Response: good behavior, judicial independence, and the foundations of American constitutionalism.

• Author: Redish, Martin H.
• Position: Response to article by Saikrishna Prakash and Steven D. Smith in this issue, p. 72

INTRODUCTION

The so-called Good Behavior Clause of Article III (1) could well be the most mysterious provision in the United States Constitution--and that, of course, is really saying something. While constitutional text was on occasion chosen for the very purpose of avoiding the resolution of, rather than resolving, disputes, (2) and while ambiguity permeates many of the most famed and controversial provisions, (3) rarely are a provision's purpose, scope, and methodology so totally nonexistent to the naked eye.

It is simply unclear, on the face of it, what the provision is all about. One can search the text in vain for any indication of how the concept of "good Behaviour" is to be defined, who gets to make that determination, and what the method for implementation and enforcement of this provision actually is. Moreover, the text provides absolutely no basis on which to attempt to harmonize the Good Behavior Clause with the Constitution's other provisions pertaining to the independence or control of the federal judiciary. Perhaps for these reasons, both courts and Congress have largely ignored the provision, choosing instead to focus the political control of the judiciary on the constitutionally recognized congressional powers to regulate federal jurisdiction (4) and to impeach federal officers (including federal judges). (5)

Scholars, too, have focused on the Good Behavior Clause only rarely. (6) For these reasons Professors Saikrishna Prakash and Steven Smith, both noted and respected constitutional scholars, are to be applauded for finally assuming this scholarly challenge and responding to it with so controversial and innovative a solution. In their article, How To Remove a Federal Judge, (7) these scholars argue that the Good Behavior Clause is constitutionally capable of playing a far greater role in policing federal judges than it has played up to now. They contend that the traditionally accepted view that impeachment provides the exclusive constitutionally recognized means of removing federal judges from office is "unpersuasive and ahistorical." (8) The "better reading," they suggest, is that under the Good Behavior Clause "officers with good-behavior tenure forfeited their offices upon a finding of misbehavior in the ordinary courts." (9) They see the Clause as providing a means for the political branches to regulate the federal judiciary, above and beyond the impeachment power recognized in Article II, Section 4. Moreover, they argue, the standard of improper judicial conduct that justifies invocation of the Good Behavior Clause--while concededly quite murky--must stand at a point that is distinctly lower than that set by the "high Crimes and Misdemeanors" language of the Impeachment Clause. (10) The upshot of acceptance of their proposal would be the recognition of a potentially dramatic expansion in the ability of the political branches to remove from office federal judges protected by the qualified life tenure and salary guarantees of Article 111. (11)

The Prakash-Smith article quite clearly represents the strongest possible compilation of arguments to support so sweeping and radical a doctrinal alteration in the constitutionally authorized practice for removing federal judges. Close analysis, however, reveals that their historical arguments by no means inexorably lead to the constitutional conclusion they reach. To the contrary, a detailed critical review of those arguments shows them to be counterintuitive, incomplete, or inconsistent with unambiguous historical evidence. Ultimately, Prakash and Smith fail to meet their burden of historical proof to show that those who drafted and ratified the Constitution intended, by use of the "good Behaviour" language, to incorporate wholesale the preconstitutional historical practice.

Far more problematic, however, is their deeper flaw: their failure to deal adequately with the broad--and troubling--theoretical implications of their suggested construction of the Good Behavior Clause for foundational notions of American constitutionalism. Because their examination of the "trees" of historical practice is so thorough and seemingly convincing, (12) it is all too easy to ignore the "forest": the extremely problematic effect that their proposed interpretation would have on the vital role that federal judicial independence necessarily plays in preserving the foundations of our political and constitutional structure. Put bluntly, by substantially expanding the ability of the political branches to remove, and therefore intimidate, members of the federal judiciary, the Prakash-Smith proposal seriously endangers the ability of the independent federal courts to police the constitutional excesses of the political branches and to protect individual rights from majoritarian incursion. By threatening the meaningful exercise of judicial review as a check on the majoritarian branches--and make no mistake, that is undoubtedly the result that the Prakash-Smith proposal would lead to (13)-- their suggested construction of the Good Behavior Clause would dangerously upset the delicate balance of checks and balances the Framers so wisely developed.

