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PaperclipPerfector  1d ago (text post)   5802 thread views

Culture War Roundup for the week of March 3, 2025

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Apologies for the two back to back posts, but I've been reading something on Twitter that is very fascinating:

The NYT this morning criticized Elon Musk's call to impeach federal judges, accusing him of violating constitutional norms. Well, I looked into the data and it's insane: We stopped impeaching federal judges, despite having more of them now than ever! The impeachment rate now seems implausibly low.

Either federal judges have become saints, or something is suppressing impeachments. What is the probability we'd observe zero impeachments from 2011-2024? Using the Poisson distribution, I think it's somewhere around 3-7% depending on how you do it. So it's very fishy.

What's even crazier is that there is a clear political story behind all of this.

The 1980 Judicial Conduct and Disability Act, signed by Jimmy Carter, gave judges the power to police themselves through an obfuscated multi-layer system where chief judges dismiss almost all the complaints and judicial councils choose confidential sanctions in most of the cases where they even admit wrongdoing occurred.

Then in 2008 the federal judges "reformed" themselves, which seems to have made things even worse. I have to look into this more, obviously a complicated issue.

But it seems that the NYT is wrong and Musk is right, we do need to impeach more federal judges. (I'll post a longer piece on this later.)

On the other hand, if I understand the graph correctly, the US has never impeached more than 15 federal judges in its history and there have been decades where no judges at all have been impeached, so calling for the impeachment of judges you disagree with is indeed an anomaly and would likely just come back to bite you in four years.

Using the Poisson distribution, I think it's somewhere around 3-7% depending on how you do it. So it's very fishy.

Is this a deliberate pun?

The 1980 Judicial Conduct and Disability Act, signed by Jimmy Carter, gave judges the power to police themselves through an obfuscated multi-layer system where chief judges dismiss almost all the complaints and judicial councils choose confidential sanctions in most of the cases where they even admit wrongdoing occurred.

Then in 2008 the federal judges "reformed" themselves, which seems to have made things even worse. I have to look into this more, obviously a complicated issue.

Is it working?

Let's say that the appointment rate of bad judges stays constant over the centuries, but the enforcement mechanisms change. We could see:

  1. a bad judge makes a number of bad decisions (possibly just one) and retires without sanction after a full career. Zero impeachments but many bad decisions.
  2. a bad judge makes a number of bad decisions and is impeached. One impeachment.
  3. a bad judge makes a number of bad decisions and is referred to the committee and accepts their recommendation to resign. Zero impeachments.
  4. a bad judge gives off some warning signs without any substantive bad decisions and is referred to the committee and either accepts their recommendation to resign or reforms and becomes good. Zero impeachments and zero bad decisions.

All I can say after reading this is that we aren't in scenario #2. The tweet author is suggesting #1, but both #3 and #4 fit with the evidence presented.

I don’t think trying to impeach judges is a good idea either although I also think this is a fairly obvious political response to the dems and the others in the senate who constantly tried to push Supreme Court reform which was basically just designed to give congress the ability to oversee recusal decisions: https://www.congress.gov/bill/118th-congress/house-bill/926/text

This analysis reminds me of how humanities and “soft” sciences often try to use mathematics to dress up arguments that are really nothing more than vibes. Why should judicial impeachments be poisson distributed? Even if they are, how do you infer the correct parameter? Using the small number of known occurrences is going to yield huge variance. I mean just look at the interesting choice of y-axis in the first chart. The numbers of impeachments are so small that you really have to strain yourself to make a coherent argument with any amount of rigor.

calling for the impeachment of judges you disagree with is indeed an anomaly and would likely just come back to bite you in four years.

Nobody’s going to have the votes to go impeaching judges Willy-nilly any time soon.

I think the reason they are impeaching judges is to have a chilling effect.

Since removal requires 2/3rds of the Senate, it's impossible to remove judges for partisan behavior.

But most people don't like being the subject of intense scrutiny. An impeachment trial would be humiliating to a judge, who is normally accustomed to unchallenged power and even sycophancy.

Ok- so the GOP can probably find an example, somewhere, of a democrat federal judge taking bribes(after all, there’s hundred of them). Democrats still won’t impeach because they believe the GOP is ignoring Clarence Thomas doing the same thing. That this belief is false doesn’t matter.

Judges are almost never impeached because the federal judiciary has an internal process where if a judge is found to have done something bad after an investigation, the judiciary will recommend that the judge voluntarily resign. The judge will almost always comply with the resignation "suggestion," because if he does not, the judiciary will recommend impeachment to congress. Such a recommendation carries a great deal of weight when your own colleagues in the judiciary think you deserve to be impeached. So the impeachment rate is low because there is an internal process that pushes judges who would otherwise get impeached to voluntarily step down.

Does this internal process covers being a terrible judge, or just actions of criminal or corrupt nature?

I’m imagining a scenario where we have a judge that keeps issuing clearly wrong decisions that keep getting overturned in appeals. This stuff happens sometimes to all judges, but let’s assume we are talking someone who is wrong as a matter of law frequently very frequently and egregiously. Assume though that there is no corruption involved. Does the internal judiciary process even recognizes this as an issue? Or is Congress initiated impeachment the only option here?

The process is generally used for criminal/corrupt behavior or failing to do the job (like failing to show up to court, failing to issue opinions, failing to resign when no longer mentally competent for the job). The complete set of arcane procedures are here, I believe.

I don't know whether the process is ever invoked for judges who are "wrong as a matter of law frequently." Often this is the result of a political or philosophical disagreement rather than a failure to do one's job. For example, imagine a conservative district judge pre-Dobbs who consistently holds that Roe was wrongly decided and is not good law, and therefore keeps getting reversed. It may seem that this judge is constantly getting the law "wrong," but in fact he is getting the law "right" and will later be vindicated by Dobbs.

It may seem that this judge is constantly getting the law "wrong," but in fact he is getting the law "right" and will later be vindicated by Dobbs.

This sounds reasonable at first, but if you think about it, the legal system cannot work like that. What this means in practice for users of the system is that if they happen to have bad luck and draw this judge, it just adds an additional useless step to the process, where the superior court will have to overturn. Imagine if appeals court remands the case back to lower court. What will this lower court judge do? Will he rule wrongly again, requiring another appeal? Or will he rule as instructed by superior court in this particular case, but will do the opposite in other cases?

Anyway, my point is that the hierarchical judicial system requires lower courts to defer to rulings and opinions of superior courts. It is normal and reasonable when superior court overrules a lower court because of some mistake or error, but the system cannot maintain the trust and respect of the users where lower courts routinely ignore law and superior precedent.

Regardless, I am not aware of a real-world situation where a federal judge has been consistently "wrong" while otherwise doing his job (i.e. showing up for hearings and issuing orders in a timely fashion). For example, a federal district judge ignoring a direct order from the circuit court would be shocking. Perhaps some examples of this exist, but I am not aware of any, and presumably it would be grounds for disciplinary proceedings.

The obvious follow up question is what percentage of judges resign in those circumstances?

I don't know whether the data exists, but my understanding is the vast majority voluntarily resign, probably over 90%.

Sorry I was unclear. I mean, what percent of federal judges are defacto "forced to resign" under the method you mentioned. 1%? 0.1%?

I don't know but probably that range is about right.

Almost all of them. There are few Roy Pearsons in the federal judiciary.

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