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Debate Club
DEBATE CLUB 12/19/05

When Can Congress Remove Judges?

Todd D. Peterson and Saikrishna B. Prakash debate.

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Article III of the Constitution says that judges "shall hold their offices during good behavior." To remove misbehaving judges, the Constitution specifies the process of impeachment, but this hasn't stopped members of Congress from trying to figure out how else to get rid of judges they don't like.

In the November | December issue of Legal Affairs, Todd David Peterson concludes that the Constitution's rigorous process for removing judges makes good sense. If firing judges were easier, Peterson says, their independence would be in jeopardy.

Is impeachment the only way for Congress to fire judges?


Todd D. Peterson is Professor of Law at The George Washington University Law School. Saikrishna B. Prakash is Herzog Research Professor of Law at University of San Diego Law School.

Peterson: 12/19/05, 09:24 AM
On November 7, Supreme Court Justice Sandra Day O'Connor startled the members of the American Academy of Appellate Lawyers with a stinging rebuke of congressional efforts to interfere with the independence of the federal judiciary. The appellate lawyers may have been expecting a reflective or wistful reminiscence from the retiring Associate Justice, but instead they heard a strongly worded retort to recent congressional attacks on federal judges and to proposals to use Congress's control over the federal budget to coerce the Supreme Court into allowing cameras in federal courtrooms. Justice O'Connor's speech (and the imminent hearings for her proposed replacement, Judge Samuel Alito) remind us of importance of the relationship between the legislative and judicial branches and of the need to confront the potentially conflicting goals of judicial independence and judicial accountability.

As we think about these issues we must look first at the Good Behavior Clause in Article III, Section 1 of the Constitution, which states that all federal judges "shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." This clause, with language borrowed from the British Settlement Act of 1701, was designed to give federal judges the kind of judicial independence guaranteed to British judges, but denied to their colonial counterparts. But what does the good behavior standard mean? In particular, how does it relate to the Impeachment Clause in Article II, Section 4, which allows Congress to remove all "civil officers," including federal judges, if a majority of the House and two-thirds of the Senate find them guilty of "treason, bribery or other high crimes and misdemeanors?" One might argue (and, Sai, maybe you will take this up) that the Good Behavior Clause sets a higher standard for federal judges than the Impeachment Clause and that Congress could specify methods for removing federal judges other than through the impeachment process.

There may be some logic to this argument, but it has not met with the approval of history. In the 206 years since the ratification of the Constitution, no federal judge has ever been removed from office other than through impeachment by the House and conviction after a trial in the Senate. Although the Supreme Court has never directly ruled that impeachment is the exclusive method for removing federal judges, it has stated so in dicta on a number of occasions. The great majority of scholars (as well as the National Commission on Judicial Discipline and Removal, established by Congress to examine issues relating to federal judicial tenure) agree that federal judges may not be removed except through the cumbersome impeachment process. The Good Behavior Clause simply does not allow removal of federal judges other than by impeachment. And, more broadly, as Justice O'Connor reminded us, the Clause says to Congress, "Hands off the federal courts."

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Prakash: 12/20/05, 08:05 AM
Todd, you've given us much to chew on. We know that judges may be removed via impeachment (they are civil officers within the meaning of that clause). We also know that the impeachment provisions, by themselves, do not proscribe the sole means of removing officers. The President may remove executive officers. The courts may remove their appointees (or so the Supreme Court has said in a case called In Re Hennen).

The key question is whether some other constitutional provision makes impeachment the sole means of removing judges. People who reach this conclusion typically cite the provision that guarantees that judges may serve "during good behavior." Apparently, these folks assume that serving during good behavior is a not-so-obvious reference to impeachment. Perhaps bad behavior is a synonym for high crimes and misdemeanors, meaning that if you are impeached for high crimes and misdemeanors, you have misbehaved and can no longer avail of the guarantee of tenure during good behavior.

This conflation of impeachment and good behavior tenure is wholly mistaken, at least as a matter of 18th century meaning. In a forthcoming article, Steve Smith and I show that good behavior tenure has no necessary relationship to impeachment. A grant of good behavior tenure was a guarantee that one could not be removed absent a judicial finding of misbehavior. In England and the colonies, this judicial finding would normally occur in the regular courts and never occurred in the context of impeachment.

Further disassociating the two concepts, good behavior tenure could be granted with respect to anything that one might hold: licenses, jobs, offices, land, and the like. People granted good behavior tenure with respect to landholdings or a job were not promised the right to stay in possession until such time Parliament might impeach and convict them. Instead, they were promised the right to stay in possession so long as no ordinary court concluded that they had misbehaved. Once again, good behavior tenure had nothing to do with impeachment.

