Impeachment is not the answer for Judge Bybee
It's the atomic bomb of American politics.
The quest to impeach federal Judge Jay Bybee has moved beyond the blogosphere, with former President Clinton's chief of staff and a chorus of lawmakers calling for his ouster. They cite Judge Bybee's previous work as head of the Justice Department's Office of Legal Counsel, where he helped produce memos that green-lighted harsh treatment of prisoners at Abu Ghraib, Guantánamo, and elsewhere.
There's no doubt that the policies Bybee helped write spawned detainee suffering. Had the memos been public during his hearing, it's hard to imagine him being confirmed. But turning impeachment into a litmus test for revulsion over prisoner abuse is a constitutional mistake – and a political one as well.
Nobody should be above the law, but it's important to understand that impeachment was made cumbersome in order to discourage efforts to remove judges for partisan purposes. That's why so few judges have been impeached. Over two centuries, congressional interpretation of the Constitution has evolved to limit impeachment to occasions where there is a general consensus that the judge has committed a "crime" or "misdemeanor" serious enough to constitute a breach of the public trust. This high standard insulates courts from political pressure even when lawmakers find judges' views to be disagreeable.
The Constitution gives the courts extra breathing room, even in stormy or disagreeable circumstances. For example, after flirting with more partisan motives in the early 19th century, Congress has held off on impeaching judges on account of their decisions. And no federal judge has been impeached for conduct that took place before taking the bench, including legal work for the government.