concurring:
We are in agreement that, “political question” or not, we must interpret the clause giving the Senate the “sole Power to try all Impeachments,” U.S. Const., art. I, § 3, cl. 6. My review of that clause leads me to conclude that the Senate, and the Senate alone, is to choose the method by *247which it exercises its “sole Power.” The controlling question, it seems to me, is not whether the Senate acted in conformity with the historical understanding of the word “try,” or even whether the word has a sufficiently concrete meaning to constitute a limitation on the Senate’s power. It is whether the judiciary is to make those judgments.
The “sole Power to try all Impeachments” must include the sole power to set the procedures for trial, as the Senate did here. The Constitution names no other body to perform that function. Apart from the requirements that the Senators take an oath, that the Chief Justice preside over impeachments of Presidents, and that two thirds of the Senators present must concur, the Constitution is silent about other procedural details. If the Senate did not have the sole power to determine how to conduct the proceedings, if the judiciary had the final say on what procedures the Senate must put in place, it is only a short step to judicial review of the Senate’s compliance with those procedures. Once that dike bursts, there can be no holding back the flood of issues that inevitably will be presented to the courts. One impeached official will claim as fundamental to a “trial” the right to an unbiased tribunal, free of undue political influence. Another will argue that notice was inadequate or that his right to call witnesses was impaired. Others will contend that their impeachments must be set aside because they were denied an adequate opportunity to cross-examine witnesses, or because improper evidence was introduced against them, or because some Senator made a prejudicial remark during the proceedings. “Procedural” challenges of this sort fill the pages of the federal reports. There is no reason to doubt that impeached individuals would be less vigorous litigators or that, over time, judicial review would lead to judicial control. Yet as Judge Williams ably demonstrates, the Framers did not intend the judiciary to perform such a reviewing function in impeachment trials. The Constitutional Convention removed impeachment from the Supreme Court’s original jurisdiction and transferred the power to try impeachments to the Senate. 2 The Records of the Federal Convention of 1787, at 186, 473, 493, 552-53, 592, 600-01 (M. Far-rand ed. 1966). Both the Virginia and the New Jersey plans proposed entrusting judges with the power of impeachment, but the Framers considered it wiser to assign this function to the Senate. See 1 Farrand at 21-22, 244; 2 Farrand at 500-01 & 552-53; P. Hoffer & N. Hull, Impeachment in America, 1635-1805, at 97-100 (1984). Although Madison favored giving the Supreme Court the power of impeachment, the Convention delegates rejected the idea. See 2 Farrand at 551. Whatever the precise rationale for this, concerns about the allocation of power were undoubtedly at work. Alexander Hamilton noted that the possibility of judicial usurpation of legislative power “affords ... a cogent argument for constituting the Senate a court for the trial of impeachments.” The Federalist No. 81, at 546 (A. Hamilton) (J. Cooke ed.).
I hesitate to frame my conclusion that the Senate alone is to decide how to conduct impeachment trials in terms of the “political question” doctrine. I might have no difficulty doing so if the phrase simply meant that “the Constitution has committed the determination of the issue to another agency of government than the courts” (Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1, 9 (1959)). Powell v. McCormack, 395 U.S. 486, 518, 89 S.Ct. 1944, 1962, 23 L.Ed.2d 491 (1969), and Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), do begin by asking whether there has been a “textually demonstrable constitutional commitment of the issue to a coordinate branch of government.” But in Powell, 395 U.S. at 521, 89 S.Ct. at 1963-64, the Court proceeded to answer a quite different question — “whether the ‘qualifications’ which Article I, Section 5 authorized the House to ‘judge’ were only those specified in Article I, Section 2 (and perhaps elsewhere in the Constitution).” Sandalow, Comments on Powell v. McCormack, 17 UCLA L. Rev. 164, 172-73 (1969). Judge Edwards follows an analogous route. He believes that because the Sen*248ate’s power is to “try” impeachments, the judiciary must first give content to the word “try” and then decide whether the Senate has exceeded that power. His approach ultimately leads to conferring on the courts a rather large role in impeachments although the Framers intentionally excluded the judiciary. As I have stated, I view the controlling question as whether the judiciary can pass upon the validity of the Senate’s procedural decisions. My conclusion that the courts have no such role to play in the impeachment process ultimately rests on my interpretation of the Constitution. Perhaps the case qualifies as one presenting a “political question” within Powell’s meaning, perhaps not. It surely differs from Powell in one respect. In Powell, at least, another provision of the Constitution defined “Qualifications”; the same cannot be said for the word “try.” At all events, I see no need to rely on the somewhat “amorphous” doctrine of “political question[s].” Morgan v. United States, 801 F.2d 445, 447 (D.C.Cir.1986) (Scalia, J.), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987).