The state constitutions also reflect that these two concepts, impeachment and good behavior tenure, were distinct. Some state constitutions expressly granted good behavior tenure without any impeachment process. These constitutions made such officers removable by an ordinary judicial finding of misbehavior. Any other conclusion would mean that such officers were simply not removable at all, something that flies in the face of the historical meaning of good behavior tenure. Other constitutions explicitly listed two means of removing judges: via impeachment and via proof of misbehavior in the courts. These constitutions expressly confirmed that good behavior had no necessary relationship to impeachment.

Steve Smith and I believe that the Constitution, by granting tenure during good behavior, leaves it up to Congress to authorize the removal of judges for misbehavior. Any such process must be a judicial one with a trial, presentation of evidence and witness, cross-examination, and so forth.

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Peterson: 12/21/05, 03:11 PM
Sai, you make a lot of interesting points. It is certainly true that the term "good behavior" was in frequent use as a term of art back in 18th Century England, and it was not always associated with impeachment. Even though the framers borrowed the term from a British statute, there is no doubt that they intended to make a break with English practice in many ways. For example, they expressly rejected removal of federal judges by joint address (a majority vote in each House of Congress) even though that form of removal was well-established in English law. So the British practice you cite doesn't help us much here. There is also no doubt that some states have good behavior clauses without impeachment clauses. But the fact that it is possible to have a good behavior clause and not link it to impeachment does not mean that the Framers intended that result in the federal Constitution. Finally, you are right that the Impeachment Clause does not provide the sole method of removal for all "civil officers" of the United States. But the question is not whether some civil officers (like members of the cabinet) may be removed in other ways (by their superior officer, the president), but rather whether the clause is exclusive with respect to some other civil officers. Surely you wouldn't suggest that Congress can provide some method other than impeachment for the removal of the President and Vice President. If that is true, then there is even more reason to read it as exclusive with respect to federal judges, who need far more protection from political influence than the president and vice president.

But the real problem is that, as interesting as your arguments are, it is just too late in the game for them to have any force. We now have 216 years of history under the Constitution, and no judge has ever been removed by any other means than impeachment. And it's not as if this issue was never discussed. When the state ratifying conventions were debating the Constitution, both proponents (Alexander Hamilton in The Federalist No. 79) and opponents (the Antifederalist essayist Brutus) agreed that federal judges could be removed from office only through the impeachment process. Shortly after the adoption of the Constitution, during debates on the seminal Judiciary Act of 1789 and other bills relating to the fledgling federal judiciary, members of Congress (including Gouverneur Morris, himself a member of the Constitutional Convention) acknowledged that impeachment was the sole method for removing a federal judge, and no one argued to the contrary.

It's not as if those early Congresses didn't have an incentive to provide some method other than impeachment for removal of judges. The Jeffersonian Congress wanted to rid itself of the Federalist judges remaining on the bench after the departure of John Adams from the White House. They impeached and convicted a Federalist circuit judge and impeached and tried Samuel Chase, a Federalist justice of the Supreme Court. But despite their frustration at not being able to convict Justice Chase and their inability to go after their ultimate target, Chief Justice John Marshall, they acknowledged during the trial of Justice Chase that the impeachment process was the sole method for removing a federal judge from office. Subsequent Congresses up to our own time faced the same temptation to provide a quicker route to removal than impeachment, but failed to do so. After a series of time-consuming impeachment proceedings in the 1980s, Congress looked for a way to streamline the process, particularly in the case of a federal judge who had already been convicted of a felony. Yet the National Commission on Discipline and Removal, created by Congress to explore these alternatives, concluded that impeachment was the sole method for removing federal judges, and Congress again failed to reach beyond the Impeachment Clause for a means to remove federal judges.

At some point in time, historical practice under the Constitution becomes so well-entrenched that even very thoughtful and well-researched arguments to the contrary (as yours certainly are, Sai) are unavailing. The Supreme Court has recognized on more than one occasion that custom and practice tell us a lot about what the Constitution means. In this case, we have the entire history of the Constitution telling us that impeachment is the only way to remove a federal judge.

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Prakash: 12/22/05, 09:36 AM
As you admit, Todd, one important question is what did good behavior mean in 1789. As you also admit, English law and several state constitutions clearly distinguished good behavior tenure from impeachment. These terms were never regarded as synonymous prior to the Constitution's creation.

