Impeachment of judges: a brief historical and comparative analysis between Brazil and the United States of America
DOI:
https://doi.org/10.14409/redoeda.v9i2.11082Keywords:
impeachment, Supreme Court judges, judicial independence, Brazil, United States of AmericaAbstract
This article aims to uncover some less known uses of the impeachment mechanism in Brazil and in the United States of America: judicial impeachment. On the one hand, it aims at discussing how impeachment relates to the removal of judges from public office in these two countries, namely when it comes to judges in the highest courts of the judicial branch (Supreme or Constitutional Court); on the other hand, the purpose is to discuss the connections between impeachment, judicial independence and accountability. The idea is to use comparative constitutional law methodology to address the historical background of impeachment and how it spread throughout different jurisdictions along the way before arriving in the Brazilian legal and constitutional scenario. In light of that, one of the most relevant sources will be found in precedents and legal doctrine regarding impeachment, with a significant focus on historical registers of its use and relation to judicial independence. The final objective is to test and investigate whether judicial impeachment can be seen or not as a mechanism that enhances judicial independence in countries that still adopt the practice, such as Brazil and the United States of America.
References
BADIE, Bertrand; BERG-SCHLOSSER, Dirk; MORLINO, Leonardo (Orgs.). International encyclopedia of political science. v. 5. Los Angeles: Sage Publishing, 2011.
BERGER, Raoul. Impeachment: the constitutional problems. Cambridge: Harvard University Press, 1999.
FARRAND, Max. The framing of the Constitution of the United States. New Haven: Yale University Press, 1913.
FARRAND, Max. The records of the Federal Convention of 1787. v. 2. New Haven: Yale University Press, 1911.
FEERICK, John D. Impeaching federal judges: a study of the constitutional provisions. Fordham Law Review, New York, v. 39, n. 1, p. 1-58, 1970.
FEREJOHN, John A.; KRAMER, Larry D. Independent judges, dependent judiciary: institutionalizing judicial restraint. New York University Law Review, New York, v. 77, n. 4, p. 692-1039, Oct. 2002.
FORD, Gerald R. Impeachment: a mace for the federal judiciary. Notre Dame Lawyer, v. 46, n. 4, p. 669-677, 1971.
GARNER, Bryan A. (Org.). Black’s Law Dictionary. 11.ed. St. Paul: Thomson Reuters, 2019.
GERHARDT, Michael J. The federal impeachment process. Chicago: The University of Chicago Press, 2019.
HATSELL, John. Precedents of the proceedings in the House of Commons: with observations. v. 4. London: Hansard and Sons, 1818.
HIRSCHL, Ran. Towards juristocracy: the origins and consequences of the new constitutionalism. Cambridge: Harvard University Press, 2007.
KAUFMAN, Irving R. Chilling judicial independence. Yale Law Journal, v. 88, n. 4, p.681-716, 1979.
KESLER, Charles R. (Org.). The federalist papers. New York: Signet Classics, 2003.
KURLAND, Philip B. The Constitution and the tenure of federal judges: some notes from history. The University of Chicago Law Review, v. 36, n. 4, p. 665-698, 1969.
LILLICH, Richard B. The Chase impeachment. The American Journal of Legal History, v. 4, n. 1, p. 49-72, 1960.
MAITLAND, Frederic William. The constitutional history of England. Cambridge: Cambridge University Press, 1909.
NICHOLS, John. The genius of impeachment: the Founders’ cure for royalism. New York: The New Press, 2006.
PERLIN, Adam A. The impeachment of Samuel Chase: redefining judicial independence. Rutgers Law Review, v. 62, n. 3, p. 725-789, 2010.
PFANDER, James E. Removing federal judges. The University of Chicago Law Review, v. 74, n. 4, p. 1227-1250, 2007.
RIDDELL, William Renwick. Erring judges of the fourteenth century. Illinois Law Review, Champaign, v. 21, n. 6, p. 543-558, 1926-1927.
SHETREET, Shimon; TURENNE, Sophie Turenne. Judges on trial: the independence and accountability of the english judiciary. 2.ed. Cambridge: Cambridge University Press, 2013.
SUNSTEIN, Cass R. Impeachment: a citizen’s guide. New York: Penguin Books, 2019.
VOLCANSEK, Mary L. British antecedents for U.S. impeachment practices: continuity and change. The Justice System Journal, Philadelphia, v. 14, n. 1, p. 40-62, 1990.
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