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SUPREME COURT OF THE UNITED STATES
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No. 91-740
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WALTER L. NIXON, PETITIONER v. UNITED
STATES et al.
on writ of certiorari to the united states court
of appeals for the district of columbia circuit
[January 13, 1993]

  Justice White, with whom Justice Blackmun joins,
concurring in the judgment.
  Petitioner contends that the method by which the
Senate convicted him on two articles of impeachment
violates Art. I, 3, cl. 6 of the Constitution, which man-
dates that the Senate -try- impeachments.  The Court is
of the view that the Constitution forbids us even to
consider his contention.  I find no such prohibition and
would therefore reach the merits of the claim.  I concur
in the judgment because the Senate fulfilled its constitu-
tional obligation to -try- petitioner.

                            I
  It should be said at the outset that, as a practical
matter, it will likely make little difference whether the
Court's or my view controls this case.  This is so because
the Senate has very wide discretion in specifying impeach-
ment trial procedures and because it is extremely unlikely
that the Senate would abuse its discretion and insist on
a procedure that could not be deemed a trial by reason-
able judges.  Even taking a wholly practical approach, I
would prefer not to announce an unreviewable discretion
in the Senate to ignore completely the constitutional
direction to -try- impeachment cases.  When asked at oral
argument whether that direction would be satisfied if,
after a House vote to impeach, the Senate, without any
procedure whatsoever, unanimously found the accused
guilty of being -a bad guy,- counsel for the United States
answered that the Government's theory -leads me to
answer that question yes.-  Tr. Oral Arg. 51.  Especially
in light of this advice from the Solicitor General, I would
not issue an invitation to the Senate to find an excuse,
in the name of other pressing business, to be dismissive
of its critical role in the impeachment process.
  Practicalities aside, however, since the meaning of a
constitutional provision is at issue, my disagreement with
the Court should be stated.

                           II
  The majority states that the question raised in this case
meets two of the criteria for political questions set out in
Baker v. Carr, 369 U. S. 186 (1962).  It concludes first
that there is -`a textually demonstrable constitutional
commitment of the issue to a coordinate political depart-
ment.'-  It also finds that the question cannot be resolved
for -`a lack of judicially discoverable and manageable
standards.'-  Ante, at 3.
  Of course the issue in the political question doctrine is
not whether the Constitutional text commits exclusive
responsibility for a particular governmental function to one
of the political branches.  There are numerous instances
of this sort of textual commitment, e.g., Art. I, 8, and it
is not thought that disputes implicating these provisions
are nonjusticiable.  Rather, the issue is whether the
Constitution has given one of the political branches final
responsibility for interpreting the scope and nature of such
a power.
  Although Baker directs the Court to search for -a
textually demonstrable constitutional commitment- of such
responsibility, there are few, if any, explicit and unequivo-
cal instances in the Constitution of this sort of textual
commitment.  Conferral on Congress of the power to
-Judge- qualifications of its members by Art. I, 5 may,
for example, preclude judicial review of whether a prospec-
tive member in fact meets those qualifications.  See
Powell v. McCormack, 395 U. S. 486, 548 (1969).  The
courts therefore are usually left to infer the presence of
a political question from the text and structure of the
Constitution.  In drawing the inference that the Constitu-
tion has committed final interpretive authority to one of
the political branches, courts are sometimes aided by
textual evidence that the judiciary was not meant to
exercise judicial review - a coordinate inquiry expressed
in Baker's -lack of judicially discoverable and manageable
standards- criterion.  See, e.g., Coleman v. Miller, 307
U. S. 433, 452-454 (1939), where the Court refused to
determine the life span of a proposed constitutional
amendment given Art. V's placement of the amendment
process with Congress and the lack of any judicial stan-
dard for resolving the question.  See also id., at 457-460
(Black, J., concurring).

                            A
  The majority finds a clear textual commitment in the
Constitution's use of the word -sole- in the phrase -the
Senate shall have the sole Power to try all impeach-
ments.-  Art. I, 3, cl. 6.  It attributes -considerable
significance- to the fact that this term appears in only one
other passage in the Constitution.  Ante, at 6.  See Art.
