Good Behavior Clause
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour....
The Framers firmly believed that republican liberty could be secured only under the rule of law, and that the rule of law could not be guaranteed without an independent judiciary. The Good Behavior Clause of Article III anchors judicial independence by protecting judges from being removed at the whim of the other branches.
Guaranteed life-tenure for judges had become the rule in England after the Act of Settlement in 1701, though it did not come fully into effect until 1760. Prior to that time, many (including the crown) regarded the “king’s courts” as attached to the executive branch. But as William Blackstone summarized the law in his Commentaries on the Laws of England (1765–1769), “In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty.”
It was different in the colonies. Judges did not have same independence from the crown as they were coming to have in England, leading to the complaint in the Declaration of Independence, “He has made Judges dependent on his Will alone, for the tenure of their offices. . . .” John Adams, wielding great influence during the Second Continental Congress, had pressed for judicial independence. In his Thoughts on Government (April 1776), he urged that judges “should hold estates for life in their offices; or, in other words, their commissions should be during good behavior.”
After independence, the “good behavior” standard appeared in some state constitutions, and in Philadelphia, the Framers approved the phrase with no comment. During ratification, Hamilton defended the clause in The Federalist No. 78, stating:
In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
The question that arises is whether “good behavior” is simply a code phrase for life-tenure or whether it also establishes a standard for removal of judges different from “high crimes and misdemeanors” in the Standards for Impeachment Clause (Article II, Section 4). In his Thoughts on Government, Adams had suggested that only “misbehavior” should be the cause for impeachment.
Under English law, there remained two methods of removing life-tenured judges, one by joint action of the executive and legislature, and one by the judiciary. The Act of Settlement provided a removal procedure through a formal request by the crown to both houses of Parliament for one who, in the words of Blackstone, had “breach[ed] . . . good behavior.” Addition-ally, a judge’s misbehavior could still lead to his removal from the bench by means of a writ of scire facias issued by a court of equity by which a patent, charter, or land grant—or in the case of judges, an appointment—could be annulled for “misbehavior.” Prior to independence, some states had similar procedures for the removal of judges.
At the Constitutional Convention, the Framers rejected the first English method of removal. John Dickinson moved to add, after the words “good Behaviour,” the words “Provided that they may be removed by the Executive on the application by the Senate and House of Representatives.” There ensued a vigorous debate, Gouverneur Morris arguing that it would be “a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be remove-able without a trial.” The Dickenson proposal lost by a vote of seven to one, but no mechanism for “trial” was added to the Good Behavior Clause. Instead, two weeks later, the convention settled on the “high crimes and misdemeanors” language for removal of the president, and then, by separate motion, extended the process for impeachment to “all civil officers of the United States,” presumably including judges.
Impeachment is not mentioned in Article III, dealing with the judiciary, though it is in Article I, setting the powers of Congress, and in Article II, dealing with the executive. Nonetheless textually, impeachment is the only method mentioned in the Constitution for the removal of executive officers and of judges.
Hamilton pronounced in The Federalist No. 79 that impeachment was the only method of removing a judge and that any other cause would “be liable to abuse” and would “give scope to personal and party attachments and enmities.” Hamilton did opine that insanity would be a “virtual disqualification,” though he did not speculate on the method by which a judge could be removed for mental incapacity. He made no reference to the common law writ of scire facias.
Thomas Jefferson, perhaps from frustration at not being able to remove Federalist judges, pronounced the “high crimes and misdemeanors” standard a “bungling way of removing Judges . . . an impracticable thing—a mere scarecrow.” But Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833), agreed with Hamilton. “[I]nstances of absolute imbecility would be too rare,” he wrote, “to justify the introduction of so dangerous a provision” of removal other than impeachment.
Except in one instance, Thomas Jefferson’s attempt to attack the federal judiciary through impeachment failed, but he was able to remove the whole cohort of federal circuit judges sim-ply by having Congress legislate their courts out of existence in the Judiciary Act of 1802, an act upheld by the Supreme Court in Stuart v. Laird (1803).
Over the history of the republic, judges have been impeached and removed for a variety of misdeeds, not all of them actual crimes. There have been fifteen cases of judicial impeachment tried before the Senate. Among these fifteen officials were one associate justice of the Supreme Court, one commerce court judge, and thirteen district judges. Their charges ranged from “mental instability and drunkenness on the bench” to “improper business relationship with litigants,” and from “favoritism in the appointment of bankruptcy receivers” to “sexual assault.”