The question is whether the Constitution conflated impeachment and good behavior tenure in a new and odd manner. At least two reasons suggest not. First, misbehavior (the behavior that forfeits good behavior tenure) is not the same as high crimes and misdemeanors. It was not so understood in England, the colonies, or the states. From our research, we think that conduct that would constitute misbehavior would not always also constitute a high crime and misdemeanor. If we are right, any claim that impeachment is the only means of removing judges actually grants judges a tenure more secure than tenure during good behavior. Sometimes, it would be impossible to remove misbehaving judges who had violated a condition of their tenure. We don't think the Constitution enshrines this odd (and unprecedented) gap.

Second, assuming that misbehavior and high crimes and misdemeanors are synonymous terms, the Constitution never provides that impeachment is the sole means of judging misbehavior. Because impeachment was never a means of judging misbehavior in England and the colonies, it is wrong to read into the Constitution an exclusivity that lacks hardly any historical pedigree.

Given background understandings, for the Constitution to have made impeachment the exclusive means of judging misbehavior, the Constitution would have had two features. First, it would have said that misbehavior is an impeachable offense.

Second, it would have said that impeachment is the sole means of judging misbehavior. Interestingly, Jefferson's 1783 draft Constitution for Virginia contained these features, but made impeachment the exclusive means of judging misbehavior for certain judges only. Other judges would have their misbehavior judged in the ordinary courts.

The second important question is what to make of all this in light of 200 plus years of practice. You argue that because we have never had a non-impeachment process of removing judges, that we cannot have one now. You also note that several smart people thought that impeachment was the only means of removing judges.

There has never been an informed, meaningful discussion or debate about the meaning of good behavior. Each of the comments you cite (and you could surely cite others) were made in contexts where the meaning of good behavior was not the central issue. As a result, there has never been a collective decision by anyone (Congress, the president, the courts, the people), either that impeachment is the sole means of removing judges or that good behavior tenure is a synonym for "removable only by impeachment."

Had there been some meaningful debate about this issue, of the type that took place in the first Congress in connection with a presidential removal power—the Decision of 1789—then perhaps you would have a point. There would still be some who might say that the meaning of the Constitution does not change merely because some governmental officials misread it at some point. Still, at least we would have had a thoughtful, vigorous debate about a question (the meaning of good behavior and its connection to impeachment) that might be entitled to some deference. What we have instead is inaction being treated as if it were some thoughtful, informed decision. If the Constitution's meaning can change, surely we need more than just congressional inaction to ratify and accept this change.

Here's a question, Todd (and for the many others out there resisting the idea that impeachment is not the only means of removing judges): Suppose for two hundred years, Congress had never enacted legislation meant to help guarantee the states a republican form of government. And suppose, with scant debate and even less analysis, a handful of people over time had said that Congress could not enact any such legislation, based on a cursory review of the Constitution. Would you then believe that this "practice" had precluded Congress from enacting a legislation meant to help guarantee republican government?

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Peterson: 12/23/05, 01:30 PM
The problem with your textual argument, Sai, is that it conflates "would" with "could." Sure, the Framers could have made it clearer that impeachment was the exclusive method for removing judges, but that does not mean that they would have made it clearer if that had been their intention. The Constitution is notoriously imprecise on many subjects, and this is certainly one of them.

So what do we do in cases like this? We look at what the Framers said during the debates, and we look at the way the constitutional language was interpreted thereafter. Here is where you have a real problem because there are a number of comments at the time of the ratification debates stating that impeachment is the sole method of removing federal judges, and there just aren't any comments going the other way. And if we are going to talk about what the Framers would have done, it is certainly clear that in the years following the adoption of the Constitution, Congress would have provided for some means of removal other than impeachment if it had thought it constitutionally permissible. Jefferson's supporters in Congress would have liked nothing better than to find an easier way to rid themselves of Federalist judges.

Your principal answer to the long and unbroken constitutional history is to say that there has never been an informed or meaningful discussion of the issue. I've got three responses to that point. First, it hardly supports your conclusion to say that there never has been a serious dispute about the issue. That really makes a virtue out of a vice. The reason for what you call a lack of extensive debate is that everyone pretty much agreed that impeachment was the only way to remove federal judges.

Second, it's not as though no one thought of a possible counter argument; scholars have raised the issue before. Burke Shartel wrote a well-known three-part series of articles in the 1930s arguing for your interpretation of the Good Behavior Clause, and Raoul Berger did the same in his 1973 book on impeachment. Their arguments never gained much traction because the scholarly consensus is so overwhelmingly in favor of the exclusivity of impeachment.