I, 2, cl. 5 (the House of Representatives -shall have the
sole Power of Impeachment-).  The Framers' sparing use
of -sole- is thought to indicate that its employment in the
Impeachment Trial Clause demonstrates a concern to give
the Senate exclusive interpretive authority over the
Clause.
  In disagreeing with the Court, I note that the Solicitor
General stated at oral argument that -[w]e don't rest our
submission on sole power to try.-  Tr. Oral Arg. 32; see
also id., at 51.  The Government was well advised in this
respect.  The significance of the Constitution's use of the
term -sole- lies not in the infrequency with which the
term appears, but in the fact that it appears exactly
twice, in parallel provisions concerning impeachment.
That the word -sole- is found only in the House and
Senate Impeachment Clauses demonstrates that its
purpose is to emphasize the distinct role of each in the
impeachment process.  As the majority notes, the Framers,
following English practice, were very much concerned to
separate the prosecutorial from the adjudicative aspects
of impeachment.  Ante, at 11 (citing The Federalist No.
66, p. 446 (J. Cooke ed. 1961)).  Giving each House -sole-
power with respect to its role in impeachments effected
this division of labor.  While the majority is thus right to
interpret the term -sole- to indicate that the Senate ought
to -`functio[n] independently and without assistance or
interference,'- ante, at 6, it wrongly identifies the judici-
ary, rather than the House, as the source of potential
interference with which the Framers were concerned when
they employed the term -sole.-
  Even if the Impeachment Trial Clause is read without
regard to its companion clause, the Court's willingness to
abandon its obligation to review the constitutionality of
legislative acts merely on the strength of the word -sole-
is perplexing.  Consider, by comparison, the treatment of
Art. I, 1, which grants -All legislative powers- to the
House and Senate.  As used in that context -all- is nearly
synonymous with -sole- - both connote entire and exclu-
sive authority.  Yet the Court has never thought it would
unduly interfere with the operation of the Legislative
Branch to entertain difficult and important questions as
to the extent of the legislative power.  Quite the opposite,
we have stated that the proper interpretation of the
Clause falls within the province of the judiciary.  Address-
ing the constitutionality of the legislative veto, for exam-
ple, the Court found it necessary and proper to interpret
Art. I, 1 as one of the -[e]xplicit and unambiguous
provisions of the Constitution [that] prescribe and define
the respective functions of the Congress and of the
Executive in the legislative process.-  INS v. Chadha, 462
U. S. 919, 945 (1983).
  The majority also claims support in the history and
early interpretations of the Impeachment Clauses, noting
the various arguments in support of the current system
made at the Constitutional Convention and expressed
powerfully by Hamilton in The Federalist Nos. 65 and 66.
In light of these materials there can be little doubt that
the Framers came to the view at the Convention that the
trial of officials' public misdeeds should be conducted by
representatives of the people; that the fledgling judiciary
lacked the wherewithal to adjudicate political intrigues;
that the judiciary ought not to try both impeachments and
subsequent criminal cases emanating from them; and that
the impeachment power must reside in the Legislative
Branch to provide a check on the largely unaccountable
judiciary.
  The majority's review of the historical record thus
explains why the power to try impeachments properly
resides with the Senate.  It does not explain, however, the
sweeping statement that the judiciary was -not chosen to
have any role in impeachments.-  Ante, at 9.  Not a
single word in the historical materials cited by the major-
ity addresses judicial review of the Impeachment Trial
Clause.  And a glance at the arguments surrounding the
Impeachment Clauses negates the majority's attempt to
infer nonjusticiability from the Framers' arguments in
support of the Senate's power to try impeachments.
  What the relevant history mainly reveals is deep
ambivalence among many of the Framers over the very
institution of impeachment, which, by its nature, is not
easily reconciled with our system of checks and balances.
As they clearly recognized, the branch of the Federal
Government which is possessed of the authority to try
impeachments, by having final say over the membership
of each branch, holds a potentially unanswerable power
over the others.  In addition, that branch, insofar as it is
called upon to try not only members of other branches,
but also its own, will have the advantage of being the
judge of its own members' causes.
