Tenure of Federal Judges

Article III of the U.S. Constitution states:

"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

What Does "Good Behavior" Mean for Federal Judges?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The meaning of the Good Behavior Clause has been the subject of long-standing debate. Some have argued that the phrase denotes an alternative standard of removal for federal judges beyond "high crimes and misdemeanors" that normally may give rise to the impeachment of federal officers.¹ Others have rejected this notion,2 reading the "good behavior" phrase simply to make clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism. However, while one might find some support in early twentieth-century practice for the idea that the clause constitutes an additional ground for removal of a federal judge,³ the modern view of Congress appears to be that "good behavior" does not establish an independent standard for impeachable conduct.⁴ In other words, the Good Behavior Clause simply indicates that judges are not appointed to their seats for set terms and cannot be removed at will; removing a federal judge requires impeachment and conviction for a high crime or misdemeanor.

Nevertheless, even if the Good Behavior Clause does not delineate a standard for impeachment and removal for federal judges, as a practical matter, the history of impeachments in the United States might indicate that the range of conduct meriting removal differs between judges and executive branch officials due to the distinct nature of each office. The Senate has never voted to remove the President or an executive branch official, but has done so to eight federal judges.⁵ The conduct meriting impeachment and removal for federal judges has ranged from intoxication on the bench,⁶ to abandoning the office and joining the Confederacy,⁷ to various types of corruption. Congress has also impeached and removed federal judges for perjury and income tax evasion,⁸ although it is unclear whether such behavior would necessarily be considered impeachable behavior for an executive branch official.⁹

Further, leaving aside whether the Good Behavior Clause establishes a separate standard for removal independent from high crimes and misdemeanors, historical conflicts between Congress and the judiciary may inform the outer limits of what the Good Behavior Clause entails. For instance, in 1804 Jeffersonian Republicans attempted to remove Supreme Court Chief Justice Samuel Chase, who they viewed as openly partisan and biased against their party.¹⁰ The allegations against Chief Justice Chase included that he acted in an "arbitrary, oppressive, and unjust manner at trial," misapplied the law, and expressed partisan political views to a grand jury.¹¹ The attempt failed, and Congress has never removed a federal judge for disagreement with the law's application or because of difference in political views. Based on this historical practice, the good behavior standard arguably guards against the removal of a federal judge for disagreement with the law's interpretation or political disagreements.

That said, the Good Behavior Clause and the attendant clauses expressly dealing with impeachment do not insulate federal judges from criminal prosecutions.¹² For instance, Judge Harry E. Claiborne, before being impeached and removed from office as a federal judge, challenged his indictment and prosecution as unconstitutional.¹³ Specifically, he argued that the Constitution's vesting of the impeachment power in Congress precludes the criminal prosecution of an Article III judge unless he is first impeached and removed from office.¹⁴ The U.S. Court of Appeals for the Ninth Circuit rejected this argument, concluding that the Constitution's distinction between impeachment and criminal liability was meant to ensure that no individual who had been impeached and removed could claim double jeopardy as a shield against subsequent criminal prosecution.¹⁵ Further, a criminal conviction does not "remove" an individual from office, Congress retains exclusive power to do so through the constitutional mechanism of impeachment.¹⁶ Likewise, the Ninth Circuit rejected Claiborne's argument that it violates separation of powers for the executive branch to possess authority to bring criminal prosecutions against sitting Article III judges.¹⁷ The court noted that potential defendants receive the same protections that ordinary citizens do, and criminal behavior is not part of a government official's duties.¹⁸ Further, insulating federal judges from criminal liability would elevate them above the requirements of the very law they are entrusted with adjudicating fairly.¹⁹

History of the Good Behavior Clause

Just as the phrase "high crimes and misdemeanors" for impeachments was borrowed from English practice,²⁰ so too was the term "good behavior" borrowed from English law concerning the duration of a judge's tenure.²¹ Prior to 1701, the tenure of judges in England was established by the Crown, which often reserved the right to remove them.²² In 1701 Parliament passed legislation barring the Crown from removing judges, providing that they served "Quamdiu se bene gesserint,"²³ and reserved for itself the authority to remove judges.²⁴ The standard of good behavior and insulation from removal by the Crown was mirrored in the constitutions of many American colonies²⁵ and was advanced by various proposals at the Constitutional Convention.²⁶

The Framers considered the provision that federal judges maintain their seats during good behavior an "excellent barrier" against the risk of a legislature seeking to expand its power.²⁷ Rather than serving at the pleasure of the President or Congress, the protection of judges' seats and salary for life ensured an independent judiciary that would not be unduly pressured by the political branches.²⁸ Insulating federal judges from removal was crucial because the judiciary lacks the "sword" of the executive power and the "purse" of the legislature.²⁹ Rather, the judicial power consists of the reasoning and 'judgements" of its officers.³⁰ As the federal judiciary is in some ways the least powerful branch of the government, ensuring judges' "permanency in office" was deemed essential to establishing an independent judiciary.³¹

