the yale law journal
It is a virtually unquestioned assumption among constitutional law cognoscenti that impeachment is the only means of removing a federal judge.But why? The constitutional text does not expressly say as much. The text doesnot even connect the provision for judicial tenure “during good Behaviour”
In fact, these provisions are found in entirely different Articles,suggesting that they stand independent of each other. Why, then, do so many regard it as axiomatic that impeachment is the exclusive method of removing a federal judge?Perhaps the standard assumption derives from something deeply embedded in the constitutional text or structure. Though the text does notexpressly say that judges may be removed only through impeachment, maybe a more careful reading reveals a hidden connection. For example, given that theoriginal Constitution explicitly mentions removal only in the impeachmentprovisions,
scholars might infer that impeachment must be the exclusivemeans of removing judges.
Others might suppose that tenure “during goodBehaviour” is actually synonymous with “removable only via impeachment.”For instance, Professor Martin Redish has argued that “the good-behavior language must be construed as nothing more than a cross-reference to theavailability of impeachment.”
Finally, at least one scholar has suggested thatbecause only judges have good-behavior tenure, the Constitution might be bestread as making it
difficult to impeach federal judges than other officers.
Another justification for the standard assumption might be history. Neither impeachment nor good-behavior tenure originated with the Constitution. If
. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall holdtheir Offices during good Behaviour . . . .”). For consistency’s sake, we will use “behavior”rather than “behaviour” in the text, but preserve the latter spelling when found inquotations.
. art. I, § 2, cl. 5;
art. I, § 3, cls. 6-7;
art. II, § 4.
. art. I, § 3, cl. 7 (declaring that judgment cannot extend beyond removal anddisqualification);
art. II, § 4 (stating that officers convicted shall be removed).
Sam J. Ervin, Jr.,
Separation of Powers: Judicial Independence
, 35 L
.108, 117 (1970) (arguing that impeachment was intended to be the exclusive means of removal because it is the only mechanism mentioned); Merrill E. Otis,
A Proposed Tribunal: Is It Constitutional?
, 7 U.
. 3, 38-41 (1938) (same).
Martin H. Redish,
Judicial Discipline, Judicial Independence, and the Constitution: A Textualand Structural Analysis
, 72 S.
673, 692 (1999).
Judicial Independence: Playing Politics with the Constitution
, 14 G
. 795, 798 (1998) (suggesting that the grant of good-behavior tenure means that thereare good textualist reasons to limit impeachment to extreme cases of judicial misconduct).