On Judicial Tenure

On April 24, I had the pleasure of arguing before the United States Court of Appeals for the District of Columbia Circuit in Newman v. Moore.  During the argument, the panel of judges inquired as to what is the appropriate standard for removing judges from office, and whether that standard is different from the standard used in impeachment.  After all, the Constitution speaks of judges holding office “during good Behaviour,” but reserves impeachments for cases of “Treason, Bribery, or other high Crimes and Misdemeanors.”  Thus, the question was whether one can fail to meet the “good Behaviour” standard while still not being guilty of “high Crimes and Misdemeanors.”  I must admit that this is an interesting and novel question, and one that I have previously not thought of.  On reflection, however, I am convinced that there is no daylight between the two standards.  There are several reasons for this conclusion.

First, it is not clear whether the “good Behaviour” Clause establishes a separate standard for continuing to hold office, or whether it used a term of art, well-known to the Framers, to indicate that judges should continue in office for life, subject only to death, resignation, or impeachment.  Scholars have argued over the meaning of this clause for quite some time.  At the same time, the Supreme Court has clearly come down in favor of the former interpretation, holding in Northern Pipeline Construction Company v. Marathon Pipe Line Company that “[t]he ‘good Behaviour’ Clause guarantees that Art. III judges shall enjoy life tenure, subject only to removal by impeachment.”  This view is also supported by Federalist 78 which equates “good behavior” with “permanency in office.”  And in Federalist 79, Alexander Hamilton wrote that judges “are liable to be impeached … and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.”  Thus, it seems that Framers understood that the “good Behaviour” clause is a term of art defining the duration of office, while impeachment was a mechanism to cut that duration short should occasion call for it.

The text of the Constitution itself points in the same direction.  The Impeachment Clause states that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  There is no doubt that federal judges are “civil Officers of the United States,” and so are liable to impeachment were the House to conclude that they committed “high Crimes [or] Misdemeanors.”  However, in addition to impeachment, the Constitution specifically provides for mechanism of removal for all government officials, save for judges.  The most obvious “removal” mechanisms for the President, Vice President, and members of Congress are regular elections, where the public gets to opine on, and approve (or disapprove) of the work these individuals are doing.  Legislators can also be expelled by the vote of their peers, and the ability to remove Executive Branch officials is an implied power of the Presidency.  But as Hamilton points out, there are no provisions other than the Impeachment Clause that authorize the removal of Article III judges.  It thus follows that judges can be removed only for “high Crimes [or] Misdemeanors.”  Thus, even if “good Behaviour” clause creates a standard rather than merely signifying duration of office, the standard must necessarily be co-extensive with the standard established by the Impeachment Clause.

Finally, the history of the Republic confirms that impeachment (under the Impeachment Clause’s standards) is the sole mechanism for a judge to lose his judicial office.  The very first judge to have been impeached was Judge John Pickering who, after being appointed to the bench, began to suffer from serious and progressive mental illness.  As a result of his illness, he would often not even hold court.  Indeed, he was absent from his job for years at a time.  Not doing one’s job and letting cases languish is certainly not “good behavior.”  (The questions from the D.C. Circuit’s judges also suggested that perhaps mental or physical decrepitude fails the “good behavior” standard).  But Judge Pickering’s illness did not serve as the basis for his impeachment, nor was it used to in any way remove him from office outside of his impeachment process.  Rather, Judge Pickering was impeached for “having made unlawful rulings and being of bad moral character due to intoxication while on the bench.”  Thus, while being of unsound mind and failing to show up for work is certainly not “good behavior,” no one thought that such “bad behavior” could lead to the loss of judicial office absent impeachment proceedings under the constitutional standards for such proceedings.  Subsequent history of judicial misbehavior has only confirmed this understanding.  In the last 250 years, we have (unfortunately) had judges who engaged in dueling, were mentally decrepit, engaged in sexual harassment, failed to do any work, and otherwise failed to be on “good behavior.”  Yet none of these judges were ever deprived of their judicial office except by the constitutionally prescribed impeachment process.

The text of the Constitution, the Framers’ understanding, and the practice over the last 250 years confirms that the only standard to remove an Article III judge from office is the standard listed in the impeachment clause.  The “good Behaviour” clause does not set a lower bar on such removals.

May 9, 2025