Further, this independence armed the judiciary with the ability to defend and preserve a "limited constitution against legislative encroachments" against the rights of citizens.³² In the Federalist Papers, Alexander Hamilton argued that federal judges must "guard the constitution and the rights of individuals" against the possibility of laws that oppress political minorities.³³ Likewise, federal judges must ensure that the law is applied justly and evenly to all citizens. If judges could be removed at will or were appointed for periodical amounts of time, judges would be tempted to consider popular opinion in their rulings to the detriment of the Constitution and the rights of political minorities.³⁴

Footnotes

1. Raoul Berger, Impeachment: The Constitutional Problems 122–80 (1973) (arguing that the good behavior standard is distinct from "high crimes and misdemeanors" and Congress may remove judges whose "misbehavior" does not constitute a high crime or misdemeanor); Saikrishna Prakash, Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72, 78 (2006) ("Congress . . . may establish any number of mechanisms for determining whether a judge has forfeited her office through misbehavior. . . . Congress can pass statutes that help implement the federal government's authority to remove federal judges who have misbehaved".); see 3 Lewis Deschler, Precedents of the United States of the House of Representatives, H.R. Doc. No. 94-661, at Ch. 14 § 3.9 (1974).
2. Judith Rosenbaum et al., A Constitutional Perspective on Judicial Tenure, 61 Judicature 465, 474 (1978) (claiming that the terms were interchangeable for the Framers).
3. See Staff of H. Comm. on the Judiciary, 93d Cong., Impeachment, Selected Materials 666 (Comm. Print 1973).
4. See Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 608–13 (2017); Impeachment, Selected Materials, supra note 3, at 666; Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 17 (Comm. Print 1974); H.R. Rep. No. 105-830, at 110–18.
5. See discussion in How Impeachment Trials Work in the Senate and What Constitutes an Impeachable Offense?
6. See 12 Annals of Cong. 642 (1803); 13 Annals of Cong. 380 (1803); 13 Annals of Cong. 368 (1804).
7. 2 Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States §§ 2385–97 (1907).
8. 135 Cong. Rec. S14,633–39 (daily ed. Nov. 3, 1989) (removing Judge Walter L. Nixon for lying to a grand jury); 132 Cong. Rec. 29,870–72 (1986) (removing Judge Harry E. Claiborne for providing false statements on his income tax returns).
9. President Clinton was impeached, but not convicted, for perjury to a grand jury. In the effort to impeach President Nixon, one of the articles of impeachment rejected by the House Judiciary Committee concerned tax evasion. See Presidential Impeachment Cases.
10. 13 Annals of Cong. 1180 (1804).
11. Impeachment, Selected Materials, supra note 3, at 133–35.
12. See generally Chandler v. Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 140 (1970) (Douglas, J., dissenting) ("Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress.").
13. United States v. Claiborne, 727 F.2d 842, 849 (9th Cir. 1984). See also United States v. Hastings, 681 F.2d 706, 709–11 (11th Cir. 1982) (rejecting similar claims), stay denied, 459 U.S. 1203 (1982); United States v. Isaacs, 493 F.2d 1124, 1141–44 (7th Cir. 1974) (same), cert. denied sub nom., 417 U.S. 976 (1974).
14. Claiborne, 727 F.2d at 845–46.
15. Id. at 846.
16. Id.
17. Id. at 849.
18. Id. at 848.
19. Id. at 849.
20. For more on the historical background of the impeachment clauses, see The Senate's Power Over Impeachment Trials; Article II, Section 4: Impeachment.
21. Hon. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges the John R. Coen Lecture Series University of Colorado School of Law, 55 U. Colo. L. Rev. 1, 3 (1983). ("The phrase 'good Behaviour' was copied by the framers of our Constitution from English law.").
22. Note, Judicial Disability and the Good Behavior Clause, 85 Yale L.J. 706, 720 (1976).
23. The Latin phrase is sometimes translated as "so long as they conduct themselves well," Ginsburg, supra note 21, at 3 n.10, or during good behavior. See Judicial Disability and the Good Behavior Clause, supra note 22, at 709.
24. Act of Settlement, 12 & 13 Will. 3, ch. 2, § 3 (1700).
25. See, e. g., 2 Benjamin P. Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1910 (2d ed. 1878).
26. 1 Records of the Federal Convention of 1787 21 (Max Farrand ed., 1966) (Virginia Plan); id. at 244 (New Jersey Plan); 3 id. at 600 (draft attributed to Charles Pinckney); id. at 621, 625 (Alexander Hamilton).
27. See The Federalist No. 78 (Alexander Hamilton).
28. Id.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.