JUDICIAL IMPEACHMENT

The Constitution is remarkably Delphic on the subject of judicial removal. Article III provides that judges shall hold office during "good Behavior," but leaves that term undefined and fails to indicate who is authorized to define it. Article II provides that the President, Vice-President, and "all civil officers of the United States" shall be subject to impeachment and removal, but is silent on whether judges, for this purpose, are to be considered "civil officers." Nonetheless, it has been consistent practice to treat federal judges as removable by impeachment, and to equate "good Behavior," for all practical purposes, with such behavior as has not yet led to such removal.

With regard to federal judges, there have been fifty-eight documented impeachment investigations by the U.S. house of representatives, eleven impeachment trials conducted by the U.S. senate, and seven impeachment convictions—three during the 1980s—two of which prompted not only removal, but also disqualification from holding further federal office. A Senate conviction in a case of impeachment is final; in nixon v. united states (1993), the Court held that the political question doctrine precludes judicial review. The constitutional ambiguities concerning judicial removal have prompted three recurring legal debates: May Congress or the executive discipline judges through any unilateral mechanism other than impeachment? Are sitting federal judges subject to criminal prosecution? And, may the federal judiciary itself discipline its members?

Both constitutional history and separation of powers theory support a negative answer to the first question. The susceptibility of judges to executive removal was decried in the declaration of independence, and the constitutional convention debated and rejected the other political removal mechanism short of impeachment known to the former colonists—removal upon "legislative address" to the executive. Both alexander hamilton and Brutus described impeachment as the Constitution's sole judicial removal mechanism, although one applauded and one deplored the resulting degree of judicial independence. Given that the Supreme Court, in Bowsher v. Synar (1986), held that Congress may participate in executive removals only through impeachment, it seems implausible that Congress has greater authority over judges.

Whether sitting judges may legitimately be prosecuted is less certain. Although no such prosecution had been brought prior to 1980, the U.S. Department of Justice launched five in the ensuing decade, all successful but none reaching the Supreme Court. Perhaps the strongest argument against such authority is that the vulnerability of sitting judges to criminal prosecution threatens judicial independence, and especially judicial evenhandedness in cases involving the government as party. Those lower courts that have thus far addressed the issue, however, have concluded that the importance of judicial integrity outweighs the potential harm.

In 1980, the Judicial Councils Reform and Judicial Conduct and Disability Act authorized a discipline process within the federal judiciary that may result in a variety of sanctions short of removal, including private or public reprimand or censure, the temporary nonassignment of cases, or a request for voluntary retirement. Congress avoided the most obvious separation of powers objections by stopping short of authorizing removals and by excluding Supreme Court Justices from the system's purview. In 1993, a commission charged by Congress to investigate the discipline and removal of judges concluded that the act did not represent an unconstitutional intrusion into judicial independence—an issue the Supreme Court has yet to address.

Peter M. Shane
(2000)

Bibliography

Gerhardt, Michael J. 1996 The Federal Impeachment Process: A Constitutional and Historical Analysis. Princeton, N.J.: Princeton University Press.

National Commission on Judicial Discipline and Removal 1993 Research Papers of the National Commission on JudicialDiscipline and Removal, 2 vols. Washington, D.C.: U.S. Government Printing Office.

Simon, Maria 1994 Note: Bribery And Other Not So "Good Behavior": Criminal Prosecution as a Supplement to Impeachment of Federal Judges. Columbia Law Review 94:1617–1673.

Symposium 1993 Disciplining the Federal Judiciary. University of Pennsylvania Law Review 142:1–430.