  It is no surprise, then, that the question of impeach-
ment greatly vexed the Framers.  The pages of the
Convention debates reveal diverse plans for resolving this
exceedingly difficult issue.  See P. Hoffer & N. Hull,
Impeachment in America, 1635-1805, pp. 97-106 (1984)
(discussing various proposals).  Both before and during the
convention, Madison maintained that the judiciary ought
to try impeachments.  Id., at 74, 98, 100.   Shortly
thereafter, however, he devised a quite complicated
scheme that involved the participation of each branch.
Id., at 74-75.  Jefferson likewise had attempted to develop
an interbranch system for impeachment trials in Virginia.
Id., at 71-72.  Even Hamilton's eloquent defense of the
scheme adopted by the Constitution was based on a
pragmatic decision to further the cause of ratification
rather than a strong belief in the superiority of a scheme
vesting the Senate with the sole power to try impeach-
ments.  While at the Convention, Hamilton advocated that
impeachment trials be conducted by a court made up of
state court judges.  1 Records of the Federal Convention
of 1787, pp. 292-293 (M. Farrand ed. 1966).  Four months
after publishing the Federalist Nos. 65 and 66, however,
he urged the New York Ratifying Convention to amend
the Clause he had so ably defended to have the Senate,
the Supreme Court, and judges from each state jointly try
impeachments.  5 The Papers of Alexander Hamilton
167-168 (H. Syrett ed. 1962).
  The historical evidence reveals above all else that the
Framers were deeply concerned about placing in any
branch the -awful discretion, which a court of impeach-
ments must necessarily have.-  The Federalist No. 65,
p. 441 (J. Cooke ed. 1961).  Viewed against this history,
the discord between the majority's position and the basic
principles of checks and balances underlying the Constitu-
tion's separation of powers is clear.  In essence, the
majority suggests that the Framers' conferred upon
Congress a potential tool of legislative dominance yet at
the same time rendered Congress' exercise of that power
one of the very few areas of legislative authority immune
from any judicial review.  While the majority rejects
petitioner's justiciability argument as espousing a view
-inconsistent with the Framers' insistence that our system
be one of checks and balances,- ante, at 10, it is the
Court's finding of nonjusticiability that truly upsets the
Framers' careful design.  In a truly balanced system,
impeachments tried by the Senate would serve as a means
of controlling the largely unaccountable judiciary, even as
judicial review would ensure that the Senate adhered to
a minimal set of procedural standards in conducting
impeachment trials.

                            B
  The majority also contends that the term -try- does not
present a judicially manageable standard.  It notes that
in 1787, as today, the word -try- may refer to an inquiry
in the nature of a judicial proceeding, or, more generally,
to experimentation or investigation.  In light of the term's
multiple senses, the Court finds itself unable to conclude
that the Framers used the word -try- as -an implied
limitation on the method by which the Senate might
proceed in trying impeachments.-  Ante, at 5.  Also
according to the majority, comparison to the other more
specific requirements listed in the Impeachment Trial
Clause - that the senators must proceed under oath and
vote by two-thirds to convict, and that the Chief Justice
must preside over an impeachment trial of the President
- indicates that the word -try- was not meant by the
Framers to constitute a limitation on the Senate's conduct
and further reveals the term's unmanageability.
  It is apparently on this basis that the majority distin-
guishes Powell v. McCormack, 395 U. S. 486 (1969).  In
Powell, the House of Representatives argued that the
grant to Congress of the power to -Judge- the qualifica-
tions of its members in Art. I, 5 precluded the Court
from reviewing the House's decision that Powell was not
fit for membership.  We held to the contrary, noting that,
although the Constitution leaves the power to -Judge- in
the hands of Congress, it also enumerates, in Art. I, 2,
the -qualifications- whose presence or absence Congress
must adjudge.  It is precisely the business of the courts,
we concluded, to determine the nature and extent of these
constitutionally-specified qualifications.  Id., at 522.  The
majority finds this case different from Powell only on the
grounds that, whereas the qualifications of Art. I, 2 are
readily susceptible to judicial interpretation, the term -try-
does not provide an -identifiable textual limit on the
authority which is committed to the Senate.-  Ante, at 14.
