Impeach Douglas?

With the air of Carry Nation axing a saloon, House Republican Leader Gerald Ford last week launched a crusade to expel Justice William O. Douglas from the Supreme Court. Most observers assume that Ford wants to impeach Douglas as a reprisal for Richard Nixon's two Senate defeats in the Haynsworth and Carswell cases. Legal scholars doubt that Douglas' unconventional views and behavior come remotely close to grounds for impeachment. But Douglas is vulnerable to criticism on many grounds.

In a 90-minute House speech, Ford reviewed Douglas' nine-year association with the Albert Parvin Foundation, which aids students from underdeveloped countries but had links to Las Vegas gamblers. Though Douglas resigned from the foundation last year and has denied any knowledge of underworld connections. Ford charged that he had improperly given Parvin legal advice while on the court. Ford mentioned Parvin links to Bobby Baker, thus implying the same for Douglas. He scored the Justice's affiliation with the "leftish" Center for the Study of Democratic Institutions. He also expressed outrage at the most recent of Douglas' 30 books, Points of Rebellion, saying that it gave "legitimacy to the militant hippie-yippie movement." Ford observed that he was infuriated chiefly because excerpts of the book appeared in the current issue of Evergreen magazine. They were preceded by photographs of nudes that Ford called "hardcore pornography," and took pains to show to his ogling colleagues during his speech.

Inviting Criticism. Douglas' 97-page volume is a broadside. "Violence has no constitutional sanction," he writes, "but where grievances pile high and most of the elected spokesmen represent the Establishment, violence may be the only effective response." England's King George III, Douglas continues, was "the symbol against which our founders made a revolution now considered bright and glorious. We must realize that today's Establishment is the new George III. Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is also revolution." The New York Times's James Reston called this "a damn silly analogy."

It is possible to interpret such passages as pleas for reforms that the U.S. must undertake in order to forestall more bitterness and violence. In fact, Douglas urges "political regeneration," not revolution. But the book's perfervid tone and fuzzy phrasing--hardly appropriate from a Supreme Court Justice--garble the message. Ford declared that the book, coming "at a critical time in our history when peace and order are what we need, is less than judicial good behavior."

It is certainly imprudent behavior. But Douglas, at 71 something of a folk hero to the young, has always liked to sound off without watching his words too carefully. Independent and highly intelligent (he has been known to scribble notes for his books during boring oral arguments), he has invited criticism for most of his 31 years on the court. Talk of impeaching him simmered in Congress three years ago, when his 26-year-old third wife divorced him and he married his present wife, then 23, within less than a month. Although the technical expertise he gained as a New Deal chairman of the Securities and Exchange Commission has been indispensable to a host of antitrust decisions, his legal craftsmanship can be careless. He writes articles for Playboy and other magazines, and is an outspoken off-the-bench activist on issues ranging from U.S. recognition of Red China to the ecological misdeeds of the Army Corps of Engineers. Such advocacy piques those who feel that Supreme Court Justices should be more magisterial and aloof from politics and public debate; there is the real danger that in discussing so many issues so freely. Douglas may prejudge matters that may come before the court.

Pornography and Prayer. Douglas provoked earlier impeachment attempts in 1953, when he briefly stayed the execution of convicted Atom Spies Julius and Ethel Rosenberg because their second request for habeas corpus raised a substantial question that the court had not previously considered. The attempted impeachment died in the House Judiciary Committee, and Douglas continued to join Justice Hugo Black in vigorous dissents urging the protection of the rights of the unpopular. In cases involving free speech and assembly, Douglas has argued that the First Amendment is intended to protect everyone, including "miserable merchants of unwanted ideas." Direct action, he conceded, is quite another matter.

Similar civil libertarianism has led Douglas to oppose legal curbs on pornography--not, as he reiterated in a recent dissent, "because I relish 'obscenity' but because I think the First Amendment bars all kinds of censorship." The court, he believes, is not constitutionally required to take on the dilemmas of acting as a board of supercensors. Strictly interpreting the constitutional walls between church and state, Douglas concurred in the court's 1962 decision banning public school prayers, but would have gone farther and erased "In God We Trust" from coins, and ended the prayers that begin sessions of the Supreme Court.

Broad Language. Though such views have not endeared Douglas to conservatives, his opinions have often pointed the way to historic advances in American jurisprudence. Save for Douglas, who joined his lonely dissents for years, Hugo Black might never have swung the court to incorporating almost all of the Bill of Rights into the due process clause of the 14th Amendment, thus protecting persons from improper state as well as federal action. Writing for the majority in Griswold v. Connecticut (1965), Douglas defined a "right of privacy" that forbade state bans on the use of contraceptive devices by married couples. That right is now emerging as a potential safeguard against laws that infringe on private manners and morals, such as unconventional sexual relations between consenting adults. The right of privacy is not mentioned by the Constitution, but Douglas ruled that it is implied. In characteristically broad language he declared: "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

Supposed Immunity. Douglas may have been guilty of unwise conduct, questionable judgment and injudicious partisanship. Is this enough to oust him? It would certainly suffice for the Senate to veto a Supreme Court nominee. But Douglas hurdled that barrier in 1939; different standards apply to a sitting judge. After all, no one seriously considered impeaching Judges Haynsworth or Carswell, despite the criticism that barred them from the Supreme Court. One reason is the need for judicial independence: federal judges are deliberately appointed for life and the Constitution restricts the grounds for impeachment to "treason, bribery, or other high crimes and misdemeanors." The process requires a majority vote in the House, followed by a trial and two-thirds vote for conviction in the Senate. Since 1789, only nine federal judges have been finally impeached and eight tried before the Senate. Four of the eight were acquitted, including the only impeached Supreme Court Justice. He was George Washington's appointee, Samuel Chase, who was charged with intemperate denunciations of parties before him.

Ultimate Goal. Even so, Douglas' impeachment is by no means impossible. The threat to Douglas lies in the elusive constitutional phrase that judges "shall hold their offices during good behavior." According to Gerald Ford, "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."

A majority in the House requires 218 votes--and House watchers now calculate that a vote against Douglas today would muster no fewer than 175 members and perhaps as many as 230. Thus, the chief roadblock for the anti-Douglas forces is getting the issue through a committee and then to a vote before the full House. The Judiciary Committee considers formal resolutions of impeachment, but it is headed by liberal Democrat Emanuel Celler, who is expected to favor Douglas. Consequently Ford, seeking a more receptive forum, proposed a step that would be considered by the House Rules Committee under conservative Southern Democrat William Colmer. Last week Ford got 52 Republicans and 53 Democrats to sign a resolution calling for the creation of a select committee to conduct a preliminary investigation of Douglas.

If it works, the ultimate goal is to force the Senate to vote on Douglas shortly before Election Day next fall. The purpose: to embarrass Senate liberals who are running for re-election and would presumably find it difficult to vote for the "immoral" Douglas no matter how they themselves regarded the charges against him.

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