Kentucky’s Supreme Court has ordered senators to abandon their oaths of office

I'll say it right up front: I'm not a lawyer. For that and other reasons, I was tempted to tread lightly on the impeachment trial awaiting Fayette Circuit Judge Julie Goodman in the Kentucky Senate.

Here's the problem. The facts are crystal clear — and the Kentucky Supreme Court decision attempting to stop the trial makes this constitutional question even harder to ignore.

By a 5-1 vote, the Court said Monday that the General Assembly lacked authority to impeach Judge Goodman, declaring the articles of impeachment void and ordering the legislature to cease its impeachment proceedings. The majority opinion, written by Chief Justice Debra Lambert, concluded that the legislature's impeachment power does not extend to conduct the Court considers within the exclusive domain of the judiciary.

The Kentucky Senate must proceed with the trial.

That isn't a statement about Judge Goodman's conduct. It's a statement about Senators’ oaths to support the Kentucky Constitution, and not just the parts the Supreme Court found convenient to invoke.

Consider what the Kentucky Constitution actually says.

Section 66 reads in its entirety: "The House of Representatives shall have the sole power of impeachment."

Section 67 reads: "All impeachments shall be tried by the Senate. When sitting for that purpose, the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the Senators present."

And Section 109, which delegates the judicial power, says plainly: "The impeachment powers of the General Assembly shall remain inviolate."

Kentucky courts have defined “inviolate” to mean "unassailable" — a power that "cannot be annulled, obstructed, impaired, or restricted by legislative or judicial action." And yet, the Supreme Court has done exactly that: it has annulled, obstructed, and impaired the General Assembly's constitutionally assigned power to impeach.

The majority's opinion that judicial rulings are beyond the legislature's impeachment authority is important and reasonable. On that point, even Judge Goodman’s more controversial opinions have not been impeded by the General Assembly. But that judgment about the legislature’s irrelevance to the rulings of judges has been leveled by a court inserting itself into a process the Constitution explicitly placed elsewhere. The five justices who joined the majority opinion seem not to have grappled seriously with what "inviolate" means when applied to another branch's power.

Justice Shea Nickell did grapple with it — and he got it right. In his dissent, Nickell concluded that the Kentucky Constitution simply does not authorize courts to decide questions relative to impeachments. Impeachment is a legislative power. The General Assembly possesses the sole constitutional authority to initiate and maintain these proceedings. The supervisory writ the majority issued to commandeer and override those proceedings cannot, as Nickell wrote, "be reconciled with the command of Section 109 that 'The impeachment powers of the General Assembly shall remain inviolate.'"

Nickell is right. The history of impeachment, both in Kentucky and at the federal level, supports the conclusion that these proceedings were designed from the founding as a check by the legislature on the other branches — not a power subject to judicial veto. The U.S. Supreme Court recognized as much in Nixon v. United States (1993), holding that Senate impeachment trials present a political question beyond judicial review. The reasoning matches Kentucky's own "sole power" and "inviolate" text.

The majority quotes the founders about co-equal branches. Fine. But co-equality means each branch has exclusive authority in its own constitutional lane. The judiciary's lane is courts. The General Assembly's lane — when it comes to impeachment — is the legislature. A court ordering the legislature to dismiss a duly passed impeachment resolution is not the judiciary defending co-equality. It is the judiciary subordinating a co-equal branch.

Every Kentucky Senator swore an oath to the Kentucky Constitution. That constitution assigns the Senate the duty to try all impeachments. It does not say "try all impeachments, unless a majority of the Supreme Court disagrees." Senators are not subordinates of the court on questions where the Constitution has given them, and them alone, the power to decide.

Does Judge Goodman's official conduct breach the public trust? As the song says, maybe so and maybe not.

Frankly, it’s not relevant to the most crucial question: “Who gets to decide?” The question of the acceptability of Judge Goodman’s conduct is currently before the Kentucky Senate, exactly where our commonwealth’s highest law placed it. The Senate must take up that question, conduct a fair trial, and render its judgment.

Moving ahead with this trial is not defiance. It is fidelity to a constitution that means what it very clearly says.

This piece originally appeared in the Lexington Herald-Leader.