Nixon v. United States – Oral Argument – October 14, 1992

Media for Nixon v. United States

Audio Transcription for Opinion Announcement – January 13, 1993 in Nixon v. United States

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William H. Rehnquist:

We’ll hear argument first this morning in Number 91-740, Walter L. Nixon v. the United States.

Mr. Stewart.

David Overlock Stewart:

Mr. Chief Justice, and may it please the Court:

We challenge in this case Senate Impeachment Rule XI, under which the Senate failed to conduct the impeachment trial of Walter Nixon when it removed him as Chief Judge of the United States District Court for the Southern District of Mississippi.

The constitutional requirement of a Senate impeachment trial means that the accused must have the opportunity to present his case, to present witnesses and to confront witnesses against him before the duly convened Senate, which requires the presence of a quorum of the Senators.

Under Impeachment Rule XI, however, the trial occurred in this case only before a committee of 12 Senators which required a quorum of only 7.

The impeachment trial requirement is important, because it ensures to the greatest extent possible–

Byron R. White:

–I suppose when you call it a trial before 12 Senators.

David Overlock Stewart:

–Well, Your Honor, we do think that the proceeding that anyone comfortable with judicial proceedings would identify as the trial did in fact occur before the committee, and indeed, if you look at Rule 11–

Byron R. White:

Well, that’s what the case is all about, I suppose.

David Overlock Stewart:

–It is indeed.

Byron R. White:

Yes, all right.

David Overlock Stewart:

The Impeachment Trial Clause ensures that the Senate will approach the cases and exercise its ultimate power to remove executive and judicial officers with great care and deliberation.

William H. Rehnquist:

Well, Mr. Stewart, you refer to it as the Impeachment Trial Clause.

It says the Senate shall have the sole power to try all impeachment… you might just as well refer to it as the sole power clause.

David Overlock Stewart:

Well, Your Honor, that certainly has been the position of respondents, that that is the only… that word sole is the only relevant word in the passage, and that word cuts off all review by the courts, but I think that that reading of that word hangs such a tremendous amount on that word that it’s really not defensible.

William H. Rehnquist:

Well, I… you know, certainly that would be a fairly partial way to refer to it.

I think to call it the Impeachment Trial Clause is an equally partial way to refer to it.

You’re entitled to do it, certainly.

David Overlock Stewart:

I’m not trying to be partial here, Your Honor, I am simply trying to demonstrate… to describe it… it does seem to describe an impeachment trial.

Antonin Scalia:

You can be partial.

The other side’s going to be partial, too.

That’s the system we have here.

David Overlock Stewart:

Fair enough.

Antonin Scalia:

It’s all right.

[Laughter]

David Overlock Stewart:

But there are several elements that the trial and other elements of the Constitution require a limited… that limit the power of the Senate in conducting these impeachments.

The Framers insisted that removal, the exercise of this ultimate power, can only be when there’s proof of an offense… a high crime or misdemeanor, treason, or bribery… and a conviction must be based, in the words of the Federalist Papers, on a real demonstration of innocence or guilt.

Another element by which they tried to control the impeachment and removal power was by providing a two-thirds majority had to be present, and another element we think is very important here and brings us here today is that the Senate must conduct the impeachment trial acting in judicial character as a court.

William H. Rehnquist:

Well, Mr. Stewart, do you think the high crimes and misdemeanors language is such that the interpretation by this Court could supersede that of the Senate?

William H. Rehnquist:

In other words, supposing your client were in a position where he had been removed from office but instead of claiming that the trial requirement that you see there had not been met, he said I was not guilty of anything that could be called a high crime or misdemeanor.

David Overlock Stewart:

Yes, Your Honor, I think that could be reviewable, and that the Court has to face up to that.

It’s not presented here, of course, but yes, we do think that would be reviewable here, and maybe it would be useful for me to address directly the question of sole power and the question of reviewability, which we think really the respondents have hung so much on.

An ordinary reading of the clause… the Senate shall have the sole power to try impeachments… sole would simply describe the fact that the Senate has the power to try the case, and no other forum has the power to try the case, and that–

William H. Rehnquist:

What would the language have meant, in your view, if the word sole were not there, if it simply said the Senate shall have the power to try all impeachments?

David Overlock Stewart:

–Well, of course, that’s the way the clause was written as it was initially approved, and it was only in the Committee of Style that the word sole was adopted.

It means that the Senate has the power to determine trial procedures.

Admission of evidence, there are lots of elements of a Senate trial that do not resemble a court trial.

For example, there’s no standard of proof.

The Senate has refused to have a standard of proof, and we don’t think that would be reviewable, but what does remain reviewable is whether there was a trial at all.

Sandra Day O’Connor:

Well, would it be reviewable, in your view, if a quorum was not present at all times, and could a Senator vote ultimately who had not heard all of the evidence, in your view?

I mean, what are you getting… asking the Court to get into?

David Overlock Stewart:

Your Honor, those are two different questions, I think, and let me try to answer them separately.

The question whether a Senator could vote without having heard all the evidence, my answer to that is yes.

All that’s required is that there be a quorum present, and that by definition means you could have as many as 49 Senators not present and those Senators might well vote.

Many Senators in the past have asked to be excused from voting if they didn’t hear the evidence, but there’s no constitutional issue presented.

Your initial question, though, was is there a problem if there as not a quorum present, and my answer to that, I think, has to be yes, that that would be the Senate was not duly constituted.

If it is in the record that the Senate was not duly constituted and the Senate recklessly went ahead with the trial anyway over the objection of the accused, that would in fact be reviewable.

There you would have no trial actually being held before the Senate.

Antonin Scalia:

But you think it is a trial if people who haven’t been present at the proceedings come in and vote.

You consider that a trial.

David Overlock Stewart:

It is a Senate trial as provided in the Constitution, yes.

A Senate trial is–

Antonin Scalia:

I don’t know how you’re drawing the line between the one and the other.

David Overlock Stewart:

–If you look at–

Antonin Scalia:

I thought a trial means you present evidence before someone who then decides, the person to whom the evidence has been presented.

You say that’s not what a trial is.

David Overlock Stewart:

–I have no problem with the proposition that the Framers intended all Senators to be present, but what they provided in the text of the Constitution is that the Senate can conduct its business with a quorum present.

If the Senate is then in that Impeachment Trial Clause to try the case, then it need only have a quorum present.

Antonin Scalia:

You say a quorum present during the trial, right?

David Overlock Stewart:

Yes, sir.

Antonin Scalia:

But it can be a different… your point is, it can be a different quorum.

David Overlock Stewart:

Yes, sir.

