Reply: (mis)understanding good-behavior tenure.

• Author: Prakash, Saikrishna
• Position: Response to article by Martin H. Redish in the same issue, p. 139

Conventional wisdom regards impeachment as the only means of removing federal judges, so that the good-behavior tenure provision of Article III must be understood as an awkward cross-reference to the impeachment provisions of Article II. In How To Remove a Federal Judge, (1) we argue that the conventional wisdom is mistaken, at least as a matter of original meaning. At the Founding, "good Behaviour" was a term of art referring to a generic tenure that could be granted to anybody with respect to any item that might be held (e.g., jobs, licenses, land). The phrase meant that the holder could be deprived of the item only through a judicial proceeding establishing misbehavior. For centuries, this process of judging whether someone with good-behavior tenure had misbehaved occurred in ordinary trials outside of the impeachment process. Given this background, if impeachment was to serve as the sole means of judging misbehavior, a constitution would have to expressly provide as much precisely because it was an unusual departure from prior practice. Our Constitution lacks any hint that it makes impeachment the sole means of judging misbehavior, leading us to conclude that the Constitution, as originally understood, permitted removal of misbehaving judges by means other than impeachment, i.e., the traditional judicial process of ordinary trials.

In his response to our article, Professor Martin Redish ably defends the orthodox view. He contends that we are mistaken on two levels--on the clause-oriented level of what "good Behaviour" meant (or means (2)) and also on the more "holistic" level of the overall constitutional design. That design, Redish believes, includes an unyielding commitment to judicial independence incompatible with the removal of judges except via impeachment.

We are honored that Redish has carefully scrutinized our article (3)--and also heartened. If our position is mistaken, a scholar of his stature and undoubted expertise in this field would surely be able to point out its errors. While Redish does indeed raise important objections, we believe our interpretation survives his objections; it remains demonstrably the most plausible reading of what "good Behaviour" meant at the Founding.

1. THE INTERPRETIVE SIGNIFICANCE OF JUDICIAL INDEPENDENCE

   We begin with Redish's "holistic" argument, in part because Redish himself regards it as more important, (4) but also because he invokes this concern to justify imposing an exceedingly high burden of proof with respect to our claim about the meaning of good behavior. Redish's argument is straightforward: judicial independence is a vital, even paramount commitment in our constitutional scheme, so that any interpretation that would seriously jeopardize judicial independence (as Redish thinks our interpretation would) is presumptively unacceptable.

   Redish's argument is misconceived, we think, for two reasons. In the first place, he overstates the extent to which the original meaning of good-behavior tenure would undermine judicial independence. Second, Redish's "holistic" argument is lopsided and hence unpersuasive.

   1. Removal for Misbehavior Does Not Jeopardize Judicial Independence

      In our article, we argue that if the original meaning of the "good Behaviour" provision were embraced, then Congress could enact statutes using its necessary and proper authority (5) permitting the removal of judges for misbehavior. Redish argues that such statutes would be "devastating" to, and would "effectively gut[]," judicial independence. (6) We think this is hyperbole.

      As we explained, any removal procedure authorized by Congress would have to be conducted in a court with all of the traditional judicial safeguards--rights to receive proper notice, to have the assistance of counsel, to examine and cross-examine witnesses, to argue both factual and legal points, to be deemed innocent of misbehavior until proven guilty. In the event of an unfavorable outcome, a judge would have the opportunity to appeal--all the way to the United States Supreme Court, if necessary. And if Congress were to define misbehavior in a way inconsistent with the original understanding--by making trivial derelictions removable offenses, for example--a court would be obligated to invalidate such a provision.

      Indeed, as between impeachment by Congress and removal through a legal procedure for misbehavior, it is arguable that the latter procedure affords more protection to an accused judge. With impeachment, a judge can be removed by officials who act and are expected to act as politicians, under a standard that (as Gerald Ford famously remarked (7)) can as a practical matter mean whatever Congress wants it to mean, and without any possibility of appeal. (8) In an action for misbehavior, by contrast, a judge could be removed only through a procedure conducted by a court and complying with "due process of law," and with the possibility of appeal to a higher tribunal not immersed in the conflict and emotions of the trial.

      Noting (correctly) that the meaning of "good Behaviour" is imprecise, Redish appears to worry that Congress might authorize removal of judges merely for making legal rulings that someone else--Congress or the President, perhaps--opposes. (9) But although the precise meaning of misbehavior (like that of most other provisions in the Constitution) would indeed be the subject of dispute, it seems clear that the standard could not plausibly be interpreted in the way Redish fears. Indeed, had disagreement on judgments been enough to remove judges, the Crown could have removed judges willy-nilly. Of course, this never happened, precisely because issuing a judgment that the Crown disagreed with was not a form of misbehavior. Such a construction would in effect convert good-behavior tenure into tenure during pleasure: the President or some other party with standing could seek to have a judge removed merely because she did not like the way the judge had ruled in cases. As our article explains, the essential point of giving good-behavior tenure was to ensure that a judge did not hold the office at the pleasure of the Crown or anybody else. Hence, whatever else one might say about our claims, it is perfectly clear that Congress cannot...