The judge and the speaker

A politically motivated impeachment attempt against a federal judge went nowhere, as Musk's current attempt should.

By Elaine Weiss

The congressman didn't like the rulings of the federal judge. He called them “political” and an “abuse of judicial power” and called the judge “a monster.” He railed against the judge in statements on the House floor and in the press, raised money to support efforts to remove the judge from the federal bench, and filed articles of impeachment against the jurist in Congress. The speaker of the House had to decide what to do about the impeachment motion, submitted by a member of his own political party but clearly lacking evidence and of questionable validity.

This scenario might seem ripped from recent headlines, as Rep. Brandon Gill of Texas has initiated impeachment proceedings against Chief Judge James E. Boasburg of the Federal District Circuit Court in Washington, D.C., contending that the “rogue” judge has abused his judicial authority by making decisions that “prioritize political gain” that interfere with President Donald Trump's deportation policies.

But the judicial impeachment controversy I describe here unfurled 75 years ago, in March 1950, when Rep. L. Mendel Rivers of Charleston sought to impeach Federal Judge J. Waties Waring of the Eastern District of South Carolina. Waring had written desegregation and voting rights decisions challenging the legal underpinnings of Jim Crow white hegemony in that state, including a ruling that the Democratic Party's “white primary”—barring Black citizens from participating in choosing the party's candidates—was unconstitutional. These rulings shook and infuriated the white political establishment. In response, Rivers and his incensed state colleagues accused Waring of “advocating a revolution on the part of the negro against white South Carolina.”

The move to impeach Waring marked an early, desperate attempt by Southern segregationists to stem the success of the NAACP’s legal challenges to Jim Crow laws. By targeting a white Southern judge whose rulings had supposedly betrayed his own people, Rivers and his colleagues sought to chill any attempt to pursue equal rights through the courts by intimidating and punishing judges with whom they disagreed.

This is clearly the playbook being pursued by Gill, an ambitious 31-year-old Republican freshman eager to demonstrate his fealty to Trump. Gill filed his impeachment papers immediately after the president called Boasburg a “troublemaker and agitator” and a “Radical Left Lunatic of a Judge” who should be impeached for placing a temporary injunction on the president's use of the 1798 Enemy Aliens Act in deporting a group of Venezuelan immigrants.

Elon Musk has also stoked the furor with incendiary calls to impeach Boasburg and other “partisan activist” judges while making maximum-limit donations to the campaigns of the Republican representatives leading efforts to impeach judges who've slowed implementation of Trump's executive orders. More than 20 other House Republicans have signed on as co-sponsors of Gill's impeachment effort.

Gill's Republican colleagues in the House know the Boasburg case does not reach the high bar for impeachment, and there is little chance it will succeed. In all of American history only 15 federal judges have been impeached by the House, and these were on the grounds of proven illegal or immoral behavior, not on account of their legal decisions; only eight have ever been convicted by the Senate.

Still, House Speaker Mike Johnson (R-La.) has been giving the matter serious consideration, advancing the process with a referral to the House Judiciary Committee, where chairman Jim Jordan (R-Ohio) promises expedited hearings to investigate the impeachment claims.

Johnson likely knows this is a sham. But, he fears displeasing the president, so he is allowing the charade to proceed. He is even willing to ignore the warnings of Chief Justice John G. Roberts Jr., who has assailed the Boasburg impeachment attempt, saying it is not an appropriate response to disagreement with a judicial decision; the appellate process is the proper route.

In recent days, Johnson and Jordan, recognizing they don't have the votes for impeachment, have floated other plans to retaliate against federal judges who do not toe the administration's line, including legislation "eliminating" some judicial districts where disfavored judges preside, withholding funds from the judges' courts, and curbing their judicial powers. Still, Jordan intends to proceed with Judiciary Committee hearings. If the goal is to intimidate any judge who dares to impose the rule of law on the administration's legally questionable policies, the impeachment burlesque serves a purpose.

Back in 1950, House Speaker Sam Rayburn handled Rivers’s impeachment gambit very differently. Rayburn, himself a Southern Democrat, understood it as a dangerous encroachment on judicial independence, the constitutional separation of powers, and a vindictive attempt to intimidate the judiciary into silence. The speaker took action: He locked the impeachment document away in his office safe. The impeachment articles never saw the light of day, much less advanced to theatrical hearings.

After Rayburn’s refusal to advance an attack on the judiciary, Waring stayed on the bench another two years—until he went into what he called exile after Klan threats on his life and attacks on his home. In those two years, Waring managed to write a landmark dissent in a South Carolina case, Briggs v. Elliot, which provided the legal framework for the U.S. Supreme Court's Brown v. Board of Education school desegregation decision of 1954. That decision became a catalyst for the growth of civil rights movement and changed the course of our nation.

In honor of his fealty to the Constitution and insistence on equality under the law, the Federal Courthouse in Charleston is now named in honor of Waring, a jurist who would not be intimidated by a tawdry threat of impeachment.

Elaine Weiss is the author of “Spell Freedom: The Underground Schools that Built the Civil Rights Movement.”

---