Antonin Scalia:

One portion of the Senate can hear the evidence, and another portion vote, and that’s a trial.

David Overlock Stewart:

Surely undesirable from a point of citizenship–

Antonin Scalia:

I know it’s undesirable.

I don’t think it’s a trial.

David Overlock Stewart:

–But yes.

Yes.

Sandra Day O’Connor:

What about this Court, if we exercise original jurisdiction and appoint a master, and we don’t all sit there and hear the evidence.

Have we conducted a trial that fails to meet the Constitution?

David Overlock Stewart:

Those proceedings do not resemble an impeachment proceeding to the extent that they involve stripping an individual of rights.

In that kind of case there is a statutory provision–

Sandra Day O’Connor:

Oh, well, I think they could involve a great many rights… water rights, or one thing and another… that are terribly important.

David Overlock Stewart:

–But there is no provision in the Constitution that provides that the trial must be before this Court in those cases.

The only provision that would be applicable, I think, would be the Seventh Amendment which might well, when you had an individual present, provide a right to a jury, and indeed there is a statute that provides for a jury trial right in those circumstances in this Court.

Of course, it hasn’t been used for many years, but there is that right.

Anthony M. Kennedy:

What would you do if the Senate did not allow the accused official to face and confront the witnesses against him?

David Overlock Stewart:

Your Honor, I’m not sure I completely understand the question.

If the–

Anthony M. Kennedy:

Well, the Senate says you can’t cross-examine any of the witnesses against you.

David Overlock Stewart:

–Your Honor, I think that would not–

Anthony M. Kennedy:

And you can’t be in the room when they’re testifying.

David Overlock Stewart:

–To answer the first question, you can’t cross-examine the witnesses, we state that the irreducible requirement of the trial is the opportunity to present your case, present your witnesses, and confront the witnesses against you, so there would be a right of cross-examination, and you could pose that hypothetical where there is no right of cross-examination, and I would say that is not a trial, but if the issue were one of the scope of cross-examination, that would be one confined to the discretion of the Senate.

Anthony M. Kennedy:

What is the standard?

If you can refer to a word in the Constitution to resolve the issue, then we have jurisdiction, is that about the way it goes?

David Overlock Stewart:

There has to be a specific requirement in the Constitution, and I draw this from Baker and Carr and also from Powell v. McCormack.

If there is a specific requirement like the two-thirds majority vote, like the requirement that the House impeach officers before they face trial in the Senate, if there is that specific requirement, then that is a justiciable question, and that’s one that the courts have to decide.

William H. Rehnquist:

Mr. Stewart, in both the trial of Samuel Chase and the trial of Andrew Johnson there was a great deal of motion being made and demands made for continuance on the part of the defendants, and the Senate insisted in both cases that they be brought to trial much more rapidly than would be conceivable in an ordinary criminal case.

You know, they were given something like 10 days to prepare.

William H. Rehnquist:

Is that something that would be reviewable as an incident of a trial if the claim were made that we simply did not have a fair opportunity to prepare?

David Overlock Stewart:

No, sir, and in those instances as I recall the case was extended for a substantial period of time and there certainly was an opportunity to prepare, but no, I do not think that would be reviewable.

William H. Rehnquist:

Well, would you say that if you’re going to be divested of the office of associate justice or of President that 10 days was sufficient to prepare?

David Overlock Stewart:

No, I would not, an interestingly, I think the Framers imposing the Trial Clause were very wise to impose the Trial Clause, because when you’re dealing with the chief justice or a justice of the Supreme Court or the President, there is a political attention to this which I think will slow down the process in most instances.

You point out instances where it didn’t, but in fact there were partisans for those individuals who attempted to support them and defend their rights.

When you’re dealing with a lower court judge you don’t have those protections.

William H. Rehnquist:

So you would read the Trial Clause differently if you’re dealing with a lower court judge than if you’re dealing with some highly visible official?

David Overlock Stewart:

I don’t mean to say that, Your Honor, no.

What I mean to say is, it simply highlights the importance of the trial when you’re dealing with a lower court judge.

David H. Souter:

You rest your argument on the assumption that the meaning of the word trial is clear.

Would your position be the same if we conclude that the meaning of the word trial in this context is ambiguous?

David Overlock Stewart:

Your Honor, I think to rule in our favor the Court has to conclude that the word try does have meaning and the meaning is as we say that there is an irreducible requirement of an opportunity to present your case and confront your case, and that meaning I don’t think is so elusive when you compare the impeachment clause to other clauses of the Constitution creating powers for the Senate… for example, the power to be the judge of elections.

That doesn’t have any element of confronting witnesses or presenting witnesses.

That’s simply a requirement of a decision.

In this instance, though, try means something else, and I think respondent’s position, in order to rule for them you really have to say that try is the same as be the judge as, and when you look at the history, when the first Senate, which included Framers, had to apply both of these provisions when they were applying the Elections Clause they had evidentiary proceedings before committees, but when they were applying the Impeachment Clause, when they were conducting impeachment trials they did those before the Senate.

That was the common sense understanding of the time, and I think that case casts an important light on the question before the Court here.

David H. Souter:

All right, but if we should disagree with you about the clarity of meaning, do I understand you correctly to concede that the case should… and we conclude that the word is ambiguous, do I understand you correctly to concede that the case should be decided just as it would be as if we were dealing with an issue which the Constitution did not expressly address in any way?

In other words, we would defer by a conclusion of nonjusticiability to the Senate to make the determination and leave it where it is.

David Overlock Stewart:

Your Honor, I think we would lose.

I’m not exactly comfortable as to whether that is a nonjusticiable question or simply we would lose on the merits.

David H. Souter:

But that’s the least of your concerns.

David Overlock Stewart:

Yes, sir.

David H. Souter:

Okay.

Is this part of your argument, that the issue is justiciable?

David Overlock Stewart:

Yes, it is, and I’d be happy to address it, because it seems to me that justiciability, as I was saying earlier, hangs so much on the word sole.

A reasonable reading of the word sole is that it means simply that the Senate has the power to try the case and no other forum does.

It’s not that the word excludes judicial review.

If the Framers intended to exclude judicial review of impeachments, why not do so?

Why not say that the judicial power shall extend to all cases arising under the Constitution except impeachments?

That’s what they did in the Pardon Clause.

David Overlock Stewart:

The Pardon Clause says that the presidential power to pardon shall extend to all cases except cases of impeachment.

Well, the Framers didn’t do that, and that seems very persuasive to us in two respects.

