Ethically Ignoring Impeachment Efforts: Historical Case Study of the Politics of the Impeachment Efforts of Justice Douglas

• Author: Brett Bethune
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Georgetown University (2019)
• Pages: 529-548

Ethically Ignoring Impeachment Efforts: Historical

Case Study of the Politics of the Impeachment

Efforts of Justice Douglas

BRETT BETHUNE*

INTRODUCTION

“[A]n impeachable offense is whatever a majority of the House of Representatives

considers it to be at a moment in history.”

1

Then-Congressman Gerald Ford

spoke these words on the floor of the House of Representatives in 1970 when

debating whether the House should impeach Justice William O. Douglas over

alleged ethical improprieties and improper judicial conduct. In 2017,

Congresswoman Maxine Waters made a similar claim regarding President

Trump that “[i]mpeachment is about whatever Congress says it is.”

2

Buckner F. Melton, Jr., The Legal Questions Still Unanswered by Trump’s Impeachment, THE ATLANTIC

(December 29, 2019), https://www.theatlantic.com/ideas/archive/2019/12/questions-left-unanswered-trumps-

impeachment/603994/ [https://perma.cc/4TK3-DXEW].

The state-

ments of Representatives Ford and Waters offer frank assessments of the con-

stitutional standard involving the impeachment of certain federal officials,

such as Justices of the Supreme Court, and they reveal how flexible and

broadly wielded the impeachment power can be.

It is not just politicians who have raised the issue of impeachment in the public

debate. In fact, one of the most prominent impeachment campaigns against a

Supreme Court Justice was sponsored by a private, right-wing organization called the

John Birch Society.

3

This movement targeted Chief Justice Earl Warren, and it

reached such great popularity that the movement’s “Impeach Earl Warren” billboards

were “ubiquitous” throughout the countryside during the late 1950s and the 1960s.

4

More than a million Americans signed a petition calling for Warren’s removal.

5

In

the years following Chief Justice Warren’s (voluntary) retirement, impeachment of

Supreme Court Justices remained a hot-button issue. Perhaps the most prominent ju-

dicial target of calls for impeachment since Warren was Justice William O. Douglas.

6

* J.D., Georgetown University Law Center (expected May 2022); B.A., Georgetown University (2019).

© 2022, Brett Be-thune.

1. 116 CONG. REC. 11,913 (1970).

2.

3. See Robert Brown From Earl Warren to Wendell Griffen: A Study of Judicial Intimidation and Judicial

Self-Restraint, 28 U. ARK. LITTLE ROCK L. REV. 1, 2–3 (2005).

4. See Michael Anthony Lawrence, Justice-As-Fairness as Judicial Guiding Principle: Remembering John

Rawls and the Warren Court, 81 BROOK. L. REV. 673, 674 (2016).

5. See Brown, supra note 3, at 4.

6. See Marjorie Hunter, Ford Asks Douglas’s Ouster, N.Y. TIMES, Apr. 16, 1970, at 1.

529

As this Note will explore, Justice Douglas’s impeachment saga represents a

fascinating historical episode about the role of and motivations behind impeach-

ment in political discourse. Many scholars have suggested that the efforts to

impeach Justice Douglas were primarily driven by political considerations.

7

However, this impeachment episode is particularly interesting to analyze through

the lens of legal and judicial ethics because, notwithstanding some scholars’ con-

tentions that the effort was politically motivated, the impeachment charges

against Justice Douglas at least purported to rely on the American Bar

Association’s (“ABA”) Canons of Judicial Ethics.

8

Was the impeachment of

Justice Douglas an example of government officials attempting to enforce the

Canons of Judicial Ethics? Alternatively, was the impeachment effort an example

of political actors weaponizing the Canons of Judicial Ethics to further political

goals?

This Note seeks to answer these questions. First, it explores the allegations

against Justice Douglas and identifies the extent to which these allegations

actually recognized principles of judicial ethics. Second, this Note considers the

political motivations lurking behind the impeachment efforts. Third, it evaluates

Justice Douglas’s response to the allegations, particularly from the viewpoint of

judicial ethics. Finally, this paper proposes a new Model Rule of Judicial

Conduct designed to insulate judges from allegations of political decisionmaking

should they face charges of impeachment. This proposed rule is consistent with

the theoretical underpinnings behind the importance of public confidence in the

judiciary, which is a feature embodied in both the current Model Rules of Judicial

Conduct, as well as the constitutional framework of our government. Given the

flexible nature of impeachment, this new rule will provide firmer guidance for

judges if and when impeachment campaigns are leveled against them.

I. ALLEGATIONS AGAINST DOUGLAS

On April 15, 1970, Congressman Gerald Ford, a Republican from Michigan,

rose on the floor of the House of Representatives to give a lengthy speech about

the misconduct of Justice William O. Douglas.

9

In this speech, Ford set forth the

allegations that he believed warranted a thorough investigation conducted by a

special committee in the House of Representatives.

10

Throughout his statement

on the floor of the House, Ford identified several ethical and legal obligations bro-

ken by Justice Douglas, as well as the instances of conduct that constitute the vio-

lation of those obligations.

11

This Part first identifies the obligations alleged to

7. See generally MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESSES (2000).

8. 116 CONG. REC. 11,912 (1970).

9. Id.

10. Id. at 11,919.

11. See, e.g., id. at 11,912 (citing CANONS OF JUD. ETHICS Canons 4, 24, 31 (AM. BAR ASS’N 1924)).

Interestingly, Ford’s speech, which was given in 1970, references the “36-year-old Canons of Judicial Ethics of

the American Bar Association.” Id. However, the original thirty-four Canons of Judicial Ethics were adopted

530 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:529