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November|December 2005

Oh, Behave!

Congress's recent efforts to punish federal judges flout the Constitution; it says so in the Good Behavior Clause.

By Todd David Peterson

THE RELATIONSHIP BETWEEN CONGRESS AND THE FEDERAL COURTS has become increasingly frosty in recent years. Each branch nurses grievances against the other, and the usually polite dialogue between the two has been peppered with invective that ranges from whiny to downright intemperate. Much of the problem traces its origins to the imposition of the federal sentencing guidelines, which were authorized by the Sentencing Reform Act of 1984 and severely restricted the sentencing discretion of federal judges. Before the Supreme Court's recent rulings in the Blakely and Booker cases (which rendered the guidelines advisory rather than mandatory), the guidelines provoked an unusual number of judges to speak out against the congressional requirements in speeches, testimony before Congress, and even judicial opinions. Many in Congress seemed irked by what they perceived as judicial arrogance—in the tone of the judicial objections to sentencing reform, in the perceived indifference to congressional concerns, or in the substance of judicial opinions, which some labeled judicial activism.

Congress's response has ranged from lengthy complaints in floor speeches and committee reports, to various bills designed to "overrule" Supreme Court interpretations of the Constitution, to investigations of federal judges who, for one reason or another, have provoked the ire of legislators. All of these actions raise interesting constitutional questions, particularly about the nature of federal judicial independence and the meaning of the Constitution's Good Behavior Clause, which guarantees to federal judges the right to continue in office during good behavior and prohibits any cut in their compensation. Is impeachment the sole method for removing federal judges? What are sufficient grounds for impeaching a judge? And what are the implications of the Good Behavior Clause for Congress's role vis-à-vis the federal courts?

The framers borrowed the term "good behavior" from the British Settlement Act of 1701, in which the British Parliament prescribed protections for English judges. The act required that "judges' commissions be made Quamdiu se bene gesserint"—while they behave themselves—"and their salaries ascertained and established; but upon joint address of both Houses of Parliament it may be lawful to remove them." In the case of judges who failed to meet the standard of good behavior, Parliament, by a vote of both houses, was permitted to remove them.

This guarantee of substantial judicial independence was much admired by American colonists and was the source of much dissatisfaction with the rules that governed the colonies. For, unlike the judges in the home country, colonial judges had no such guarantees of independence, but rather served at the pleasure of the colonial governors. The colonists were so offended by this subservience that, when it came time to list their grievances in the Declaration of Independence, the members of the Continental Congress complained that King George III had "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."

Small wonder that, when it came time to draft the Constitution in 1787, the framers included guarantees of judicial independence that were drawn from the British model. In Article III, Section 1, the Constitution states that all federal judges "shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." The framers rejected a proposal that would have permitted removal of federal judges by a simple majority vote of the combined houses of Congress. As James Wilson of Pennsylvania noted, "The judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Government." The only constitutionally specified method of removal was the more cumbersome impeachment process, which requires a trial in the Senate and concurrence of two-thirds of the members voting to remove a federal judge from office.

YOU MIGHT WELL ASK, HOWEVER, whether Congress could establish other methods for implementing the Good Behavior Clause, such as by allowing the courts to remove judges deemed to have engaged in bad behavior. It might also be argued that Article III, Section 1 sets a higher standard of behavior for judges than does Article II, Section 4, the clause of the Constitution setting out the standards of impeachment, and that judges might breach the good behavior standard by actions less egregious than "Treason, Bribery or other high Crimes and Misdemeanors." The Impeachment Clause applies to all "civil Officers," including cabinet officers as well as federal judges. Cabinet officers may be removed from office by impeachment, but they may also be fired by the president. So why should the Impeachment Clause be the sole method for removing federal judges?

Some scholars have taken up this argument and have argued that Congress could create a mechanism other than impeachment for the removal of federal judges. In the 1930s, the legal scholar Burke Shartel wrote a series of articles asserting that the Good Behavior Clause could be enforced other than through impeachment and that Congress could authorize the courts to remove judges for breaches of good behavior. Raoul Berger, the legal historian, expanded upon this argument in his 1973 book Impeachment, maintaining that the Good Behavior Clause allowed judges to be held accountable to a higher standard than the Impeachment Clause permitted.

There may be some logic to this argument, but it has not met with the approval of history. In the 200-plus years since the ratification of the Constitution, seven federal judges have been removed from office through impeachment by the House and conviction after a trial in the Senate; no judge has been removed by any other method. Although the Supreme Court has never directly ruled that impeachment is the exclusive method for removing federal judges, it has stated so in dictum on a number of occasions. The great majority of scholars agree that impeachment, with its higher standard of wrongdoing and formal requirements for trial in the Senate, is the exclusive means for removing a federal judge. Recently, the National Commission on Judicial Discipline and Removal, established by Congress to examine issues relating to federal judicial tenure, agreed. It seems far too late in the game to argue convincingly that the Good Behavior Clause authorizes forms of removal other than impeachment.

But that conclusion does not answer the question of what misconduct might authorize Congress to remove a judge through that process. That question has been a source of controversy from the first decades of the Republic. After the election of 1800, the Jeffersonian party in Congress made a concerted effort to limit the power of the federal judiciary, then dominated by Federalist appointees. Congress, beginning with a pair of impeachments, made plans to remove many Federalist judges. This effort culminated in the impeachment and Senate trial of Supreme Court Justice Samuel Chase for alleged misconduct in addressing a grand jury, among other things. Chase managed to avoid removal from office by a slim margin and thus established a vital precedent for judicial independence. The Senate rejected the idea that federal judges could be removed from office because of their politics or the way in which they decide their cases.

