How to Remove a Federal Judge

Abstract

Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at the Founding, good-behavior tenure and impeachment had only the most tenuous of relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many might suppose, judges were not the only ones who could be granted good-behavior tenure. Anything that might be held—land, licenses, employment, etc.—could be granted during good behavior, and private parties could grant good-behavior tenure to other private individuals. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good-behavior tenure had forfeited her tenure by reason of misbehavior. Whether a landholder, employee, or government officer with good-behavior tenure had misbehaved would be determined in the ordinary courts of law. Moreover, the vast majority of state constitutions did not equate good-behavior tenure with impeachment either. To the contrary, many distinguished them explicitly. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment. More importantly, they indicate that the original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law. authors. Saikrishna Prakash is Herzog Research Professor of Law, University of San Diego. Steven D. Smith is Warren Distinguished Professor of Law, University of San Diego. The authors are grateful for the valuable comments and criticisms offered by Larry Alexander, Hasmik Badalian, Laurie Claus, Mike Rappaport, Martin Redish, and participants at the University of San Diego and Cornell Law School faculty workshops. The authors also thank Ana Arboleda for her research assistance. PRAKASH FORMATTED_08-27-06 10/17/2006 6:19:04 PM how to remove a federal judge