As an avid follower of the current impeachment proceedings against Judge G. Thomas Porteous of New Orleans, I have been delighed to discover that another judge from New Orleans was impeached by the House of Representatives — in 1874. Judge Edward Durell, a transplant to the Crescent City from New Hampshire, was impeached as part of the tortured politics of Reconstruction.
The story, told by Charles Lane in a recent issue of The Green Bag, is a cautionary tale of politics overtaking the Constitution. Judge Durell, a Unionist Democrat before the Civil War, became a Republican during the war and was rewarded with a seat on the federal bench. That job, however, placed him in the middle of a violent controversy over the 1872 election for Louisiana’s governor.
In short — and please do yourself a favor and read the excellent Lane article — the old Democratic/secessionist power structure tried to steal the election for Henry Clay Warmoth (photo below), but Judge Durell stood firm and resolutely blocked that effort. For his troubles, Durell became a whipping boy for the Democratic Party nationwide. As the electoral tide began to flow against the Republican Party, the anti-Durell campaign managed to get an impeachment resolution through the House. The principal accusation was that the judge overstepped his powers in dealing with the disputed 1872 election for governor. When the Democratic Party won a majority in the House in the 1874 elections, Durell chose to resign his office rather than face trial in the Senate.
Ironies abound in the Durell saga. The Democratic Party had stridently opposed the impeachment of President Andrew Johnson in 1868 as a purely political exercise. Six years later, the Democrats suddenly saw the virtue of politically-based impeachments.
But at least the Johnson case involved the president, and presidential impeachments are obviously political acts. Judicial impeachments were supposed to be different.
Seventy years before the Durell case the Senate had rejected the attempt to remove Supreme Court Justice Samuel Chase from office based on the substance of his judicial rulings. The Chase precedent was thought to establish the principle that no impeachment should proceed because of disagreement with a judicial ruling, certainly not one that was subject to review by an appellate court. Nevertheless, Judge Durell faced removal largely because the Democrats detested his actions in the case over the election for governor.
If stories of Reconstruction get your blood racing, you might also look into Lane’s recent book on the Colfax Massacre in Louisiana, The Day Freedom Died. It’s excellent (and also explained to me how Louisiana ended up with a parish named for Ulysses S. Grant).
Judge Porteous, I fear, can take little solace from the Durell saga. Not only did it end badly for the judge, but the issues in that case — freedom to vote, equal rights for the freed slaves, fair elections — were considerably more elevated than the bankruptcy fraud and corruption at the core of the Porteous prosecution.