Porteous Impeachment

Floor Speech

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Mr. UDALL of Colorado. Mr. President, I rise to explain my votes in relation to the impeachment of Judge G. Thomas Porteous, Jr. I take my role in the rare process of impeachment seriously, and welcome the opportunity to explain my reasoning for voting guilty on all four Articles of Impeachment and to clarify for the record the limited precedential value that I believe the conviction on Article IV should provide.

When considering the evidence presented by the House and Judge Porteous, I first had to establish what standard of proof I would use to determine his guilt or innocence on each Article of Impeachment passed by the House of Representatives. The Senate has never adopted a standard of proof like `beyond a reasonable doubt' from the criminal context or `a preponderance of the evidence' from a civil dispute context; rather, the Senate has allowed individual Senators to decide for themselves what standard is most appropriate. I ultimately settled on the standard suggested by the House Manager, that I be convinced of the truthfulness of the allegations and that they rise to a level of high crimes and misdemeanors.

Mr. President, our founders granted Congress the power of impeachment to protect the institutions of government from those judged to be unfit to hold positions of trust. In Federalist 65, Alexander Hamilton wrote of the jurisdiction to impeach an official: ``There are those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust.'' This captures the standard I applied to reach a determination of guilt on each Article of Impeachment. I was convinced that Judge Porteous, through each action and through his pattern of behavior, undermined the public's faith in him as a government official and in the institution that he represented--the United States Federal Court.

With respect to Articles I, II and III, I am confident that the evidence of specific acts and the pattern of behavior displayed by Judge Porteous justifies my determination that he was guilty of high crimes and misdemeanors. Article IV, however, gives me pause. While I believe that the guilty vote on Article IV was correct, I have reservations about the precedent that scholars and future Senators might find in this impeachment. The questionnaire the judicial nominees fill out for the Senate Judiciary Committee provides an opportunity for those nominated to answer questions about their past activities and involvement in and with the law. From these questionnaires, we are able to learn of a nominee's legal experience, find information about past statements and generally assess the fitness of the nominee for the federal bench.

On his questionnaire, Judge Porteous was asked whether any unfavorable information existed that could affect his nomination, and he answered that he did not know of any. I believe that Judge Porteous engaged in a pattern of behavior prior to, during and after his nomination to the federal district court that undermined the public's faith in him as a government official, and that this pattern of behavior rose to the level of an impeachable offense that met the standard of high crimes and misdemeanors. Having said that, I do not believe that future nominees should be subject to impeachment simply for a failure to answer a subjective, open-ended question on the Senate Judiciary Committee's questionnaire.

Judge Porteous abused the questionnaire process, misrepresented his background and misled the Senate in an egregious manner that was unique to this specific situation. However, I can imagine a scenario whereby a nominee could falsely affirm that no negative information affecting his nomination existed, yet I might not find that false answer to be an impeachable offense. I do not wish to see the nomination process become even more difficult for qualified men and women of good character, solely because of an onerous application process. Many of us have things in our backgrounds that we might miss when asked open ended questions, and the Senate should not hang the cloud of impeachment over every nominee's head because of such oversights alone--otherwise, we will find ourselves without any nominees.

As a Senator who is not a lawyer, I would like to thank my colleagues who took on the historic task of preparing and presenting this impeachment trial. Specifically, Senator CLAIRE MCCASKILL and Senator ORRIN HATCH who shared the role of chair of the Special Impeachment Trial Committee. I came away from this experience with a renewed respect for the Senate as an institution. When given the opportunity, Senators can work in a productive and civil manner, and I am sure that if he were able to see the dignity and respect with which the Senate treated this impeachment, Alexander Hamilton would be very proud.

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