How to remove a federal judge.

• Author: Prakash, Saikrishna

ARTICLE CONTENTS INTRODUCTION I. MODERN MISCONCEPTIONS A. Impeachment and Removal B. A Case of Mistaken Conflation C. The Beguiling Role of Judicial Independence II. THE MEANING OF TENURE "DURING GOOD BEHAVIOUR" A. Good-Behavior Tenure: An Overview B. Good Evidence About Good Behavior 1. From Seventeenth- and Eighteenth-Century England 2. From Colonial America 3. From Independent America C. The Relation of Impeachment and Good Behavior 1. Originally Unrelated Means of Removal 2. A New, Nonexclusive Means of Judging Good Behavior D. The Constitution's Creation E. The Constitution's Early Years and Beyond III. JUDGING MISBEHAVIOR IN THE ORDINARY COURTS A. Removal as a Consequence of a Criminal Conviction B. Civil Forfeiture of an Office C. Judicial Disciplinary Proceedings D. Defining Misbehavior CONCLUSION INTRODUCTION

It is a virtually unquestioned assumption among constitutional law cognoscenti that impeachment is the only means of removing a federal judge. But why? The constitutional text does not expressly say as much. The text does not even connect the provision for judicial tenure "during good Behaviour" (1) to impeachment. (2) In fact, these provisions are found in entirely different Articles, suggesting that they stand independent of each other. Why, then, do so many regard it as axiomatic that impeachment is the exclusive method of removing a federal judge?

Perhaps the standard assumption derives from something deeply embedded in the constitutional text or structure. Though the text does not expressly say that judges may be removed only through impeachment, maybe a more careful reading reveals a hidden connection. For example, given that the original Constitution explicitly mentions removal only in the impeachment provisions, (3) scholars might infer that impeachment must be the exclusive means of removing judges. (4) Others might suppose that tenure "during good Behaviour" is actually synonymous with "removable only via impeachment." For instance, Professor Martin Redish has argued that "the good-behavior language must be construed as nothing more than a cross-reference to the availability of impeachment." (5) Finally, at least one scholar has suggested that because only judges have good-behavior tenure, the Constitution might be best read as making it more difficult to impeach federal judges than other officers. (6)

Another justification for the standard assumption might be history. Neither impeachment nor good-behavior tenure originated with the Constitution. If we look to the English and American history that preceded the Constitution, we might unearth an obscure but nonetheless deep link between good-behavior tenure and impeachment. Perhaps history reveals a consensus that good-behavior tenure simply meant "removable only through impeachment." (7)

These possible rationales for the conventional wisdom are unpersuasive and ahistorical. First, these rationales run counter to the customary meaning of good-behavior tenure. As understood throughout the seventeenth and eighteenth centuries, tenure during "good Behaviour" referred to a legal standard by which one could terminate tenure. The standard, everyone agreed, meant that someone with good-behavior tenure could be removed for misbehavior. (8) An officer appointed to serve only during good behavior who then misbehaved obviously had violated the conditions of her tenure. (9)

Second, the means of determining misbehavior, everyone agreed, was a judicial process. 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. This judicial process outside the control of the tenure grantor was necessary to ensure that the grantor did not oust people who had not misbehaved. If the grantor could remove without misbehavior, it would make the supposedly durable grant of good-behavior tenure akin to a fickle grant of tenure during pleasure.

Third, good-behavior tenure was not something peculiar to judges. Executive officers might have such tenure. More importantly, ordinary persons could have good-behavior tenure. To have good-behavior tenure meant no more than that one was entitled to hold something (to have "tenure" (10)) so long as one behaved well. Hence anyone who could grant someone else tenure might grant it during the grantee's good behavior. In this way, land, licenses, employment, and many other things could be granted to someone during her good behavior.

