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Behold Judge Jailbird. Duly convicted of receiving bribes or tax evasion, the not-so-honorable judge now makes his chambers in a cell. But until Congress manages to impeach and convict him, Judge Jailbird continues to draw his six-figure salary and remains a judge. A grotesque spectacle, you say, but one mandated, alas, by the constitutional guarantee that federal judges can be removed solely by impeachment? Well, . . . no. Contrary to the orthodoxy, nothing in the Constitution mandates that impeachment be the exclusive method for removing misbehaving judges.

I. The Constitutional Text

The Constitution authorizes the impeachment of federal judges, but it nowhere says that they can be removed only through impeachment. Nor do the Constitution’s relevant provisions easily lend themselves to any such reading.

Articles I, II, and III respectively define the tenures, including the conditions that can terminate tenure, for the principal legislative, executive, and judicial officials. For example, Article I provides that a Senator’s tenure terminates upon the expiration of a six-year term, by “Resignation, or otherwise,” or (in the case of a Senator appointed to fill a vacancy) upon “the next Meeting of the [state] Legislature.” Similarly, Article III conditions a judge’s tenure on continued “good Behaviour”; the clear implication is that misbehavior can terminate a judge’s stay in office.

In addition to other tenure-terminating contingencies, Article II, Section 4 provides for impeachment as an alternative means of removal: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” This additional means of removal does not negate or displace other tenure-terminating provisions. Everyone concedes this point with respect to executive officials; no one thinks that because a Secretary of State can be impeached, he or she can be removed only through impeachment. There is no reason for a different conclusion with respect to judges. In fact, the impeachment provisions do not single out or even expressly mention judges: like Secretaries of State, judges are simply included in the general category of “civil officers of the United States.”

Nor does Article III’s good behavior provision suggest that it merely cross-references Article II’s impeachment provision. To the contrary, the “good Behaviour” requirement is manifestly not identical to the standard for impeachment: “treason, bribery, or other high crimes and misdemeanors.” The separate standards corroborate what the natural reading of the separated impeachment and “good Behaviour” provisions already suggests, namely, that these provisions refer to independent tenure-terminating contingencies.

Those who think judges may only be removed by impeachment might suppose that history reveals that “good Behaviour” was a term of art that meant something like “tenure for life defeasible only by impeachment.” History actually proves that good behavior was independent of impeachment.

II. Independent Concepts: “Good Behaviour” Tenure and Impeachment

In English law, good behavior (quamdiu se bene gesserit) was a familiar legal term commonly used to describe tenure in such items as property, offices, employments, and licenses. The term meant that possession of the item would continue until the holder was shown, in a judicial proceeding, to have misbehaved. A grant during good behavior was distinguished from appointment during pleasure (durante bene placito). Thus, someone granted tenure during pleasure could be removed at will by the grantor, but someone granted tenure during good behavior could be removed only upon being convicted of misbehavior in a judicial proceeding. This understanding was affirmed over and over again during the seventeenth and eighteenth centuries. Contrary to what one might suppose, good behavior tenure was not something peculiar to judges, or even to public officials. Private parties could and did grant good behavior tenure.

As we have documented in the latest print issue of this Journal, the same understandings prevailed in English colonies. On the eve of the Revolutionary War, for example, John Adams engaged in a spirited public debate with William Brattle about the tenure of judges. Notwithstanding their other differences, both men agreed that if a judge was appointed during good behavior, then he could be removed only (as Adams said) upon a “hearing and trial, and an opportunity to defend himself before a fuller board, knowing his accuser and accusation.”

Impeachment, by contrast, was a procedure by which someone could be criminally prosecuted in a legislature. Impeachment prosecutions were not exclusively limited to government officials, and the punishment following a successful prosecution did not consist only of removal from office; rather, an impeached person might suffer a variety of sanctions, including execution.

During the seventeenth and early eighteenth centuries, impeachment was not a procedure for determining misbehavior. In England, for example, the preferred procedure for adjudicating judicial misbehavior was the writ of scire facias. Likewise, when private parties with good behavior tenure were accused of misbehaving, those accusations were judged in the ordinary courts and not before Parliament.