The first judge removed was John Pickering of the federal district court in New Hampshire, whose trial in 1804 was a precursor to Jefferson’s campaign to remove Samuel Chase from the Supreme Court. Pickering was charged with being biased in some of his decisions and for “being a man of loose morals and intemperate habits,” who appeared in court “in a total state of intoxication” and “in a most profane and indecent manner, invoke[d] the name of the Supreme Being,” said actions amounting to “high misdemeanors.” The Senate heard evidence that showed convincingly that Pickering suffered from a debilitating insanity that voided any imputation of criminal intent. It was politically necessary, however, for the Democrats in Congress to convict Pickering so that they could go on to the impeachment of Justice Chase. To avoid the problem of Pickering’s lack of criminal liability, the Democrats agreed to have the question changed from whether Pickering was guilty of “high crimes and misdemeanors” to whether he was “guilty as charged.” By a vote of nineteen to seven, Pickering was convicted and removed from office.
The Pickering case raised the continuing problem of whether impeachment is the only mechanism for removing a judge who has not actually committed a crime. In the impeachment trial of President William Clinton, his counsel affirmed that judges were subject to impeachment, but he argued that the “good Behavior” clause sets a lower standard for the impeachment of judges than does “high crimes and misdemeanors” for a president. A number of scholars, on the other hand, have asserted that Congress, through the Necessary and Proper Clause, can provide the judiciary with a mechanism, analogous to the old common law writ of scire facias, to police them-selves and remove a judge incapable of carrying out his duties, without having to have recourse to impeachment.
Throughout the debate, Congress has insisted that (1) the Good Behavior Clause means merely no fixed term (i.e., for life), (2) only Congress can remove federal judges using impeachment, and (3) “high crimes and misdemeanors” does not require the offensive conduct to be a crime. In 1993, the congressionally authorized National Commission on Judicial Discipline and Removal declared that the Good Behavior Clause defines life tenure and is not a separate basis for what constitutes an impeachable offense for judges.
There have been instances where the judiciary itself sought the removal of a judge from office. In 1989, for example, the Judicial Conference of the United States (composed of the senior judges of the federal circuits and the chief justice of the Supreme Court) recommended to the Speaker of the House of Representatives that Judge Alcee Hastings be impeached, even though Hastings had been acquit-ted of charges of conspiracy to solicit and accept a bribe. The Judicial Conference deferred to the power of Congress to impeach and convict. The House went forward to impeach Hastings and the Senate convicted him.
In 1980, Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act, empowering Judicial Councils (disciplinary bodies of the circuit courts) to suspend case assignments from judges who were mentally or physically unable to discharge their duties or who had engaged in inappropriate conduct. But, Congress declared, “in no circumstances may the council order removal from office of any judge appointed to hold office during good behavior.”
In Chandler v. Judicial Council of the Tenth Circuit of the United States (1970), the Supreme Court considered the constitutionality of a judicial council’s decision to bar a federal judge, who had been a civil and criminal defendant in a number of proceedings, from hearing cases to which he was assigned, and to prevent further assignment of cases to his docket. In effect, the judicial council had removed the judge from performing his office. The judge asserted that the judicial council had usurped the power of the House of Representatives and of the Senate to impeach and to convict. The Court dismissed the suit on jurisdictional grounds. Justice John M. Harlan, concur-ring, opined that the Court did have jurisdiction, but on reaching the merits, found that the circuit courts possessed disciplinary authority to prevent a judge from hearing cases. Justices William Douglas and Hugo L. Black vigorously dissented asserting that the judicial council had gone too far and that the only constitutionally permissible method of a removing a judge from his duties was through impeachment.
Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L.J. 1475 (1970)
William S. Carpenter, Repeal of the Judiciary Act of 1801, 9 AM. POL. SCI. REV. 519 (1915)
History of the Federal Judiciary: Impeachments of Federal Judges, Federal Judicial Center, at http://www.fjc.gov/history/home.nsf/page/ judges_impeachments.html (accessed January 7, 2014)
Saikrishna Prakash and Steven D. Smith, How to Remove a Federal Judge, 116 YALE L.J. 72 (2006)
Martin H. Redish, Response: Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism, 116 YALE L.J. 139 (2006)
G. W. C. Ross, “Good Behavior” of Federal Judges, 12 U. KAN. CITY L. REV. 119 (1944)
Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 KY. L.J. 707 (1988)
Jeff Sessions & Andrew Sigler, Judicial Independence: Did the Clinton Impeachment Trial Erode the Principle?, 29 CUMB. L. REV. 489 (1999)
Burke Shartel, Federal Judges—Appointment, Super-vision, and Removal—Some Possibilities Under the Constitution, 28 Mich. L. Rev. 870 (1930)
Jonathan Turley, The Executive Function Theory, The Hamilton Affair, and Other Constitutional Mythologies, 77 N.C. L. Rev. 1791 (1999)
Martha Andes Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135 (1969)
Stuart v. Laird, 5 U.S. 299 (1803)
Chandler v. Judicial Council of the Tenth Circuit of the United States, 398 U.S. 74 (1970)
Nixon v. United States, 506 U.S. 224 (1993)