First, they clearly did not choose to exclude judicial review, therefore the ordinary presumption of judicial review, the power of this Court to say what the law is, applies, but by the same token when they didn’t accept this notion that impeachment trial is this island, unreachable by any other entity, that they recognized unless they excluded the President from exercising pardon power, well then, he would have the power to exercise… to pardon individuals who had been impeached and convicted.

Anthony M. Kennedy:

Could the accused official waive the right that you claim is his?

Suppose an official says this is very complicated testimony and I want Senators who can focus on the testimony, and the Senate says we’ll have the evidence presented before a committee of 15 Senators, and he wants that, can he do that and then refer the matter to the whole Senate?

David Overlock Stewart:

Absolutely.

I think any individual can waive a constitutional right, and I think in fact–

Anthony M. Kennedy:

But if you were a Senator I take it you would stand up on the floor of the Senate and say I must point out that this is an unconstitutional proceeding.

David Overlock Stewart:

–If I were a Senator and I objected to that because I wanted to hear the testimony, then I would have the right to go listen to the testimony.

Anthony M. Kennedy:

Well, I think you’d have the obligation to tell your colleagues that they are proceeding in an unconstitutional manner, wouldn’t you?

David Overlock Stewart:

You would have the… you could do so, but no, I don’t think that that is proceeding in an unconstitutional manner, because the right inheres in the individual, and if the individual chooses to waive that right, he certainly has the power to do so.

And indeed, when the Impeachment Rule XI was adopted in 1935, the history of it clearly indicates that the Senate… many of the Senators, at least, thought that this was a right only… that could only be waived, and that it could not be forced to have an impeachment accused go to trial before a committee and not before the full Senate.

In the intervening 50 years before the next impeachment, apparently that understanding was lost.

Byron R. White:

So you really are suggesting we treat this case as though there hadn’t been any trial at all in terms of judiciability.

David Overlock Stewart:

Yes, Your Honor.

There was no trial before the Senate.

That is our view.

And indeed, when you look at what respondents are saying when they have to present their position on the merits of this claim, they propose an extraordinarily artificial concept, that well, the trial happened before the Senate even though all of the testimony and all of the proceedings were before the committee, and that just violates basic concepts of common sense, and its untenable.

And even if you look at the text of Rule XI, Rule XI speaks in terms of either the Senate conducting the trial, the committee conducting the trial, or the Senate shall conduct the entire trial itself.

That’s the last words of the rule.

Antonin Scalia:

Well, when the Constitution gives this Court original jurisdiction in certain matters… those, for example, in which a State is a party, don’t you think that meant that the trial would be before us?

Isn’t that what original jurisdiction meant to the Framers?

David Overlock Stewart:

Your Honor, I’m not sure that I… I think that’s certainly a tenable view, but it is not the use of the word try.

It does not say that the Supreme Court–

Antonin Scalia:

No, it doesn’t use the word try, but doesn’t original jurisdiction contemplate that the trial would be before the Supreme Court, and yet we do exactly what you say can’t be done in the Senate trial.

That is, have a master take the evidence.

David Overlock Stewart:

–I think it may well have been an intent, but it is not expressed, and moreover there is no right to assert except in the case of an individual, that the States cannot assert a Seventh Amendment right to a jury trial.

William H. Rehnquist:

How about an ambassador?

David Overlock Stewart:

I don’t believe so.

William H. Rehnquist:

An ambassador is not an individual, then, in your view.

David Overlock Stewart:

Your Honor, I would have to review the Seventh Amendment again, but I don’t think that is the intent behind that provision.

Let me also comment, though, there is an important problem also with respondent’s position with respect to this… how you read the word try, whether there is content in the word try, because if there is no content in the word try, there is no stopping point to their position.

Then it’s okay to have the trial before a committee.

Then it’s okay to have the trial before a single Senator, or it’s okay, as the Senate argued below, to have simply a paper trial where you just introduce a transcript and have the Senate vote, and that begins to look very much like a proceeding that the framers expressly rejected.

It was a very important event at the end of the… towards the end of the constitutional Convention, when John Dickinson proposed that there be removal of judges by address.

It’s an English proceeding which also had been incorporated in a couple of State Constitutions.

In removal by address there is no requirement of an accusation or that there be some claim of offenses, or that there be a trial.

It’s simply a petition presented to the legislature that this judge be removed, and when he presented this proposal the delegates were very negative about it.

Edmund Randolph of Virginia said that it would weaken the independence of judges.

James Wilson of Pennsylvania protested that this would make judges subject to every gust of fashion, so they clearly intended that this be a true trial proceeding, and removal by address was rejected, and I think once this Court adopts or permits the Senate to adopt the short cut that has been adopted here, there is no stopping point.

Antonin Scalia:

Well, that doesn’t necessarily follow.

I mean, I can agree with you that the word trial has to have some content, but I can disagree that we are the ones to enforce it.

I mean, can I believe it has indeed a content but it’s up to the Senate to assure that that content has been faithfully complied with?

David Overlock Stewart:

Your Honor, I think that comes back to the question of is it the Senate’s sole power to decide what is the content, or is it this Court’s power to say what the law is, to construe the law, and I think an impeachment, just as in questions of the viability of a commission to be a magistrate of the District of Columbia, this Court must exercise jurisdiction, must review the question in the absence of anything that denies jurisdiction or in the absence of any indication that there are no judiciable standards to apply.

Antonin Scalia:

Well, you are running a slippery slope kind of an argument… if trial doesn’t mean anything, where does it end?

The slippery slope goes down the other side of the hill, too, doesn’t it?

If we say that the trial does have a content, then we have to begin to decide what other things are connected with trial.

There are all sorts of imaginable things that trial ordinarily entails.

Are we going to be reviewing all of those?

David Overlock Stewart:

No, Your Honor, I don’t think so, because we have attempted to provide the line we think needs to be applied here, which is the trial is the opportunity to present witnesses and to confront witnesses.

It is not–

Antonin Scalia:

And what if–

David Overlock Stewart:

–Excuse me.

Antonin Scalia:

–What if there’s a mistake made so that one element is not there?

Is the whole thing automatically invalid, or is there some harmless error concept?

David Overlock Stewart:

I don’t understand.

A mistake–

Antonin Scalia:

You know harmless error.

David Overlock Stewart:

–The admission of hearsay–

Antonin Scalia:

Well, whatever.

Antonin Scalia:

Let’s assume at one brief portion, when very unimportant evidence was being presented, it dropped below a quorum.

That invalidates the whole proceeding, or is there a harmless error rule?

David Overlock Stewart:

–Your Honor, I think there has–

Antonin Scalia:

Now, if you say there’s a harmless error rule, I’m going to say, well then we have to evaluate the weight of the evidence, don’t we?

