Judge Alcee Hastings was removed in 1989 for accepting bribes, then was elected to Congress and served until his death. Judge Walter Nixon was removed in 1989 for lying to a grand jury about accepting bribes. Notice a pattern. Almost all the judicial impeachments that did happen involved bribery, perjury, or criminal convictions. The bar was, in practice, set even higher than the Founders intended.

Meanwhile, we have turned the presidential impeachment process into a partisan Rorschach test that happens roughly once a decade. Since the Constitution was ratified in 1789, only two presidents have been impeached and removed by the Senate, and that number is zero. Andrew Johnson survived by one vote. Bill Clinton survived. Donald Trump survived twice. Richard Nixon resigned before the House could vote. Three serious presidential impeachment proceedings in fifty years. In that same period, seven federal judges removed. Seven judges out of hundreds, despite documented cases of financial corruption, sexual misconduct, and outright criminal behavior on the bench. The inversion could not be more stark.

Why It Matters The Least Dangerous Branch Theory

Alexander Hamilton wrote in Federalist 78 that the judiciary would be the least dangerous branch of government. His reasoning was elegant: unlike Congress, the courts had no power over the purse. Unlike the president, they had no command of the military. They could issue rulings, but they had no army to enforce them. They were, in Hamiltons famous phrase, the branch with neither Force nor Will, but merely judgment.

But here is what Hamilton did not say, because he assumed it was obvious: this argument depends entirely on the judiciary retaining its credibility. A judiciary that is perceived as corrupt, politicized, or unaccountable is not the least dangerous branch. It is the most dangerous, because it poisons the well of justice itself. When you lose faith in the courts, when you believe the judge will rule based on politics, favoritism, or the size of the envelope, you have lost the foundation of a republic of laws. The entire system of rights and remedies depends on the belief that a judge will enforce the Constitution as written, not as the prevailing political wind demands.

This is where the Founders design and our modern practice diverge catastrophically. The Founders insulated the judiciary precisely because they intended impeachment to be the accountability mechanism. They gave judges independence from elections on the condition that serious misconduct would result in removal. The two parts of the design are inseparable: independence plus accountability. We have preserved the independence. We have abandoned the accountability.

The Knowledge Problem Applied

Thomas Sowell, following Friedrich Hayek, taught us to be skeptical of the gap between intentions and results. The intention of judicial independence is to protect the rule of law. The result of judicial independence without meaningful accountability is something else entirely. Consider the knowledge problem that Hayek identified in central planning: no single planner can gather all the dispersed information that a free people generate through voluntary exchange. A similar problem applies to the judiciary. No Senate committee, no House Judiciary panel, no amount of hearings and investigations can fully capture the behavior of hundreds of federal judges scattered across the country, each wielding enormous power over the lives and liberties of citizens.

The consequence is that judicial misconduct is systematically under-enforced. Most cases never see the light of day. Most complaints are dismissed internally. The Judicial Conduct and Disability Act of 1980 created a mechanism for complaints, but it is an opaque process that produces almost no public accountability. The Chief Justice and the Judicial Conference essentially police themselves, and self-policing, as any student of human nature knows, is an oxymoron.

Milton Friedman famously said that nobody spends somebody else's money as carefully as they spend their own. The corollary for the judiciary is that nobody polices their own institution as rigorously as they would police someone else's. This is not about malice. It is about incentives. And incentives, as the Founders understood better than most modern reformers, are the only reliable guide to predicting human behavior.

The Human Stakes

Let me bring this down from the constitutional stratosphere to the ground where real people live. If you are a small business owner facing a federal lawsuit, you want a judge who will rule on the law, not on personal relationships or political connections. If you are a parent fighting a school board over your child's education, you want a judge who reads the Constitution and applies it as written. If you are a citizen accused of a crime, you want a judge who presumes your innocence and enforces the rules of evidence fairly. Every one of those scenarios depends on judicial integrity. And judicial integrity, in turn, depends on the credible threat of accountability.

The Founders understood this. They gave us the tool. We just refuse to use it.

A Return to First Principles

What would a restoration of the original understanding of impeachment look like? It would mean taking seriously the Founders design: impeachment is a mechanism for removing federal officers, especially judges, who betray the public trust through serious misconduct. It is not a political weapon to be deployed against an unpopular president. It is not a do-over for a lost election. It is not a tool for punishing policy disagreements.

It would mean the House exercising its constitutional duty to investigate judicial misconduct with the same energy it devotes to presidential scandals. It would mean the Senate treating judicial impeachment trials as solemn constitutional obligations, not political theater. And it would mean citizens holding their representatives accountable for failing to use the tools the Constitution provides. Every time a federal judge is credibly accused of bribery, perjury, sexual misconduct, or outright criminal behavior, and the House does nothing, the system breaks a little more. Every time the Senate refuses to convict a clearly corrupt judge because it would be too political or too divisive, the system breaks a little more.

The Founders did not design a perfect system. They designed a system that could work if we worked it. Impeachment is hard for a reason. But hard is not the same as impossible. And the cure for a broken system is not despair. It is the determined, principled, constitutionally faithful exercise of the powers we have.

The Bottom Line

Impeachment is not a political toy. It is not a way to settle scores with an inconvenient president. It is not a constitutional tantrum for the losing side of an election. It is a constitutional duty, one the Founders designed primarily to protect the integrity of the branch they made most independent. And we have shirked that duty for so long that we have forgotten it exists. If you want to understand what impeachment is for, stop looking at the White House. Start looking at the federal courthouse. The answer has been there all along, buried under two centuries of political convenience and a willful forgetfulness of what the men who wrote the Constitution actually intended.

Restoring the original understanding of impeachment will not fix everything wrong with Washington. But it would be a start, and it would honor the design of a republic the Founders understood better than we do. The question is whether we have the courage to look honestly at what they built, and the humility to admit that we have been using it wrong.