Bankruptcy as an Impeachable Offense
posted by Gerard Magliocca
I was reading up on James Wilson over the weekend–a tragic story to be sure. Here’s one issue from the end of his life that could present a problem someday.
Justice Wilson invested heavily in frontier property and could not meet his debt payments by the mid-1790s. He was (as was the practice then) thrown into debtor’s prison and died in North Carolina on the run from other creditors. Had he lived longer, he might have been impeached.
Question: Suppose a future Justice of the Court makes some really bad investments and is forced to declare personal bankruptcy. Assuming that this Justice did not engage in fraud and continued to show up for work, would his or her bad financial judgment be sufficient grounds for impeachment?
At first blush, the answer is no. Going bankrupt is not a crime–it happens to lots of people. On the other hand, a bankrupt Justice would not exactly exude authority or generate confidence, and might, I suppose, be a ripe target for corruption. Plus, there might be lots of conflicts (Would the penniless Justice have to recuse from all bankruptcy cases?)
Thoughts?
May 28, 2012 at 5:20 pm
Posted in: Constitutional Law
Print This Post
Responses (8)
Prattle On, Boyo - May 28, 2012 at 5:30 pm
I don’t think society will ever have to call into question a judge who files BK. Judges salaries/bennies/side deals enable them to live quite high on the hog, so to speak.
A Non-E Mous - May 28, 2012 at 9:08 pm
The issue isn’t entirely hypothetical. While not one of The Supremes, a District Court judge in CDCa just filed for bankruptcy. And his filing seems to stem from “poor financial investments,” namely department store purchases.
http://losangeles.cbslocal.com/2012/04/26/federal-judge-who-made-171k-last-year-files-for-bankruptcy/
The conflict I think is relevant for this particular judge is filing in his own district, among his colleagues. As for your suggestion that a Justice in bankruptcy would have to recuse himself from any bankruptcy cases, I dont think it follows. I think it is similar to the erroneous assertions that any gay judge would have to recuse himaelf in DOMA cases or a black judge from EPC cases. You need a tighter nexus with the case holding and the Justice’s assets.
Scott Pryor - May 28, 2012 at 10:10 pm
I suspect enough Representative are sufficiently close to the financial edge that they wouldn’t vote to impeach a federal judge who files bankruptcy. Doing so might come back to haunt them.
Steven Lubet - May 29, 2012 at 9:10 am
District Judge Thomas Porteous (EDLa) was impeached and convicted in 2010, in part on the basis of perjury in his personal bankruptcy.
http://en.wikipedia.org/wiki/Thomas_Porteous
Regarding recusal, a SCOTUS justice would be disqualified from hearing any individual bankruptcy cases during the pendency of his or her own bankruptcy proceeding. The situation is not the equivalent of a gay or minority judge, because a bankruptcy proceeding is not a personal status. See Aetna Life Ins. v. Lavoie, 475 US 813 (1986).
Bob Lawless - May 29, 2012 at 9:36 am
What is about a personal bankruptcy filing that means the person does not “exude authority and generate confidence?” Is it because the bankruptcy evidences some character flaw? Is it because the bankruptcy suggests a lack of ability or competence? Is is it something else, or a combination of these?
I am not necessarily challenging the assertions people have made. Rather, I am interested in the analyses that are underlying them.
Joe - May 29, 2012 at 9:42 am
The answer would be no unless they have some other “high crime and misdeameanor” in relation to to bankruptcy. Tom Clark resigned to avoid conflict when his son became AG, but he wasn’t required to do so. There aren’t that many bankruptcy cases. Back then, bankruptcy was more serious with debtor prison & he was on the run — he was breaking the law. If he was on the run, I also don’t know how he would be able to do his job (once he went to court, he could be seized). That would be a problem too though a few experts suggest there is doubt that simply not showing up is a HCM.
Moderate - May 29, 2012 at 10:18 am
In some states (e.g., New York), one can fail the character and fitness test for reasons of personal finance.
TS - May 29, 2012 at 2:16 pm
Scott Pryor said “I suspect enough Representative are sufficiently close to the financial edge that they wouldn’t vote to impeach a federal judge who files bankruptcy. Doing so might come back to haunt them.” Under the Senator Blount precedent at least, neither House Representatives nor Senators would appear to be “officers of the United States” within the meaning of the impeachment clauses and accordingly would not not impeachable. The Senate could repudiate the Blount precedent, though.
Leave a Reply