So you better not say that.

David Overlock Stewart:

–I wasn’t going to say that.

[Laughter]

Antonin Scalia:

So there’s no harmless error rule at all.

David Overlock Stewart:

I appreciate being helped.

Antonin Scalia:

The slightest mistake, and the whole thing goes out.

David Overlock Stewart:

Well, that’s like if there was a two-thirds requirement and they’re only one vote short of two-thirds, does this Court say well gee, they were awful close?

I don’t think so.

I think you have to apply the constitutional requirements that are there.

William H. Rehnquist:

What about applying the confrontation clause to the admission of hearsay… you know, various exceptions to the hearsay rule?

Is that challengeable on the grounds that the Senate improperly applied the hearsay rule?

David Overlock Stewart:

No, Your Honor, I do not think that admissibility questions like that, whether… one of the impeachment trials in 1986 involved papers that were… the argument was that they were improperly seized.

William H. Rehnquist:

But failure to allow cross-examination is raisable in your view.

David Overlock Stewart:

I think that is the irreducible requirement, yes, sir.

William H. Rehnquist:

What about an undue shortening of cross-examination?

David Overlock Stewart:

Your Honor, that is the point at which you would have to have a court look at the question.

I think in almost all instances it would not be reviewable, but you could pose a hypothetical where you’re given 30 seconds of cross-examination… you could pose that hypothetical to me and I would have to say that is not a trial.

And I want to emphasize here that we really are talking about very few provisions of the Impeachment Trial Clause, or the impeachment clauses generally, that would be reviewable: the two-thirds majority, the requirement that the chief justice preside over presidential impeachments, and the requirement of the trial.

Antonin Scalia:

The two-thirds majority, you would have witnesses in the chamber who would… I mean, is it only what… you said before, if it appears in the record that there is not a… why does it have to appear in the record?

Couldn’t you have witnesses come in with affidavits saying I was there, and although nobody in the Senate asked for a quorum call, there was not a quorum?

Wouldn’t we have to accept that?

Why does it have to be in the record?

David Overlock Stewart:

Well, no, I think there would be certainly be an obligation on defense counsel to call to the attention of the court… the Senate–

Antonin Scalia:

Right.

David Overlock Stewart:

–As a court that there is the absence of a quorum.

Antonin Scalia:

Yes, but the Senate ignores it.

Antonin Scalia:

The presiding officer–

David Overlock Stewart:

If the Senate is so reckless as to ignore it, and it is stated–

Antonin Scalia:

–Then you’d come to us with your affidavits and say there was not a quorum.

David Overlock Stewart:

–We state it on the record, yes, sir.

Antonin Scalia:

And we’re going to judge whether there was a quorum in the Senate on the basis of affidavits provided by your witnesses.

David Overlock Stewart:

One of the virtues of the video age we’re in is that the Senate proceedings are now televised.

There would be wonderful evidence as to whether there was a quorum present.

But yes, if the quorum clause is to be enforced, it would have to be reviewed by the Court.

Anthony M. Kennedy:

Well, actually, you don’t come to us, you come to the district court–

David Overlock Stewart:

Yes, sir.

Anthony M. Kennedy:

–And then to the court of appeals, and then to this Court, and in the case, say, of an impeachment of the President, that could go on easily 21/2 years, I should think, probably 3–

David Overlock Stewart:

Your Honor, that’s–

Anthony M. Kennedy:

–And I think you ought to address the argument that the Solicitor General makes that this would put this Nation at grave risk in the event of an impeachment of the President that was winding its way through the courts on judicial review.

David Overlock Stewart:

–Your Honor, you pose a very difficult question.

Indeed, it would leave this Court having to choose which constitutional crisis is more desirable… to have a President removed by unconstitutional means, or to have a period of some ambiguity, admittedly, while that’s resolved by the Court.

It could be resolved with dispatch.

The Pentagon Papers case took, I believe, 19 days from publication until the decision by this Court.

It would have to be resolved with dispatch.

But if–

Anthony M. Kennedy:

But it’s not just the delay.

It means that judges, some of whom have been appointed by the President who’s being impeached will be involved in the process and the integrity and the independence of the court may come into question, which would cause severe damage to the courts as an institution over time.

David Overlock Stewart:

–Your Honor, I think the most pernicious effect on the Constitution and on the history of this country would be if this Court would simply… and the courts in general simply avert their eyes from an unconstitutional impeachment and surely an unconstitutional impeachment–

Antonin Scalia:

Mr. Stewart, don’t you think that Framers who had enough foresight to provide for original jurisdiction by this Court in cases involving ambassadors, in cases involving the States, would also have had enough foresight to provide for original jurisdiction by this Court if they thought that the courts were being able to review at least impeachments of the President?

But it doesn’t appear in the Original Jurisdiction Clause.

This problem you’ve just been discussing with Justice Kennedy is an obvious problem that anyone would consider, wending its way up to the Supreme Court, impeachment of the President.

It would have been in the original jurisdiction of this Court, wouldn’t it?

David Overlock Stewart:

–Your Honor, I don’t think so.

I think that it would involve the interpretation of a constitutional provision as to which the ordinary processes of judicial review would reasonably be applied, and again, I would turn back to the Pardon Clause.

The failure to exclude judicial review seems to us extremely articulate here and important for the construction of the clause.

I would ask to reserve the balance of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Stewart.

General Starr, we’ll hear from you.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

Rule XI of the United States Senate was adopted in 1935.

That rule permits but it does not require the appointment of a committee for a limited function of gathering evidence, and in crafting that rule the Senate was responding to its own experience, because with the growth in that body’s responsibilities, at times evidence was being presented before a virtually empty Senate chamber.

In fashioning that rule, the Senate was exercising a power that was entrusted to it by the Constitution… by Article 1, section 3, clause 6… which vests sole power in the Senate to try all impeachments.

Anthony M. Kennedy:

Are the committee hearings part of the trial?

Kenneth W. Starr:

Yes.

Anthony M. Kennedy:

Then I take it if the President were impeached and a committee was sitting the chief justice would preside over the committee.

Kenneth W. Starr:

It is very possible that that would be the case, but I think–

Anthony M. Kennedy:

Well, he would have to if it’s part of the trial, wouldn’t he?

Kenneth W. Starr:

–I think that is quite arguably the case, Justice Kennedy.

I do think, by the way, that the Senate would see fit not to use that procedure with respect to the impeachment of a President or a justice of this Court, and again, I think it’s important to know where did this rule come from and why?

It was first suggested in 1904, based on experience, a sense on the part of… a felt sense on the part of Senators, some of whom had served in the House of Representatives, had been impeachment managers themselves, and who were sharply critical of the way in which the process was now working.