  This argument comes in two variants.  The first, which
asserts that one simply cannot ascertain the sense of -try-
which the Framers employed and hence cannot undertake
judicial review, is clearly untenable.  To begin with, one
would intuitively expect that, in defining the power of a
political body to conduct an inquiry into official wrong-
doing, the Framers used -try- in its legal sense.  That
intuition is borne out by reflection on the alternatives.
The third clause of Art. I, 3 cannot seriously be read to
mean that the Senate shall -attempt- or -experiment with-
impeachments.  It is equally implausible to say that the
Senate is charged with -investigating- impeachments given
that this description would substantially overlap with the
House of Representatives' -sole- power to draw up articles
of impeachment.  Art. I, 2, cl. 5.  That these alternatives
are not realistic possibilities is finally evidenced by the
use of -tried- in the third sentence of the Impeachment
Trial Clause (-[w]hen the President of the United States
is tried . . .-), and by Art. III, 2, cl. 3 (-[t]he Trial of all
Crimes, except in Cases of Impeachment . . .-).
  The other variant of the majority position focuses not
on which sense of -try- is employed in the Impeachment
Trial Clause, but on whether the legal sense of that term
creates a judicially manageable standard.  The majority
concludes that the term provides no -identifiable textual
limit.-  Yet, as the Government itself conceded at oral
argument, the term -try- is hardly so elusive as the
majority would have it.  See Tr. of Oral Arg. 51-52.
Were the Senate, for example, to adopt the practice of
automatically entering a judgment of conviction whenever
articles of impeachment were delivered from the House,
it is quite clear that the Senate will have failed to -try-
impeachments.  See, id., at 52.  Indeed in this respect,
-try- presents no greater, and perhaps fewer, interpretive
difficulties than some other constitutional standards that
have been found amenable to familiar techniques of
judicial construction, including, for example, -Commerce
. . . among the several States,- Art. I, 8, cl. 3, and -due
process of law.-  Amdt. 5; see Gibbons v. Ogden, 9 Wheat.
1, 189 (1824) (-The subject to be regulated is commerce;
and our constitution being . . . one of enumeration, and
not of definition, to ascertain the extent of the power, it
becomes necessary to settle the meaning of the word-);
Mathews v. Eldridge, 424 U. S. 319, 334 (1976) (-`-[D]ue
process,- unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place
and circumstances'-) (quoting Cafeteria Workers v.
McElroy, 367 U. S. 886, 895 (1961)).

                           III
  The majority's conclusion that -try- is incapable of
meaningful judicial construction is not without irony.  One
might think that if any class of concepts would fall within
the definitional abilities of the judiciary, it would be that
class having to do with procedural justice.  Examination
of the remaining question - whether proceedings in
accordance with Senate Rule XI are compatible with the
Impeachment Trial Clause - confirms this intuition.
  Petitioner bears the rather substantial burden of demon-
strating that, simply by employing the word -try,- the
Constitution prohibits the Senate from relying on a fact-
finding committee.  It is clear that the Framers were
familiar with English impeachment practice and with that
of the States employing a variant of the English model at
the time of the Constitutional Convention.  Hence there
is little doubt that the term -try- as used in Art. I, 3, cl.
6 meant that the Senate should conduct its proceedings
in a manner somewhat resembling a judicial proceeding.
Indeed, it is safe to assume that Senate trials were to
follow the practice in England and the States, which
contemplated a formal hearing on the charges, at which
the accused would be represented by counsel, evidence
would be presented, and the accused would have the
opportunity to be heard.
  Petitioner argues, however, that because committees
were not used in state impeachment trials prior to the
Convention, the word -try- cannot be interpreted to permit
their use.  It is, however, a substantial leap to infer from
the absence of a particular device of parliamentary pro-
cedure that its use has been forever barred by the Consti-
tution.  And there is textual and historical evidence that
undermines the inference sought to be drawn in this case.
