Senate Judiciary clashes over judicial impeachments, rising threats against judges

WASHINGTON (CN) — Lawmakers on the Senate Judiciary Committee sparred on Wednesday over a renewed push to impeach a pair of federal judges — a move which Republicans framed as a justified response to misconduct from the federal bench, but which Democrats said lent support to increasing threats against jurists.

The hearing in the Senate panel’s federal courts subcommittee came hours after its chairman, Texas Senator Ted Cruz, penned a letter to House Speaker Mike Johnson urging him to advance impeachment inquiries against U.S. District Judges James Boasberg and Deborah Boardman.

“Both of these judges, I believe, meet the standard for impeachment and for conviction and removal of office,” Cruz said as he opened the subcommittee hearing.

Republicans for months have slammed Boasberg, chief judge on the U.S. District Court for D.C., for his rulings challenging White House executive actions. And GOP criticism of the jurist was supercharged recently amid reports that he had authorized non-disclosure orders concealing special counsel Jack Smith’s efforts to obtain phone toll records of sitting senators as part of his probe into 2020 election interference.

Cruz argued Wednesday that Boasberg’s actions struck at “the very heart” of the Constitution’s speech and debate clause.

“No republic can survive if its judges help opposition officials surveil the people’s elected representatives," Cruz said.

Boardman, a judge on the U.S. District Court for the District of Maryland, has faced Republican ire over her sentencing of Nicholas Roske, convicted of attempting to assassinate Supreme Court Justice Brett Kavanaugh in 2022. Boardman in October sentenced the defendant to 97 months in prison, a penalty that the Justice Department has said it would appeal.

Cruz claimed Boardman’s sentence was “so drastically out of step with the gravity of the offense that it cannot be squared with any plausible understanding of judicial duty and discretion.”

Though Congress reserves the constitutional right to impeach federal judges who commit “high crimes and misdemeanors,” lawmakers have used that power sparingly throughout U.S. history. Just 15 jurists have been impeached by Congress — only eight have been successfully removed from the federal bench.

But Republicans on the Judiciary Committee, and witnesses invited to testify, argued that judges who abuse their official powers are subject to impeachment, and that the two jurists in question had run afoul of that standard.

Rob Luther, a law professor at George Mason University and former associate White House counsel for the Trump administration, argued that Congress had “without a doubt” impeached judges for conduct on the bench.

“There’s something of a modern misconception … that Congress may only impeach a judge for extrajudicial conduct,” he testified, pointing out that recent impeachments have followed such a trend. “But this trend is not the rule.”

Boasberg’s conduct, Luther claimed, was ripe for impeachment on those grounds.

“Judge Boasberg’s contempt for the separation of powers fits not only comfortably within the impeachment standard … he deserves a unique category of his own," he said.

And Will Chamberlain, senior counsel at conservative judicial advocacy group the Article III Project, told lawmakers that Boardman’s sentencing of the would-be Kavanaugh assassin also fit the criteria for impeachment.

“Judge Boardman’s case … is the rare one where a judicial impeachment would indicate the integrity of the judiciary and protect judges from improper influence," Chamberlain testified.

But Democrats and at least one expert witness called foul on the Republican push to remove the two federal judges from their posts — particularly Boasberg. Rhode Island Senator Sheldon Whitehouse, the top Democrat on the subcommittee, said that the panel should instead be focusing on the “campaign of threats” against federal judges.

The judiciary has long warned that federal judges are increasingly in danger, and top court officials have tied impeachment threats to those rising concerns. Whitehouse argued that renewed efforts to impeach judges could “egg on even more threats” against jurists.

“All of this looks very much like a MAGA-coordinated strategy to bring pressure and threats to bear on a federal judge in an environment in which violent threats are prevalent,” said the Rhode Island senator. “There was a time when I’d have hoped the Senate Judiciary Committee would not be roped into a scheme to amplify pressure and threats against a sitting federal judge, but here we are … and look who holds the gavel.”

Steve Vladeck, a law professor at Georgetown University, pushed back on claims that Congress should rely on impeachment as a tool to hold federal judges accountable.

“Impeachment has not been, is not, and in my view should never be a remedy for rulings with which some or even many of us disagree, even when one tries to characterize those disagreements as a separation of powers violation,” he told the committee.

Vladeck added that now was an “especially dangerous moment” for lawmakers to explore impeachment thanks to the “unprecedented” rise in attacks and threats against judges, including from “senior executive branch officials.”

And the professor further pointed to existing federal law — the Judicial Conduct and Disability Act — which he said provided an “avenue” for bringing misconduct complaints against judges, rather than impeachment.

“The point is, there are processes for these concerns,” said Vladeck.

Even though the impeachment drum is beating once again in Congress, top lawmakers have long been reticent to use the tool to remove federal judges who have ruled against Trump. Johnson, who as speaker would oversee an initial impeachment vote against a judge, has acknowledged a high bar for the “high crimes and misdemeanors” governing impeachment and has instead held up legislation clamping down on national injunctions as a “silver bullet” to Republican grievances against judges.

But Cruz said at the end of Wednesday’s hearing that he believed the House would approve impeachment against Boasberg and Boardman and that their cases would move to trial in the Senate.

Asked by Courthouse News whether he believed Johnson’s calculus on impeachments had changed, the Texas Republican did not directly answer, saying instead that there was “a reason” he’d selected the two judges in question for an impeachment inquiry.

“Their decisions and their misconduct are the most indefensible,” said Cruz. “They’re the clearest deviations from their oath of office, they are the most lawless … these two I think are uniquely egregious.”

Follow @BenjaminSWeiss