So maybe “high crimes and misdemeanors” should be seen in a more flexible way, according to some. Streiff, at Red State, is all for widening the reach of impeachment, to such an extent that it would become another nearly-everyday form of public accountability, as regular as a mid-term election. Here’s what he wrote a few days ago regarding West Virginia’s state legislature and it’s attempts to impeach their State Supreme Court of Appeals over out-of-control renovation costs at the high court’s chambers.

As impeachment is a political and not a judicial act, wearing white shoes after Labor Day is an impeachable offense if a majority of the House of Representatives says it is. Eric Holder and Susan Rice should have been impeached in the last administration. In the current one, Rod Rosenstein needs to be impeached. The House fixating on what the Senate might do misses the point. A viable threat of impeachment and the possibility of having to face a trial in the Senate would have a moderating influence on a lot of bad actors. And, even absent trial and conviction, the impeached official would have their ability to functioned sufficiently damaged that they would probably either resign or be fired. In the case of federal judges, we lose sight of the fact that they only “shall hold their offices during good behavior” That “good behavior” is something the House has the right to decide. A district court judge or appellate judge who is regularly reversed should be assumed to not be exhibiting “good behavior.” In fact, I think the nation would be well served if Congress took a page from some high pressure companies and every year rank-ordered judges from top to bottom and impeached the lowest ten percent.

Which would certainly change the balance of power between the Legislature and Congress. Whether at the state level or at the federal level. Is this all Harvard and Yale’s fault? Is this sort of contempt for the Judiciary the inevitable outcome of an isolated and elitist class of lawyers and judges who go to a select few universities and who wield incredible power as a result? Not that West Virginia’s judges fit that description. Chief Justice Margaret Lee Workman was apparently born to coal miner parents and did her law school in-state. Robin Davis got hers at West Virginia U. Former Chief Justice Allen Loughry was arrested and convicted of fraud presumably for out of control spending on renovations and who knows what else. He went to law school in Columbus, Ohio.

Does this mean that the judiciary needs to be dependent on the legislature? A no-longer co-equal branch of government?

Consider this theoretical. Should the Taney Supreme Court which authored Dredd Scott as a sort of desperate attempt at a quasi-political settlement of a fundamental legal issue in America, have all been impeached? Looking back and comparing what they did to spending too much on furniture in West Virginia, the answer to commentators like Streiff should be at least, a resounding yes.

Or think of it this way, Hobbe’s gloomy vision of society (forged during England’s Civil War) led to his belief in the necessity of a Leviathan, an unquestionable authority whose will would bring order, even if sometimes iniquity rather than true justice would be a likely outcome. Locke later dispelled some of that gloom and helped lay the foundation for America’s constitution, but in some ways the independence of the Judiciary is a remnant of Hobbe’s pessimism: a hermetically sealed corporation that society places enormous power in the hands of, in the hope of interpreting the laws that the legislature writes, and of enforcing their particular interpretation through the state’s monopoly on violence. Stare decisis indeed.

With that view, then what Streiff is suggesting is the crushing of the authority of the Judiciary, because of what seems to be a feeling that they are not only corrupt and partisan, but incompetent.

What would America look like with the threat of impeachment constantly hanging over the heads of elected officials and members of the Judiciary? If getting re-elected is what drives Congress to pass off the details of their legislative duties to the Administrative State, then Streiff may find that he likes little of what would result from a weakened judiciary. But burning things down is in season right now.

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