Third, as I've noted before, Congress created the National Commission on Judicial Discipline and Removal in the early 1990s to look at the full range of issues related to the discipline and removal of federal judges. The Commission included representatives from all three branches of the federal government as well as eminent constitutional scholars. After a very careful review of all relevant research (including reports from academic consultants), the Commission agreed that impeachment is the only means for removing federal judges.

But the real crux of this entire debate is contained in your complaint that conduct that would constitute misbehavior might not rise to the "high crimes and misdemeanors" standard required for impeachment. Here is where you and I really disagree. This supposed gap has never caused any significant problems within the federal judiciary, and any effort to expand the reasons for which federal judges may be removed is sure to cause great mischief. There just isn't a big problem with misbehaving judges on the federal bench. To the extent that federal judges act improperly but in a manner short of impeachable conduct, the Judicial Conduct and Disability Act gives circuit councils and chief judges the power to discipline judges short of removal.

On the other hand, if we gave Congress the power to specify removal standards short of those required for impeachment, we would introduce the possibility of dangerous congressional interference with the independence of the federal courts. There are always those in Congress who would like nothing better than to seize on any way they can to influence federal judges. Why would we ever want to enhance that power?

Justice O'Connor warned us about the danger of mixing congressional politics with the federal courts. We should heed her advice and reject any effort to give Congress more control over judicial tenure.

Prakash: 12/23/05, 10:42 PM
Todd this has been great fun.

But I am afraid you have overplayed your hand.

Your best arguments are ratification history, 200 years of practice, and scholarly consensus. Each has significant weaknesses, as you surely know.

On ratification: There are but a handful of ratification comments favoring your position, certainly not enough to firmly establish that impeachment is the only means of judging misbehavior. This is especially true since the background history from England, the colonies, and the states clearly disfavors your reading. And, of course, the Constitution's text never makes impeachment the sole means of removing judges.

On practice: The first Congress enacted a statute providing that judges who were convicted of receiving bribes would be forever disqualified from holding office. In other words, judges would be ousted from office without undergoing impeachment. As I pointed out earlier, there never has been a decision made by anyone (courts, Congress, president), that impeachment is the sole means of removing judges. On the other hand, there has been a decision made by Congress and the president that Congress could enact statutes that removed judges upon conviction of misbehavior in an ordinary court of law. These statutes existed in England as well, further confirming that good behavior tenure could be judged in the ordinary courts. Given this statute, I don't see why practice favors your view.

On the scholarly consensus: The meaning of some legal text is not decided by conducting an opinion poll amongst legal scholars. And for good reason, because consensus is often quite wrong. Why? Because those who comprise a consensus are often ill-informed. Witness the frenzy to sign letters to Congress. Oftentimes these letters are signed by people with little or no expertise on the subject of the letter. How many members of the scholarly consensus that you lionize have done research in this area? How many have even read the Shartel and Berger pieces that you cite? I doubt the numbers are very large. I have some personal experience here. I was part of the consensus prior to doing research on the meaning of good behavior tenure.

Additionally, a consensus merely reflects the current state of opinion. There have been others who have raised arguments similar to the ones Steve and I raise in our unpublished article (we would like to think that we have raised different claims with much more historical evidence in support of them but others will have to judge that). As more people turn their attention to the meaning of good behavior tenure and conduct their own research, the scholarly consensus may change. Just to be clear: A change in the consensus wouldn't mean that Steve and I are right, any more than the current consensus suggests that you are correct.

Finally, there is your specter of Congress abusing its power (e.g., decreeing that being a liberal judge is a form of misbehavior). As you surely know, any power may be abused. The ever-present possibility of abuse is not a sound argument against the existence of any power. In any event, the possibility of abuse exists with respect to impeachment right now. If the House and the Senate want to target some judge, they already can claim that some innocuous behavior is a high crime and misdemeanor.

Here's where the traditional understanding of good behavior would be helpful. We might all agree that certain impeachable offenses also amount to misbehavior. We might then agree that as part of the punishment for such actions, judges could be removed in the ordinary courts upon conviction of the underlying offense (think of the bribery statute passed by the early Congress). Such statutes would save Congress the need to have to conduct a costly, time-consuming, wasteful second trial in order to convict judges of crimes of which they have already been found guilty.

Should Congress ever enact such a statute, it would not, contrary to your fears, be engaging in some witch hunt. Instead, Congress would be carrying into execution the Constitution's grant of a conditional, limited tenure upon federal judges. Nothing would be more appropriate and proper.

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