Fourth, while impeachment was a means of judging misconduct of various sorts, it was not viewed as a means of determining whether someone had forfeited her good-behavior tenure. In England and the colonies, ordinary courts determined whether government officers with good-behavior tenure had misbehaved. Likewise, private individuals with good-behavior tenure in land, licenses, or the like would have their supposed misbehavior adjudicated in the ordinary courts. There was no need to beseech Parliament or the local assembly to impeach and convict individuals of misbehavior. Indeed, it would have been ridiculously impractical if the only means of ousting a person who held a job or land during good-behavior tenure was to petition Parliament or the local assembly to impeach and convict. Hence it is not surprising that in England and the colonies, impeachment

was not even considered a means of judging misbehavior.

Fifth, the revolutionary state constitutions generally followed this practice of judging misbehavior in the ordinary courts. Only one, the New Jersey Constitution, provided that impeachment could be used to judge misbehavior, but even this constitution did not specify that impeachment was the exclusive means of removal. Many more state constitutions made it clear that misbehavior could be determined in the ordinary courts. Some explicitly said as much. Others granted tenure during good behavior but established no impeachment process, thus implicitly incorporating the conventional means of judging misbehavior--i.e., a trial in the ordinary courts.

Given the centuries-old tradition of adjudicating misbehavior in the ordinary courts, the better reading of our Constitution is that it left intact this customary means of judging misbehavior. The Constitution never specifies that impeachment is the exclusive means of removing officers. Nor does it contain any language hinting that it adopts an idiosyncratic meaning of good-behavior tenure. Had the Constitution meant to preclude the use of ordinary courts to judge misbehavior, it would have explicitly provided that impeachment was the only means of judging misbehavior. It would have tracked Thomas Jefferson's Proposed Constitution for Virginia, which specified that impeachment would be the sole means of judging certain official misbehavior. (11) Jefferson perhaps understood that if an impeachment tribunal was to enjoy a monopoly on judging misbehavior, that monopoly would have to be express. Otherwise, people would assume that the ordinary courts could continue to judge whether someone with good-behavior tenure had misbehaved, as they had been doing for centuries.

Put another way, for at least two centuries prior to the Constitution's creation, good-behavior tenure had no necessary relationship to impeachment. Officers might have good-behavior tenure in a regime that wholly lacked impeachment. Conversely, a regime might feature impeachment without any of its officers' having tenure during good behavior. Moreover, regimes that featured impeachment dearly sanctioned the removal of officers with good-behavior tenure by means other than impeachment. Finally, private individuals with good-behavior tenure could have their tenure terminated in the ordinary courts. Hence, in 1787 impeachment was hardly considered the sole means of removing someone with tenure during good behavior. Because the Constitution has nary a clue that it establishes any connection between good-behavior tenure and impeachment, the better reading is that impeachment is not the exclusive means of removing federal judges. Instead, the Constitution adopted the then-established view that officers with good-behavior tenure forfeited their offices upon a finding of misbehavior in the ordinary courts. (12)

Others have argued that judges may be removed by means other than impeachment. (13) This Article differs from these prior treatments in providing a more comprehensive understanding of good-behavior tenure. In particular, we demonstrate several propositions for the first time: (1) that the English understanding of good-behavior tenure migrated to the colonies and continued in independent America; (2) that good-behavior tenure was not limited to government officials but could be granted to anyone, including tenants in land, licensees, and employees; and (3) that both the Continental Congress and the state constitutions clearly did not equate good-behavior tenure with impeachment. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment.

Congress, using its authority under the Necessary and Proper Clause, (14) may establish any number of mechanisms for determining whether a judge has forfeited her office through misbehavior. Congress, however, must ensure that any such mechanism consists of a judicial process--a trial, presentation of evidence, witnesses, etc. In other words, Congress can pass statutes that help implement the federal government's authority to remove federal judges who have misbehaved. (15)

To make our case, Part I argues that the Constitution's text never equates good-behavior tenure with impeachment. Part II traces the meaning of good behavior in the seventeenth and eighteenth centuries and establishes that good-behavior tenure terminated upon a judicial finding of misbehavior. Finally, Part III briefly considers permissible methods of establishing that a judge has forfeited her office through...