As a textualist, (14) I would be forced to accept their proposal were I convinced that it represented the only reasonable construction of the applicable constitutional text, regardless of how dangerous I believed it to be to the foundations of American constitutionalism. After all, as Henry Hart once asked, "Whose Constitution are you talking about--Utopia's or ours?" (15) But even Prakash and Smith readily concede that their approach is not the only reasonable construction of the text. To the contrary, they acknowledge that, as a purely textual matter, one might believe that the Good Behavior Clause can be read to be nothing more than a cross-reference to the standard for impeachment described in Article II, Section 4. (16) So viewed, the language would be designed simply to prevent possible confusion and conflict between the otherwise unlimited judicial tenure dictated by Article III and the directive of Article II subjecting federal judges to removal from office through exercise of the impeachment power. (17)

When a textualist is faced with more than one linguistically plausible option, the text can of course no longer control the ultimate interpretive choice. Thus, in making that choice it is both necessary and appropriate for the interpreter to attempt to determine what effect each of the alternative constructions would have on both the textual framework of judicial independence and the role that judicial independence is properly deemed to play within the broader framework of American constitutional and political theory. This, I believe, Prakash and Smith have failed to do, or at least to do adequately. (18) Instead, they have employed a form of "constitutional isolationism," in which each provision is interpreted largely in a textual and political vacuum, without any meaningful examination of how the chosen interpretation fits within this more holistic constitutional structure. (19)

There are, then, two different levels on which to critically assess the Prakash-Smith interpretation of the Good Behavior Clause: narrowly, i.e., by examining the text and its history in an interpretive vacuum, considering only the words that appear within its four corners, and holistically, i.e., by construing Article III's text as merely one element within a broader, organic whole. It is my view that their suggested interpretation of the good-behavior provision fails on both grounds. In Part I, I explain why their historical and textual arguments fail on the narrow level. In Part II, I explain that the Prakash-Smith construction of the Good Behavior Clause fails on the holistic level because it is inconsistent with the role that judicial independence must play for the system to operate effectively within the framework of American constitutional and political theory.

1. CONSTITUTIONAL HISTORY AND THE GOOD BEHAVIOR CLAUSE

   1. The Prakash-Smith Argument

      Professors Prakash and Smith make an elegantly simple argument to support their position that the Good Behavior Clause provides a distinct means, above and beyond the impeachment power, by which the political branches may remove federal judges from office. They meticulously demonstrate that, under established preconstitutional practice (on both sides of the Atlantic), "good Behaviour" was a term of art, employed as a basis for removing a wide variety of both public and private officeholders from office through resort to the judicial process. (20) Apparently, this practice had no clear relationship to the wholly distinct process of impeachment. Thus, when the Framers inserted the term "good Behaviour" as the qualifying standard on the otherwise unlimited tenure of federal judges in Article III, it would be "ahistorical," (21) Prakash and Smith believe, to construe the "good Behaviour" language as simply a cross-reference to the "high Crimes and Misdemeanors" standard for impeachment set out in Article II, Section 4, to which federal judges are also subject.

      While Prakash and Smith are certain that, as a historical matter, "good Behaviour" represented a distinct, self-contained means for removing officeholders above and beyond the impeachment power, they are far less certain "about what constituted misbehavior." (22) They do suggest--without a great deal of explanation--that the "'good Behaviour' provision ... seems more general and less severe" in its standard for removal than does the "high Crimes and Misdemeanors" language of the Impeachment Clause. (23) In defining the "good Behaviour" standard in preconstitutional historical practice, they occasionally refer to "[t]hose who did not exhibit good behavior--i.e., those who misbehaved." (24) This explication, however, is far from helpful. Although they acknowledge that what constitutes constitutionally recognized "misbehavior" under...