As the late Chief Justice William Rehnquist noted in his own book on impeachment, Chase's acquittal "assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them." Since that time, no federal judge has been impeached because of Congress's unhappiness with the substance of the judge's decisions, although noisy campaigns to do just that were launched against several justices, including Earl Warren and William O. Douglas. Judges have been removed for bribery, tax evasion, and perjury, but never for the substance of their rulings on the bench.

WHICH BRINGS US FULL CIRCLE to the current state of animosity between Congress and federal judges who are vested with lifetime tenure subject only to impeachment. Legislators who are unhappy with either the state of the federal judiciary as a whole or the work of individual judges have found a number of ways short of impeachment to express their criticisms. Members of Congress have introduced legislation designed to curb the power of the federal courts. Some of these bills border on the comical, like the one introduced to give Congress the power to reverse a judgment of the Supreme Court on an issue of federal constitutional law by two-thirds vote of both houses—in other words, to overrule the 1803 landmark ruling of Marbury v. Madison, which made judicial review a tenet of American law. Or the bill to remove federal court jurisdiction over all cases relating to the government's "acknowledgment of God as the sovereign source of law, liberty, or government," a ploy to remove cases relating to the public display of the Ten Commandments.

More troubling are comments from some in Congress hinting at retribution for decisions made by the federal courts. Republican Senator John Cornyn of Texas suggested in a speech that "there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that builds up and builds up and builds up to the point where some people engage in violence."

Congress has also used its power to investigate and to create investigative institutions to impose its will on the federal courts. House Judiciary Committee chairman James Sensenbrenner, a Republican representative from Wisconsin, has proposed the creation of an inspector general who would oversee judicial operations and investigate allegations of misconduct and report on them to Congress. Sensenbrenner's committee conducted an extensive investigation of Chief Judge James Rosenbaum of the Minnesota federal district court, a Reagan appointee who had the bad judgment to testify before the committee that he was in favor of reduced federal sentences for certain minor drug offenders. The committee embarked on a quest for confidential records from cases on Rosenbaum's criminal docket to determine if the judge was properly sentencing defendants under the guidelines.

A similar investigation was launched against Chief Judge Boyce Martin of the United States Court of Appeals for the Sixth Circuit. In response to allegations that Martin had manipulated the selection of the Sixth Circuit panel to hear the Grutter v. Bollinger affirmative action case (later decided by the Supreme Court), the Judiciary Committee subpoenaed masses of records and conducted multiple interviews under threat of subpoena with judges and court staff.

The proposal for an inspector general is an effort to place a person whom Congress regards as its own agent within the judicial branch. Congress might argue that the work of an inspector general would be confined to the fiscal operations of the branch, which would have a minimal impact on the independence of judicial decision making. Still, it seems unlikely that an inspector general assigned to serve as a watchdog over the federal courts would agree to be limited to fiscal investigations.

The congressional investigations seem even more problematic. The investigation of Rosenbaum was based on the committee's disagreement with his views on sentencing. The investigation was not part of a larger inquiry about the sentencing process or the sentencing guidelines, and Congress did not need to ensure that Rosenbaum would be accountable for his decisions. The federal courts already provide a mechanism for that: It's called appellate review.

The committee's investigation appears to have been designed to intimidate the judge for expressing views on a controversial issue that were at odds with the committee majority. And make no mistake: Such an investigation is intimidating. Compliance with congressional subpoenas is an enormous drain on a judge's time that distracts a judge from his judicial duties. That kind of investigation is an equally significant drain on a judge's bank account, since a judge under such an investigation will inevitably be forced, as Rosenbaum was, to hire an attorney to represent him. Finally, there is the stigma associated with being the subject of a congressional investigation. Any judge would think twice before taking an action that might make him a target of such pique.

The investigation of Martin involves a slightly different issue, because, at least on the surface, it relates not to the substance of his judicial opinions but to the propriety of administrative actions taken by him in his role as chief judge of the Sixth Circuit. Although the costs to the individual judge are the same as in the case of Rosenbaum, Congress arguably has a greater need for the information, because it has a legitimate interest in the issue of judicial misconduct in the administration of the court system. Congress is authorized to pass legislation to regulate the administrative process. In addition, such administrative issues do not, on their face, raise the same concerns about judicial independence as do the substance of sentencing or other judicial decision making.

But Martin was not unaccountable for his administrative actions. The Judicial Conduct and Disability Act gives circuit councils the authority to investigate complaints of judicial misconduct. The new Republican-appointed chief judge conducted such an investigation, and, in a decision later upheld by the circuit council, he questioned some of Martin's actions but determined that no further action was necessary. Given the controversial nature of the affirmative action case, and given Martin's role in the appeals court's consideration of the case, it's hard not to suspect (and many do suspect) that he became a congressional target because of the position he took in the case.

AND SO WE ARE BACK TO THE MEANING OF "GOOD BEHAVIOR." Does this clause in the Constitution simply mean that a judge cannot be removed from office except through the impeachment process, or does it embody something more? The history of the clause argues for the expansive view. I would suggest that the phrase embodies a principle of judicial independence that ought to inform all interactions between the political branches and the federal courts: the framers' belief that judging should be freed from the influence of the gusts of political faction. A judge should not have to worry about whether his rulings will offend powerful political figures who have the ability to make his life difficult as retribution for his reading of the law. Good behavior embodies the view that judging is best and most fair when a judge acts on the basis of his own independent reading of the law to decide cases on the merits. A federal judge of whatever judicial philosophy or inclination should not have to watch his back when dispensing justice.

Todd David Peterson, a law professor at George Washington University, was a consultant to the National Commission on Judicial Discipline and Removal.

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