  The fact that Art. III, 2, cl. 3 specifically exempts
impeachment trials from the jury requirement provides
some evidence that the Framers were anxious not to have
additional specific procedural requirements read into the
term -try.-  Contemporaneous commentary further sup-
ports this view.  Hamilton, for example, stressed that a
trial by so large a body as the Senate (which at the time
promised to boast 26 members) necessitated that the
proceedings not -be tied down to . . . strict rules, either
in the delineation of the offence by the prosecutors, or in
the construction of it by the Judges . . . .-  The Federalist
No. 65, p. 441 (J. Cooke ed. 1961).  In his extensive
analysis of the Impeachment Trial Clause, Justice Story
offered a nearly identical analysis, which is worth quoting
at length.
-[I]t is obvious, that the strictness of the forms of
proceeding in cases of offences at common law is ill
adapted to impeachments.  The very habits growing
out of judicial employments; the rigid manner, in
which the discretion of judges is limited, and fenced
in on all sides, in order to protect persons accused of
crimes by rules and precedents; and the adherence to
technical principles, which, perhaps, distinguishes this
branch of the law, more than any other, are all ill
adapted to the trial of political offences, in the broad
course of impeachments.  And it has been observed
with great propriety, that a tribunal of a liberal and
comprehensive character, confined, as little as possi-
ble, to strict forms, enabled to continue its session as
long as the nature of the law may require, qualified
to view the charge in all its bearings and dependen-
cies, and to appropriate on sound principles of public
policy the defence of the accused, seems indispensable
to the value of the trial.  The history of impeach-
ments, both in England and America, justifies the
remark.  There is little technical in the mode of
proceeding; the charges are sufficiently clear, and yet
in a general form; there are few exceptions, which
arise in the application of the evidence, which grow
out of mere technical rules and quibbles.  And it has
repeatedly been seen, that the functions have been
better understood, and more liberally and justly
expounded by statesmen, then by mere lawyers.-  1
J. Story, Commentaries on the Constitution of the
United States 765, p. 532 (3d ed. 1858).
  It is also noteworthy that the delegation of fact-finding
by judicial and quasi-judicial bodies was hardly unknown
to the Framers.  Jefferson, at least, was aware that the
House of Lords sometimes delegated fact-finding in
impeachment trials to committees and recommended use
of the same to the Senate.  T. Jefferson, A Manual of
Parliamentary Practice for the Use of the Senate of the
United States LIII (2d ed. 1812) (-The practice is to
swear the witnesses in open House, and then examine
them there: or a committee may be named, who shall
examine them in committee . . .-), reprinted in Jefferson's
Parliamentary Writings, The Papers of Thomas Jefferson,
Second Series 424 (W. Howell ed. 1988).  The States also
had on occasion employed legislative committees to
investigate whether to draw up articles of impeachment.
See Hoffer & Hull, at 29, 33.  More generally, in colonial
governments and state legislatures, contemnors appeared
before committees to answer the charges against them.
See Groppi v. Leslie, 404 U. S. 496, 501 (1972).  Federal
courts likewise had appointed special masters and other
fact finders -[f]rom the commencement of our Govern-
ment.-  Ex parte Peterson, 253 U. S. 300, 312 (1920).
Particularly in light of the Constitution's grant to each
House of the power to -determine the Rules of its Proceed-
ings,- see Art. I,  5, cl. 2, the existence of legislative and
judicial delegation strongly suggests that the Impeachment
Trial Clause was not designed to prevent employment of
a factfinding committee.
  In short, textual and historical evidence reveals that the
Impeachment Trial Clause was not meant to bind the
hands of the Senate beyond establishing a set of minimal
procedures.  Without identifying the exact contours of
these procedures, it is sufficient to say that the Senate's
use of a factfinding committee under Rule XI is entirely
compatible with the Constitution's command that the
Senate -try all impeachments.- Petitioner's challenge to
his conviction must therefore fail.

                           IV
  Petitioner has not asked the Court to conduct his
impeachment trial; he has asked instead that it determine
whether his impeachment was tried by the Senate.  The
majority refuses to reach this determination out of a laud-
able desire to respect the authority of the legislature.
Regrettably, this concern is manifested in a manner that
does needless violence to the Constitution.  The deference
that is owed can be found in the Constitution itself, which
provides the Senate ample discretion to determine how
best to try impeachments.