How To Remove a Federal Judge
Will Baude at 04:40 PM
Judges in the federal courts hold office, the Constitution tells us, "during good Behaviour". The conventional wisdom is that this means that they can be removed from the bench only if they are impeached for high crimes and misdemeanors. This turns out to be probably wrong. Sai Prakash and Steve Smith argue in the first issue of Volume 116 of the Yale Law Journal that judges can in fact be removed any time that they misbehave, that misbehavior can be defined by statute and adjudicated in ordinary trials in the federal courts, and that impeachment is not the only way to remove a mishebaving judge.
Their Article, How To Remove a Federal Judge, is available now on the law journal's website. So is Martin Redish's response, arguing that Prakash and Smith fail to heed the deep structure of the Constitution. Prakash and Smith then reply to Redish.
I assume most readers will be skeptical of Prakash and Smith's point at first-- a sensible instinct when somebody challenges 200 years of received wisdom. But I think their argument is fairly persuasive. Once you understand that "good Behavour" was a welll-understood term of art when the Constitution was written, and that good-behavior tenure could be (and was) granted not only to government offficers but to private employees, or even to land grants, it seems eminently logical to think that there must be some means of adjudicating misbehavor other than impeachment. And if impeachment isn't the exclusive means of judging misbehavior for file clerks, pastors, or professors, why should it be the exclusive means of judging misbeavior for federal judges? After all, almost nobody thinks impeachment is the exclusive means of removing executive officers, but other than the good-behaviour clause, nothing in the Constitution suggests that their tenures should be treated any differently.
Anyway, it's worth reading the whole thing. [Full Disclosure: I worked to edit the piece after it was accepted at the Yale Law Journal.]
crescatsententia.org
The article at Yale Law Journal
yalelawjournal.org |
