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Book Review

The Age of Impeachment:
American Constitutional Culture since 1960

by David E. Kyvig
Published by University Press of Kansas, 2008;
482 pp

by Jo Freeman

Calls for impeachment have become so common in the last few years that we forget how recently it has entered the political arsenal. Once viewed as a blunderbuss, it is now used as a bludgeon.

In this thoroughly researched and fascinating book Kyvig reminds us that The Age of Impeachment only began in 1961. In the previous 173 years it had been called for 13 times, with four convictions and three resignations. In the two most notable cases, the Senate did not convict either Justice Samuel Chase in 1805 or President Andrew Johnson in 1868. After 1936, calls for impeachment of federal officials became dormant.

It was brought back to life by the extreme right-wing John Birch Society which funded billboards saying, "Save American — Save America — Impeach Earl Warren," on highways across the country. Chief Justice Earl Warren was more of a symbol of a Court whose decisions extreme conservatives found horrifying than a personal target, so the demand for his removal did not go far.

But it heralded a new era in which impeachment, or the threat of impeachment, was used as a partisan political strategy, and not just a means to remove a federal official for "Treason, Bribery, or other High Crimes or Misdemeanors."

The court decisions which provoked the extreme conservatives were the school desegregation cases and several which restored constitutional rights to accused Communists. While removal for a judicial ruling was not constitutionally permissible, the campaign against Warren opened the door to closer scrutiny of other Justices whose decisions angered conservatives.

In 1968 Warren decided to retire and President Johnson nominated Associate Justice Abe Fortas to succeed him. Anticipating victory in November, Republicans stalled confirmation. When an investigation done to support delay showed that Fortas had received some outside income — not without precedent for Supreme Court Justices — it was played as an impropriety. This led Republican Representatives to threaten impeachment and Fortas to resign. Nixon got to fill two seats on the Court (with Burger and Blackmun).

Tasting blood, conservatives set their sights on Justice William O. Douglas, who deeply offended them not only with his liberal decisions but his lifestyle. He, too, had some outside income. An investigation was begun five days after Nixon’s inauguration but only took off when House Republican leader Gerald Ford took up the cudgel in 1970, once the Democratic Senate had refused to confirm two nominees for Fortas’ seat.

Hiring his own lawyer to defend him, Douglas survived a House Judiciary subcommittee investigation that voted along party lines. By the time this vote was taken on December 3, 1970, the threat of impeachment was fast becoming a weapon in the partisan wars.

Partisanship receded during Watergate. Even Republicans were upset by the behavior which led to the resignations of Vice-President Spiro Agnew on October 10, 1973, and President Richard Nixon on August 9, 1974. Accused of taking bribes, Agnew unsuccessfully requested a House impeachment inquiry to pre-empt a criminal indictment.

Nixon’s cover-up of the Watergate burglary was already under Congressional investigation when he lost his "impeachment insurance." As a bipartisan consensus emerged that he had to go, the House Judiciary Committee approved three articles of impeachment.

Congress gained experience with actual trials in the 1980s when it impeached three federal judges. These trials, and the resignation of two other federal judges to avoid trial, confirmed the political nature of impeachment.

By the time President Bill Clinton was tried in 1999, no one doubted the partisanship behind the accusations. But the Republicans didn’t have the two-thirds of the Senate necessary to convict, and during the term of his successor, George W. Bush, the Democrats didn’t have the votes in the House to indict.

Kyvig argues that the increasing threats and use of impeachment was a bellwether to the intensifying toxicity of our political culture. What is an impeachable offense is not defined in law or legal precedent and thus is somewhat malleable. As long as the major parties seek to eviscerate each other, impeachment will be less of a tool to correct personnel mistakes than one used to fight about policy differences.

This book tells some good stories, while providing details of what happened behind the scenes. You will enjoy reading it, as well as learning more about impeachment than you thought was there to know.

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