Bruce Ackerman NodsMike Rappaport

Bruce Ackerman, whose work I always find interesting and who was my teacher at Yale, makes a strange argument in Slate.  He says that Judge Jay Bybee should be impeached for signing the so called torture memos.  Ackerman writes that these memos, written by John Yoo, were legally incompetent because they failed to consider "many of the most obvious counterarguments."

Whatever one thinks of the torture memos or Jay Bybee (whose work I respect and who I knew before his stint at OLC and the 9th Circuit), Ackerman's essay is odd.  Can a judge be impeached for actions that he took before he became a judge?  That is not at all clear.  It would have been odd to have impeached Bill Clinton for his actions as Governor concerning Paula Jones, even if one regarded them as high crimes and misdemeanors.  (In fact, many people -- perhaps Ackerman himself -- argued that the lawsuit against Clinton during his presidency should have been postponed until after he stepped down from office.)

The odd thing is that Ackerman does not raise this issue.  Now, a Slate opinion piece is short, but still, it is peculiar that he omits this "most obvious [of] counterarguments."