And certainly that has been of concern to the Senate since, in 1985, we had the spectacle of a United States district judge who had been duly convicted of a crime, that conviction had been affirmed on appeal, and a suggestion had been made by the Judicial Conference of the United States that impeachment might be appropriate.

We have had, unfortunately, three impeachments in recent years, and the Senate has been concerned, therefore, about the orderliness of the proceedings and yet the fairness of the proceedings.

Antonin Scalia:

But General Starr, when that rule was adopted in 1904 according to your opponent here it was contemplated that it would be voluntary on the part of the person being impeached, and indeed, maybe many of them would prefer to be tried by 12 Senators who were there than by 100 who weren’t, so one can see why that would have some attraction.

Kenneth W. Starr:

Justice Scalia, it’s fair to say that the Senate was not of one mind with respect to the constitutionality of Rule XI.

There were clearly some Members of the Senate who thought this was improper, and I think, by the way, that’s one of the redeeming aspects of this.

The Senate has taken this very seriously, has examined the constitutional questions very seriously, and it is true that, as Mr. Stewart has noted, that Senator Ashurst, the chairman of the Judiciary Committee in 1935 expressed that view, that he contemplated that it would be an optional procedure, but other Senators didn’t agree with that, and that certainly is not what the rule itself contemplates.

It’s the judgment of the Senate as to whether it’s appropriate or not, and particularly given here, in the modern age, where… and this was referred to by Mr. Stewart… we now live in the age where proceedings are videotaped.

These were videotaped.

They were broadcast live, and a full transcript of the proceedings was made available to all of the Senate, and then… this, I think, in terms of what happened here, the argument has thus far been at the level of the abstract.

Let me, if I may, make one very concrete point.

Judge Nixon appeared before the entire United States Senate.

He answered questions before the entire United States Senate.

He faced them as his judges.

They are not jurors.

They are Senators who remain Members of the United States Senate who take a constitutional oath and who sit in judgment, and he and his able counsel argued evidentiary points.

And at no point in those proceedings while their motion for a full trial was there… there was no waiver of that.

Kenneth W. Starr:

I’m not suggesting this.

But in terms of what happened in these proceedings, not one word was mentioned with respect to invoking that part of Rule XI which permits the Senate to bring specific witnesses before them.

In fact, to the contrary.

One of the characters who appeared in this unfortunate drama was a lawyer in Hattiesburg named Carroll Ingram.

In his closing argument, Mr. Stewart said, look at the videotape of Carroll Ingram.

you will believe Carroll Ingram.

The Senate sat there with the quorum, with great dignity, asking questions through written questions promulgated by the presiding officer.

Not once was the United States Senate urged to bring a specific witness.

In fact, the argument presented to the United States Senate in this case was, we want you to go through this mountain of materials, and you will see so many contradictions and testimony by various and sundry witnesses that the case against Judge Nixon falls apart.

Let me come back to the theoretical point.

The theoretical point is what impeachment means.

We don’t rest our submission on sole power to try.

We think that is indicative of the Framers’ intent, but our submission rests in part on the structure of the Constitution itself and what impeachment means, as well as the fact that the end result of impeachment of an officer of the executive branch or an officer of the judiciary is a judgment.

And the Constitution by its terms contemplates, says that the President, Vice President and all civil officers shall be removed upon conviction.

As Justice Kennedy put it, how unthinkable it would be for the conviction of a President of the United States to then be subject to judicial review.

The text itself contemplates finality, but more than that, when we go back to the framing we know that what was in the minds of the Framers was a process of checking the civil officers of Government outside the Article I branch.

Antonin Scalia:

Well, we could issue a stay pending appeal, General Starr, I guess, right… a stay or removal pending appeal, or something like that?

Kenneth W. Starr:

You have the raw power to do that, but I don’t think that it would be a constitutional act.

Antonin Scalia:

Who would we direct that to, the Senate?

Kenneth W. Starr:

It seems to me–

Antonin Scalia:

I assume the removal is automatic.

The Senate doesn’t do the removal.

It occurs by virtue of the Constitution.

Kenneth W. Starr:

–I think that is right, because the judgment is what removes.

What happened here was, Judge Nixon sued several individuals, but they carry on administerial functions in this connection… the Secretary of State, the recipient of the document, and so forth.

He has not asked for that sort of injunctive relief, and so yes, I think while it is theoretically possibly, it is unthinkable that the Court would actually issue a stay of the–

Antonin Scalia:

I notice in the recent district court there has been a district court judgment reversing an impeachment of another judge–

Kenneth W. Starr:

–Precisely.

Antonin Scalia:

–And the end of the judgment was that the case is remanded to the Senate.

Kenneth W. Starr:

That is correct.

Kenneth W. Starr:

In that particular instance, the district judge saw fit to stay his own judgment.

We think that was quite wise of the district judge–

[Laughter]

But it does suggest that with a large judiciary, not only, unfortunately, are impeachments going to now happen with greater regularity than in our first two centuries of existence… we have about 800 Article III judges.

Does this represent a threat to judicial independence, the use of this committee proceedings?

I say with all respect that no one who has made a study… and I’ve watched all the videotapes, I’ve watched the entirety of the proceeding, and I don’t think that anyone who watches those proceedings will come away with the sense at all that this proceeding represents a threat to judicial independence.

John Paul Stevens:

May I ask, General Starr, do you think the Senate or the House could have impeached a judge and merely recited the fact that he had been convicted of a crime and that was the ground of impeachment and then the evidence of that be sufficient before the Senate to remove him?

Kenneth W. Starr:

Yes, I do–

John Paul Stevens:

So you think all of this was process and may not have even been necessary.

Kenneth W. Starr:

–I think it was not necessary, but I think, Justice Stevens, that clearly a majority of the Senators did feel… and I know Mr. Stewart’s position is that there is a constitutional right to a separate proceeding that must involve a sense of what the evidence was in the case, and that’s the sober judgment of the Senators.

And one of the points I would like to leave the Court with today is that one of the reasons that the Senate has been sober in its judgment is its sense that this is it, this is the end of the road, this is our judgment.

They take that responsibility quite seriously.

Byron R. White:

–you say the Senate would have the power just to impeach based on a criminal conviction.

Kenneth W. Starr:

To convict.

If there are articles… we do agree that there must be articles of impeachment presented, exhibited to the Senate, but once that is done, yes, Justice White, they have the power to do that, and some Members of the Senate have expressed the view that no one should remain sitting on the Federal bench who’s been duly convicted of a felony.

