Saikrishna Prakash

How to Remove a Federal Judge

Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitutions grant of good behavior tenure is an implicit reference to impeachment. This article challenges these widely shared assumptions. Using evidence from England, the colonies, and the revolutionary state constitutions, the article demonstrates that at the time of the founding good behavior tenure and impeachment had only the most tenuous of relationships. Good behavior, when discussed in the context of the government, consisted of a tenure in office whereby the officer would forfeit her office upon a judicial finding of misbehavior. 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. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good behavior tenure had forfeited her office by reason of misbehavior. Most state constitutions did not equate good behavior tenure with impeachment either. Indeed, some distinguished them explicitly. Compared to prior scholarship on good behavior tenure, this article provides a more complete, and therefore more credible, understanding of good behavior tenure. In particular, we demonstrate several propositions for the first time: 1) that the English understanding of good behavior tenure had migrated to her 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; 3) that the English writ of scire facias was not the only mechanism for ousting those with good behavior tenure; and 4) that the state constitutions generally did not regard impeachment as a means of judging good behavior. Taken together, these propositions devastate the conventional conflation of good behavior tenure with impeachment.

Reply: (Mis)Understanding Good-Behavior Tenure

In How To Remove a Federal Judge, we argued that at the Founding, “good behavior” 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). 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 behavior” meant and also on the more “holistic” level of the overall constitutional design.We are honored that Redish has carefully scrutinized our article — 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 behavior” meant at the Founding.