Friday, June 12, 2009

Me vs. The Supremes – Part XII

In his sua sponte order of dismissal of my Third Lawsuit against the Supremes, Judge Leon stated: “The Constitution commits the issue of removal on impeachment of civil officers of the United States - including federal judges – to Congress. U.S. Const. art. I, §§ 2, 3. Therefore, the removal from office of the justices of the Supreme Court is a political question that is nonjusticiable by this Court. See: Nixon v. Unit ed States, 506 U.S. 224 (1993); Bergen v. Edenfield, 701 F.2d 906, 908 (11th Cir. 1983)("Congress has never given a district court the power in a civil action to enjoin an Article III judge from continuing to sit on the bench . . .").

In other words, only Congress could remove a federal judge from office, according to the learned Judge Leon. But a review of the authority for this ex cathedra pronouncement by Judge Leon reveals that no such authority exists and thus it was far from “patently obvious” that my Third Lawsuit could not prevail. Hence, a sua sponte dismissal was unauthorized. . . .

In his sua sponte order of dismissal, Judge Leon first cited Nixon v. United States, 506 U.S. 224 (1993). Nixon deemed a “political question” and hence non-justiciable the procedure required by the word “try” in Article I, § 3, cl. 6. Citing to Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court found that “the word “try” in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.” This holding was inapposite here as I maintained that Congress is denied by the “textual limit” of the Constitution the power to remove a Justice for “misbehavior” – an issue never addressed by the Supreme Court – and thus it is not a “political question.”

Second, Judge Leon cited Bergen v. Edenfield, 701 F.2d 906, 908 (11th Cir. 1983). In Bergen, the 11th Circuit panel held the obvious: “The only mechanism for removal of a federal judge provided in the Constitution is the impeachment process. U.S. Const. art. II, Sec. 4.” However, citation to Bergen begged the question explicitly raised by me and ignored by Judge Leon who refused to hear any argument in derogation of its duties under Marbury vs. Madison to “say what the law is”: to wit, whether such alternative to impeachment removal mechanisms were identified and reserved by Article III and the Ninth and Tenth Amendments to the Constitution.

However, for Judge Leon to address these question would raise the specter of federal judges being held accountable by a jury or twelve, tried and true men and women. Such a fate nauseates federal judges who have come to recognize their power as well as their immunity from liability for their actions, as absolute.

Of course, I have taken Judge Leon’s sua sponte dismissal up on appeal, and that matter now pends in the inexorably slow process of federal appellate resolution – thus accomplishing what Judge Leon wanted all along – that my issue would never see the light of day.


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