Others have said, well, but look, Senator Mathias in some reflections in the mid-1980’s said there are some strange felonies on the books.

In Idaho, it is a felony to poison a neighbor’s cat.

Perhaps that would not be automatic… but this was obviously a serious matter.

Judge Nixon feels that this entire proceeding was wrong-headed, was vexatious, was unjust, but those points were presented to the courts, were exhaustively examined by the courts, and were exhaustively examined by the House of Representatives, as reflected by the statements of the floor manager, the impeachment manager, Representatives Edwards, who said he was concerned about possible Department of Justice misconduct.

They examined carefully whether there had been misconduct and found no evidence of it.

That was the same result found in a 2255 proceeding after a 2-day hearing in Jackson, Mississippi.

Antonin Scalia:

That may well be, General Starr.

You know, it was all very good in this case, but you’re really arguing before us that it really doesn’t matter whether it was very good or not.

Kenneth W. Starr:

That’s correct.

Antonin Scalia:

They could have impeached him for poisoning a neighbor’s cat–

Kenneth W. Starr:

That is correct.

Antonin Scalia:

–And called that a high crime and misdemeanor and you’d say that’s good enough for you–

Kenneth W. Starr:

That’s correct.

Antonin Scalia:

–And there could have not been a quorum present.

If there was no quorum present, would we be able to review it–

Kenneth W. Starr:

We’d have to accept… I think this Court’s decisions in Ballin and Field v. Clark say we accept the records of the Senate.

We do not impeach those records–

Antonin Scalia:

–Suppose it’s clear on the records of the Senate that there was not a quorum present?

Kenneth W. Starr:

–I think that the judgment still stands.

I think we are moving closer to the–

Sandra Day O’Connor:

What if–

Kenneth W. Starr:

–Possible arena of Powell v. McCormack.

Sandra Day O’Connor:

–What if the record shows that there was not a vote of two-thirds of the Senate to convict?

Kenneth W. Starr:

We think that as long as the records themselves are being accepted, that it does seem to us that we are in the arena of Powell v. McCormack at that stage.

That was part of the insight of Powell, and Powell’s looking to the text but looking to more than that, looking to the history of the text and to understand the intent of the Framers, and that two-thirds majority requirement is very important in the opinion of the Framers for the very reason that this was to be a very considerable check by the United States Senate on the House of Representatives that might get carried away.

Sandra Day O’Connor:

So in your view that might be justiciable.

Kenneth W. Starr:

Yes.

Sandra Day O’Connor:

Is the claim before us today… should we treat it as nonjusticiable, or just committed by the text to the discretion of the Senate?

Kenneth W. Starr:

The former because of the latter, that the text itself, when we also contemplate the structure of the Constitution and the purpose of impeachment in our system of separated powers, that it does satisfy, it seems to us, at a minimum two of the criteria laid down by this Court in Baker v. Carr, a textual commitment to the Senate.

Why do we say that?

The reason we say that is because the grant of the sole power to try in our judgment carries with it the power to determine the procedures that will be employed.

That’s a… it’s not expressed, I concede that–

Anthony M. Kennedy:

So you do want us to rule that the question of the meaning of trial is textually committed to the Senate.

Kenneth W. Starr:

–Yes.

Anthony M. Kennedy:

You do want us to rule–

Kenneth W. Starr:

Yes, we do, but even if… and this Court has struggled, as have we and others, with the political question doctrine.

I also commend to the Court’s careful attention Judge Randolph’s concurring opinion in which he says, political question doctrine difficulties aside, Louis Hinken and all that, what I see when I read the entire text is a commitment that as a matter of constitutional interpretation there is no role for the Court to play with respect to what procedures should be employed.

Anthony M. Kennedy:

–That leaves open the two-thirds vote, the quorum and all those other issues, for future litigation, then.

Kenneth W. Starr:

It does indeed.

It seems to us that when we look at the entirety, that full paragraph of clause 6, there are three procedures that are enumerated.

A violation of one of those enumerated procedures brings us, in our view, into the domain contemplated by this Court in Powell v. McCormack.

We have not challenged Powell v. McCormack, so if there is a violation of one of those procedures, it seems to us that is a justiciable claim, but the claim here is a very limited one.

All of the evidence should have been adduced, no matter how detailed, about… Wiley Fairchild’s drinking habits and listening to Hank Williams Sr. music should all be laid before the full Senate, day after day after day.

That’s the claim, and that, we think, is a judgment that the Senate can take into account in determining whether to employ Rule 11, but recall again, Rule 11, not only is it not obligatory, but after the committee has worked its will, the committee itself… and several members of the committee did, by the way.

Senator Heflin served on the committee, and when the issue came, when Judge Nixon said, I want my motion for a full trial heard before the United States Senate, it was overwhelmingly rejected by the Senate, but several Members of the committee voted in favor of that.

Kenneth W. Starr:

These are judgments, and judgments are going to differ just as they do on this court, but it’s a sober and a solemn judgment, and one of the reasons is, is because it is a final judgment.

That’s what–

Byron R. White:

I suppose that at least what the Senate… the procedure the Senate might adopt, I suppose they would have to call it a trial, wouldn’t they?

Kenneth W. Starr:

–It seems to me… they might have to call it a trial in one sense, but Justice White, here’s the reason I’m struggling with that.

I think the word try meant something different to the Framers.

We’ve cited–

Byron R. White:

Well, whatever it meant, they have to be able to… they have to fit it within the word try.

Kenneth W. Starr:

–They have to fit it within the word try.

Now, what did the Framers mean by try, and we have given to the Court the 1755 Samuel Johnson dictionary… to examine or to examine as a judge… and just as this Court examines as a judge in original cases by having a special master do, by the way, considerably more, and you don’t appoint one of your own members as the special master, you have appointed either a retired judge or even someone who has never exercised Article III powers as a special master.

Byron R. White:

So if the Senate has a rule… had a rule that anyone who’s been convicted, any Federal officer who’s been convicted of a felony, and the judgment is final, we just automatically… he is automatically guilty.

All it needs is to have the court record before it, and the show is all over.

Is that trying?

I suppose it is to you, as far as you’re concerned.

Kenneth W. Starr:

Because you use the word automatic, it concerns me as to whether there, Justice White, is that examination as a judge.

The application… and it does seem to me… and Mr. Stewart does have a point that there must be an individualized judgment in an impeachment, and if the Senate says we’re so tired of all these impeachment that here’s our automatic rule.

You’re out if you’ve been convicted of a felony, and we’re not going to listen to anything at all.

Byron R. White:

So if they did that, that in your view would be judicially reviewable.

