There are scoundrels who become judges and there are judges who, after taking office, become scoundrels. So reflexively defending every judge who is the subject of impeachment does the judiciary no good. Governing Magazine points out there is a trend that should make people at least nervous. “Attacks on judicial independence are becoming more frequent and more partisan. The current effort to impeach the entire West Virginia Supreme Court, while not unprecedented, is taking place against a backdrop of political attacks against judges elsewhere.
“There’s a kind of a war going on between the legislatures and the courts,” says Chris Bonneau, a political scientist at the University of Pittsburgh. “Absolutely, we’re seeing a new environment.”
The West Virginia House last month voted to impeach all the sitting justices on the state Supreme Court. The state Senate is set to begin its impeachment trial Tuesday. There were legitimate reasons for legislators to go after justices, or at least some of them.
In June, Chief Justice Allen Loughry was charged with 22 criminal counts, including fraud and witness tampering. Two weeks ago, Justice Menis Ketchum pleaded guilty to fraud. The court as a whole has been accused of lavish spending, including purchases of expensive custom-made office furniture. This is also the court that triggered the U.S. Supreme Court to rule in 2009 that a justice should have recused himself from a case involving a coal company after it donated $3 million to his campaign.
“The West Virginia Supreme Court is kind of a battered one,” says Michael Nelson, a political scientist at Penn State University. “It’s a particularly weak court to attack because its credibility has been debated.”
Nonetheless, West Virginia Democrats have accused Republicans of staging a coup by impeaching the entire court. The allegations of criminal impropriety had been known for months, but legislators waited until last month to act — missing a deadline to let voters, rather than the governor, fill any vacancies. (Justice Robin Davis resigned, rather than face an impeachment trial, to give voters a chance to pick her replacement.) Republican Gov. Jim Justice did little to assuage complaints of partisan meddling in the courts by appointing two politicians, state House Speaker Tim Armstead and Congressman Evan Jenkins, to interim posts on the court last week. It’s not unheard of for sitting politicians to be appointed to court seats, but it’s not the common practice.
Judicial impeachments actually were rather common in earlier eras. During the 19th century, for instance, New Hampshire’s legislature made a habit of clearing out the entire state Supreme Court, doing so on at least five occasions.
In the 20th century, impeachments became increasingly rare. In most instances, talk of impeachment has been just that, with legislators stopping short of actually filing resolutions to get rid of jurists.