How to Remove a Federal Judge
University of Virginia School of Law
Steven Douglas Smith
University of San Diego School of Law
November 15, 2011
Yale Law Journal, Vol. 116, 2006
San Diego Legal Studies Paper No. 07-41
Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's 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.
Number of Pages in PDF File: 66
Keywords: good behavior, impeachment, Act of Settlement, judges, Congress
JEL Classification: K00, K1
Date posted: April 8, 2006 ; Last revised: November 16, 2011
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