Kenneth W. Starr:

It might be in terms of whether there was an examination at all, whether the Senate was examining as a judge, but it might be.

It is totally unthinkable… and I don’t think that in any way takes away from the integrity of our submission that the procedures, the specific procedures that are going to be used in coming to judgment, as opposed to an automatic rule that you are automatically divested of office, but the procedures that are used in coming to judgment we think has been textually entrusted to the Senate, and for good reasons… for the reasons of finality as well as the structural.

David H. Souter:

And those procedures that you refer to as having been entrusted to the Senate are in other words those which are not necessarily implied by the word trial itself.

Kenneth W. Starr:

That’s correct, because as we’ve noted in our brief, Rufus King, one of the delegates who also served on the Committee of Style, referred to the President and members of the legislature being tried by their electors–

David H. Souter:

What if we took–

Kenneth W. Starr:

–A judgment… I’m sorry.

David H. Souter:

–I’m sorry.

What if we disagreed with you on the 18th Century sense of trial which was incorporated into the text?

What if we concluded that in fact trial did require the actual presence of the finders of fact during the reception of all of the evidence and we so defined the word try in the impeachment clause?

Would you then find… would you then concede that the failure to follow that procedure which was implied by the very notion of trial was judiciable?

Kenneth W. Starr:

If I concede that… I’m sorry, I’m not sure I follow the language.

David H. Souter:

Would you concede that we would have a judiciable… the courts would have a judiciable controversy here if, 1) we concluded as a matter of law the trial implied the reception of evidence directly by the findings of fact?

Kenneth W. Starr:

No.

Kenneth W. Starr:

No, I’m sorry.

David H. Souter:

You would not concede that.

Kenneth W. Starr:

I would not concede that, because it seems to me that… and now I’m going to be formalistic, and that is I’m going to rely on the sole… the grant of that sole power to try, it seems to me, carries with it the interpretive power to determine what the procedures are going to be.

David H. Souter:

But–

Kenneth W. Starr:

But… sorry.

David H. Souter:

–Why, then, don’t you say the same thing with respect to the interpretive power to determine what is a two-third majority?

Is it the difference between an issue of law and an issue of fact that leads to different answers?

Kenneth W. Starr:

It seems to me that we are in two structurally different domains.

What we know of the decision of the founding laws is that this was the body, the numerous court that would hear–

David H. Souter:

Right.

Kenneth W. Starr:

–And sit in judgment.

David H. Souter:

Could I just short-circuit this, maybe make this simpler–

Kenneth W. Starr:

Yes.

David H. Souter:

–Than I started out to make it.

You concede that if the Senate records showed that there was less than a two-thirds majority, that there would in fact be a justiciable issue on declaratory judgment.

Kenneth W. Starr:

Yes.

David H. Souter:

Now, do you concede that because that is an issue of fact which is easily resolved?

Kenneth W. Starr:

No.

David H. Souter:

Why?

Why do you concede that?

Kenneth W. Starr:

No.

The reason we concede that is because of the structure as we understand the law to be, and that is, under Powell v. McCormack, we look, as the Court did… may I say just a word about Powell?

Powell said, we have this term, qualifications.

What does that mean?

The House of Representatives has come up with its own view.

We have difficulty with that, Powell v. McCormack said, because we see that there’s a specific definition in the Constitution, and more than that, we go to history and we understand that in terms of democratic theory it was very important for that definition in the text of the Constitution to be it.

The House could not go beyond that, beyond that text.

Here it seems to us that when we look at the text as a whole the two-thirds requirement was viewed as critically, pivotally important at the founding in terms of protection of civil officers against abuse.

David H. Souter:

So it’s a difference in emphasis, then.

Kenneth W. Starr:

It’s the fact–

David H. Souter:

If, for example… if I varied my example and said trial not only means the… not only requires the presence of all the fact-finders but they had said trial, parenthesis, at which of course all Members of the Senate will be present, end paren, you would find there had not been such a commitment to the Senate simply by virtue of the emphasis on that requirement and the need to enforce it somehow beyond the Senate itself.

Kenneth W. Starr:

–You’re using the term emphasis, and without trying to quibble, I’m trying to say, Justice Souter, that I am emphasizing the fact that the text itself specifically defines what the majority is.

It’s not five-eighths, its two-thirds.

The text answers that, and Powell v. McCormack says this Court can and should vindicate that.

The real analogy would be, therefore, if exactly the hypothetical you posit existed in the text.

Mr. Stewart’s difficulty is the text does not yield up an answer to the question of what does it mean to try.

We have sought to divine its meaning by going back to 18th Century materials, but the text doesn’t yield up the answer, and if the text itself doesn’t yield up the answer, there is more than one way to go about a trial, thus, the use of special masters is a way to go about a trial.

The use of United States magistrates is the way to go about a trial.

The Article III officer does not necessarily have to be there for the taking of all evidence, and by the way… may I make this point +/?

Mr. Stewart found it very difficult, and I think he is finding it difficult here today, to create this image, the perfect set of a fact-finding body.

In his colloquy with Justice Scalia, he admitted that they do not sit as jurors, as fact-finders in that sense.

William H. Rehnquist:

General Starr–

Kenneth W. Starr:

Yes, I’m sorry.

William H. Rehnquist:

–Supposing that during an impeachment trial of the Senate the chief justice dies, and the Senate says well, there’s by statute created the office of vice chief justice.

We’re going to let him preside, because it would just be catastrophic to wait for the appointment of a chief justice while this impeachment is pending.

Kenneth W. Starr:

This is the impeachment of the President.

William H. Rehnquist:

The impeachment of the President.

Can the Senate not do that because of the specific language the chief justice shall preside?

Would that action by the Senate followed by the presiding by the vice chief justice be judicially reviewable?

Kenneth W. Starr:

It seems to me that under our theory I have to admit that if the chief justice, whoever it be, he or she, the acting chief justice is not in the Chair, then that is judicially reviewable.

Antonin Scalia:

You have to admit–

–General Starr, do you think this question of reviewability is a front-end jurisdictional question?

Kenneth W. Starr:

I think it is a most appropriate first question–

Byron R. White:

Well, I know, but–

Kenneth W. Starr:

–To answer, and yet–

Byron R. White:

–Jurisdictional?

Kenneth W. Starr:

–I don’t think it divests you of… I think you have jurisdiction, obviously, to decide that, but the most–

Byron R. White:

So you think it would be proper to say, well we assume judiciability without deciding it, but we think the Senate clearly had the power to do what it did.

