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Beyond impeachment

In an aside to a speech here some five years ago, Alcee Hastings said of the attorney general of the United States: "If Ed Meese ain't a crook, grits ain't groceries."

Hastings was a sitting federal judge at the time, and judges aren't supposed to say things like that. Moreover, Meese had not even been charged with any crime.

But listen to Hastings last week after state Rep. Lois Frankel, his opponent in the Democratic runoff in Florida's 23rd Congressional District, ran television advertisements in which she said she could not be bought.

"She called me a crook, and I have no record anywhere in America of having a felony conviction . . ." said Hastings. "I was removed administratively from my job, so how dare she call me a crook?"

Indignation sometimes serves where truth will not. It is true only that Hastings was not convicted of violating a criminal statute. Government prosecutors had been unable to persuade a jury that Hastings was in fact the intended recipient of $150,000 in marked bills that had been delivered to a bagman. But the House eventually voted 413 to 3 to impeach him on the same grounds, amplified by new charges that he had lied to the jury, and the Senate then convicted him by a vote of 69-26. That conviction stands for the moment, even though another federal judge has now ruled that the Senate tried Hastings in an unconstitutional manner. Frankel need not have relied on innuendo. With legal impunity, she could have come out and called him a crook.

Crook or not, Hastings won the runoff on the strength of extraordinary turnout among black voters who apparently weren't troubled by his past. Though he still has to get by a Republican, political novice Ed Fielding of Stuart, the district was drawn to be a lock for a Democrat. But more of the voters are white than black, which means Hastings must reach out to white Democrats who voted against him or stayed home last week. He all but ignored them in the runoff.

Whatever Congress may think of having a disgraced ex-judge in its midst, Hastings' election would at least relieve the Senate of the prospect of having to retry the impeachment case, which dragged on for five weeks in 1989. If the Supreme Court were to uphold District Judge Stanley Sporkin's finding that the trial was conducted improperly _ in that evidence was heard only by a committee rather than by all 100 senators _ Hastings would have to give up his House seat in order to go through with a new trial. He has already said he would choose the Congress.

The Supreme Court could pronounce the issue moot, of course. It could also reverse Sporkin on the premise that the separation of powers doctrine entitles the Senate to try impeachments however it pleases. Most lawyers expect that to be the outcome, and more than a few of them are praying for it. They worry that the impeachment power would become a dead letter if the Senate were obliged to do nothing else for a month at a time but hear evidence against accused judges, and that the result would be a judiciary answerable to no one. Considering that federal judges are appointed for life, says Tom McDonald, former chairman of Florida's Judicial Qualifications Commission (JQC), "impeachment is the only check we've got."

It could also be said, of course, that with all the time the Senate wastes it could surely spare some for impeachments once in a while.

Yet the federal judiciary has grown enormously larger than anything the framers of the Constitution might have envisioned; there are now more than 1,000 lifetime judges, and there are more vacancies than all the judges confirmed by the first few Congresses. Impeachment is so ponderous a remedy that it no longer poses a realistic threat to misconduct. Judges can be lazy, overbearing, rude, cruel, biased and even incompetent, and nothing much usually happens. From 1936 to 1986 _ half a century _ there were no impeachment trials.

The framers intended, with good reason, that judges should have the freedom of conscience that comes from life tenure. They also intended impeachment to be difficult. But they could not have meant for anyone to endure so long an ordeal as Hastings has. From his acquittal by a jury to his conviction by the Senate took six years, and it may not be over yet.

Could any doubt remain that the United States needs a constitutional amendment establishing an alternative removal process such as many of the states have? In Florida, for example, the JQC has the power to investigate judges and ask the Supreme Court to reprimand or even oust them. Though Florida's JQC has been frittering itself away on trivialities lately, its historical example is a good one. Congress finally commissioned a blue-ribbon study that got under way in January. A Supreme Court decision upholding Sporkin could jolt Congress enough to make it want to do more.

When the time comes, perhaps Congressman Hastings would sponsor the bill.

Martin Dyckman is associate editor of the Times.

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