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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-740
- --------
- 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 Souter, concurring in the judgment.
- I agree with the Court that this case presents a
- nonjusticiable political question. Because my analysis
- differs somewhat from the Court's, however, I concur in
- its judgment by this separate opinion.
- As we cautioned in Baker v. Carr, 369 U. S. 186,
- 210-211 (1962), -the `political question' label- tends -to
- obscure the need for case-by-case inquiry.- The need for
- such close examination is nevertheless clear from our
- precedents, which demonstrate that the functional nature
- of the political question doctrine requires analysis of -the
- precise facts and posture of the particular case,- and
- precludes -resolution by any semantic cataloguing,- id., at
- 217:
- -Prominent on the surface of any case held to involve
- a political question is found a textually demonstrable
- constitutional commitment of the issue to a coordinate
- political department; or a lack of judicially discover-
- able and manageable standards for resolving it; or the
- impossibility of deciding without an initial policy
- determination of a kind clearly for nonjudicial discre-
- tion; or the impossibility of a court's undertaking
- independent resolution without expressing lack of the
- respect due coordinate branches of government; or an
- unusual need for unquestioning adherence to a politi-
- cal decision already made; or the potentiality of
- embarrassment from multifarious pronouncements by
- various departments on one question.- Ibid.
- Whatever considerations feature most prominently in a
- particular case, the political question doctrine is -essen-
- tially a function of the separation of powers,- ibid.,
- existing to restrain courts -from inappropriate interference
- in the business of the other branches of Government,-
- United States v. Munoz-Flores, 495 U. S. 385, 394 (1990),
- and deriving in large part from prudential concerns about
- the respect we owe the political departments. See
- Goldwater v. Carter, 444 U. S. 996, 1000 (1979) (Powell,
- J., concurring in judgment); A. Bickel, The Least Danger-
- ous Branch 125-126 (2d ed. 1986); Finkelstein, Judicial
- Self-Limitation, 37 Harv. L. Rev. 338, 344-345 (1924).
- Not all interference is inappropriate or disrespectful,
- however, and application of the doctrine ultimately turns,
- as Learned Hand put it, on -how importunately the
- occasion demands an answer.- L. Hand, The Bill of
- Rights 15 (1958).
- This occasion does not demand an answer. The Im-
- peachment Trial Clause commits to the Senate -the sole
- Power to try all Impeachments,- subject to three proce-
- dural requirements: the Senate shall be on oath or
- affirmation; the Chief Justice shall preside when the
- President is tried; and conviction shall be upon the
- concurrence of two-thirds of the Members present. U. S.
- Const., Art. I, 3, cl. 6. It seems fair to conclude that the
- Clause contemplates that the Senate may determine,
- within broad boundaries, such subsidiary issues as the
- procedures for receipt and consideration of evidence
- necessary to satisfy its duty to -try- impeachments. Other
- significant considerations confirm a conclusion that this
- case presents a nonjusticiable political question: the
- -unusual need for unquestioning adherence to a political
- decision already made,- as well as -the potentiality of
- embarrassment from multifarious pronouncements by
- various departments on one question.- Baker, supra, at
- 217. As the Court observes, see ante, at 11-12, judicial
- review of an impeachment trial would under the best of
- circumstances entail significant disruption of government.
- One can, nevertheless, envision different and unusual
- circumstances that might justify a more searching review
- of impeachment proceedings. If the Senate were to act
- in a manner seriously threatening the integrity of its
- results, convicting, say, upon a coin-toss, or upon a
- summary determination that an officer of the United
- States was simply -`a bad guy,'- ante, at 2 (White, J.,
- concurring in judgment), judicial interference might well
- be appropriate. In such circumstances, the Senate's action
- might be so far beyond the scope of its constitutional
- authority, and the consequent impact on the Republic so
- great, as to merit a judicial response despite the pruden-
- tial concerns that would ordinarily counsel silence. -The
- political question doctrine, a tool for maintenance of
- governmental order, will not be so applied as to promote
- only disorder.- Baker, supra, at 215.
-