Kenneth W. Starr:

–It seems to me that while you’re not drained of jurisdiction to do that, in terms of the appropriateness of the exercise of the judicial power, if in fact the matter has been entrusted to another branch, then it seems to me that it is part of your duty to resolve that question first as opposed to saying that is such a difficult question, but it’s actually easy for us when we move to the merits to say this is a perfectly sensible procedure.

I do think that it is the Court’s obligation to wrestle with the judiciability question as to whether it’s appropriate for you to examine the merits of what the Senate did.

Antonin Scalia:

General Starr, if I understand your theory, you’re quite right trial does not have a precise content, but surely it has some content.

I mean, there’s something that it’s just not a trial.

Let’s say we refuse to hear a whole bunch of relevant evidence because we’re too busy, we don’t want to waste any more time.

Now, that’s… is that a trial?

Kenneth W. Starr:

Yes.

Antonin Scalia:

What if you refuse to hear to hear all evidence, you just don’t let the defendant put on any evidence at all.

Is that a trial?

Kenneth W. Starr:

Yes, it is, under–

Antonin Scalia:

What is not a trial, in your view?

Is there anything that is not a trial?

Kenneth W. Starr:

–I suggest a difficulty with the automatic rule that we’re not going to consider anything at all because we have an automatic rule which we’re going to apply, because it does seem to me that the term try means that you’re coming to judgment, but yes, if you–

Antonin Scalia:

I think it’s an artificial system you’re setting up when you say two-thirds has a meaning and chief justice shall preside has a meaning, oath or affirmation has a meaning, but trial has no meaning whatever.

I agree it doesn’t have a precise meaning, but it has some meaning.

Kenneth W. Starr:

–I think it does… I’m sorry, in the abstract, of course it has meaning, but who’s going to give content to the meaning in our view is the Senate.

Antonin Scalia:

At the margins.

Everybody will agree that a certain thing is not a trial.

We refuse to hear any evidence.

Kenneth W. Starr:

But Justice Scalia, my point is this.

Even though you as a judge, as a justice, do not agree with the Senate’s definition, our point is it’s their power to decide, and even though you say, gee–

Antonin Scalia:

I may agree with that, but I would say the same about the chief justice presiding, about the two-thirds, and all the rest of it as well.

Kenneth W. Starr:

–Well, that’s fine, if you want to view that as nonjudiciable, that’s fine.

[Laughter]

We have not submitted… we have not in any way–

Antonin Scalia:

Well, I just don’t see any logical basis for drawing a line between the two.

Kenneth W. Starr:

–If I may say so with all respect, that may be the difficulty that you’re having with Powell v. McCormack as opposed to our submission.

Anthony M. Kennedy:

If you say… if that’s the operative word that you say the Senate must construe, I take it then you don’t rely on sole power.

Your argument would be the same if it said the Senate shall try.

Kenneth W. Starr:

Absolutely.

It has been entrusted to the Senate, for reasons that go beyond the text and include the structure and the purpose of impeachment.

Byron R. White:

So the House could impeach saying the judge is a bad guy and the Senate could take a vote without any trial or anything else and say… they unanimously say the judge is a bad guy.

Kenneth W. Starr:

Justice White, my theory has to… leads me to answer that question yes.

Byron R. White:

Yes.

Kenneth W. Starr:

But will you permit me also to say that will not happen, and we saw that, by the way, in 1986, when there was a hue and cry by virtue of the decision of the 11th Circuit in the infamous Allday case, and thoughtful consideration was given by the House of Representatives… I’m sorry.

I thank the Court.

William H. Rehnquist:

Thank you, General Starr.

Mr. Stewart, you have 3 minutes remaining.

David Overlock Stewart:

Thank you, Your Honor.

If I might address only a couple of points, quickly, I’m puzzled by the statement by General Starr that the Senate does not sit as a jury.

Counsel for the Senate, whose… he’s co-counsel in this matter, and whom he represents here today, told the Senate in May of 1989 that it sits both as a jury, as a judge.

That’s in the record, and it seems to me that is unavoidable in this case that the Senate sits as a jury.

I’d like to also address a final point to Justice Kennedy’s question on the presidential impeachment.

I would commend to the Court the Twenty-fifth Amendment, which does talk about what you do in a situation where there is a problem with removal of the President.

I would agree, the removal of the President by the Senate, even inappropriate or unconstitutional removal, means he is no longer President, but there is an opportunity for that to be remedied in the courts, and it does create unwarranted and unhappy ambiguity, but the Twenty-fifth Amendment contemplates that in the case of presidential incapacity.

There’s weeks when the Congress can review that issue.

That ambiguity will proceed.

We don’t embrace it, we would lament it, but neither can the Court shrink from deciding the constitutional issue that would be presented.

Finally, I would say that it is–

Antonin Scalia:

Mr. Stewart, I suppose after these arguments are over the nine of us could go in the back room and just flip a coin or draw straws as to how the decision should come out and it would be promulgated.

That would be wrong.

It would be unconstitutional.

Who would reverse us for that?

[Laughter]

David Overlock Stewart:

–That is not reversible, Your Honor.

Antonin Scalia:

It is not reversible.

So it is theoretically possible that a branch of Government may do something that is wrong, that is even unconstitutional, but that just can’t be reversed.

David Overlock Stewart:

And of course, Your Honor, we’re not saying that the Senator’s reasons for voting are subject to review by this Court.

If the Senator is voting to impeach a female judge because she’s a woman and that Senator doesn’t think women should be on the bench, well of course, that’s not reviewable.

Antonin Scalia:

But you’re saying they can’t draw straws or flip a coin, but we can.

David Overlock Stewart:

We are not going to the decision.

They can reach their decision how they want, but they have to have a trial.

David Overlock Stewart:

That’s what the Framers wanted.

They knew… they were familiar with the caprice of human nature and they were familiar with capricious legislatures and they knew they couldn’t control them, but what they did provide was that there had to be a trial and a procedure that would lead to a real demonstration of guilt or innocence and hope to lead them to be responsible legislators.

Antonin Scalia:

The issue is somebody has to be trusted as the last word, isn’t that the simple issue?

Is it going to be this Court, which may flip a coin… we can act unconstitutionally, just as the Senate can.

The only issue is, who is going to have the last word and be unreviewable, and you say it must be us, and the other side says it must be the Senate in impeachment.

David Overlock Stewart:

If I may answer the question–

Yes, you may.

David Overlock Stewart:

–I think not only do I say it must be you, but in fact General Starr has clarified that point by saying it must be you when it’s a two-thirds vote, and it must be you on other provisions, and the only issue here is whether we really have presented a right to be enforceable.

Thank you.

William H. Rehnquist:

Thank you, Mr. Stewart.

The case is submitted.