Reply: (Mis)Understanding Good-Behavior Tenure

Abstract

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.

Keywords: good behavior, judicial independence, impeachment, holism, Redish, tenure