Across the sea, some Americans in the late eighteenth century began to regard impeachment as a possible procedure for determining whether someone had misbehaved. Nonetheless, Americans clearly did not confuse or conflate impeachment with removal for breach of a good behavior condition. Some state constitutions expressly allowed for removal of officials with good behavior tenure in the ordinary courts, and some granted good behavior tenure even though they did not provide for impeachment at all.

The Constitution limited the scope of impeachment (by providing that the punishment for impeachment would be limited to removal from office) but it contains no hint that the Founders meant to modify the long-established meaning of good behavior tenure. To the contrary, the adoption of the Constitution was bookended by federal laws that reflected the traditional understanding. The 1787 Northwest Ordinance granted territorial judges good behavior tenure. Given that the Continental Congress was a unicameral legislature without an impeachment power, this act surely did not contemplate that impeachment would be the method of determining misbehavior. And the 1790 Crimes Act provided that a judge convicted of taking a bribe would, by virtue of the conviction, be “forever . . . disqualified to hold any office of honour, trust or profit under the United States.” In other words, conviction alone would operate to deprive the judge of office.

III. Judicial Investigations and Prosecutions

Our reading of Article III’s grant of good behavior tenure may be hard for some to swallow, especially those with muscular conceptions of judicial independence.Others, however, may embrace a more historically grounded and nuanced account of judicial independence.For example, members of Congress recently proposed an independent Inspector General for the judicial branch. Some prominent judges, including Justice Ruth Bader Ginsburg, have hinted that there is something seriously amiss with this proposal. After all, how can judges remain independent if they stand in constant fear of an Inspector General investigation?

There is nothing constitutionally suspect about government officials investigating allegations of judicial misconduct and then making reports to Congress and the executive branch. Under any reading of the Constitution, the political branches have the authority to investigate and sanction judges. The chambers of Congress can impeach, convict, and remove based on proper evidence of high crimes and misdemeanors. And whatever Congress decides, the executive may prosecute any judges whom it believes has violated the law. The proposed Inspector General would merely make it easier to prosecute and convict miscreant judges. Moreover, under our reading of good behavior, information gathered by the Inspector General also could be used to prove in court that a judge had misbehaved and had thereby violated the terms of her tenure.

But what about the cherished independence of federal judges? Too much emphasis has been laid on the independence of judges and not enough on the Constitution’s provisions that promote judicial accountability, which include the grant of life tenure subject to termination for misbehavior. Judges do enjoy a certain type of independence—they cannot be punished for the judgments they issue. But the Constitution makes clear that federal judges do not have an absolute or a boundless independence. If an Inspector General would further judicial accountability, that fact counts in favor of the Inspector General proposal.

IV. Conclusion

Congress clearly can adopt measures to help the chambers impeach and convict. But Congress can go further and adopt statutes that remove judges upon proof of judicial misbehavior. Any such procedures would have to afford an accused judge the due process rights associated with conviction for a serious offense. But a procedure meeting those demanding requirements could culminate in removal—without the need for a wholly independent impeachment procedure.

This analysis is based on the assumption that the Constitution should be construed according to its original meaning. Not everyone accepts that assumption. It may be that our political community has come to prefer that impeachment serve as the exclusive method for removing judges. We may prefer that Judge Jailbird continue to draw his salary until Congress gets around to impeaching him. But if we opt for that conclusion, we should do so deliberately and with eyes open—not on the mistaken supposition that the impeachment-only position is forced upon us by the Constitution itself.

Professor Prakash is the Herzog Research Professor of Law at the University of San Diego. Professor Smith is the Warren Distinguished Professor of Law at the University of San Diego.

Preferred citation: Saikrishna Prakash & Steven D. Smith, Removing Federal Judges Without Impeachment, 116 Yale L.J. Pocket Part 95 (2006), http://yalelawjournal.org/forum/removing-federal-judges-without-impeachment.

Removing Federal Judges Without Impeachment accompanies Saikrishna Prakash & Steven D. Smith, How To Remove a Federal Judge, 116 Yale L.J. 72 (2006).