HOW TO REMOVE A FEDERAL JUDGE

Saikrishna Prakash and Stephen D. Smith, "How to remove a federal judge", Yale Law Journal, 116:70, 2006.

abstract. Most everyone assumes that impeachment is the only means of removing
federal judges and that the Constitution’s grant of good-behavior tenure is an implicit reference
to impeachment. This Article challenges that conventional wisdom. Using evidence from
England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at
the Founding, good-behavior tenure and impeachment had only the most tenuous of
relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior.
There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with
misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many
might suppose, judges were not the only ones who could be granted good-behavior tenure.
Anything that might be held—land, licenses, employment, etc.—could be granted during good
behavior, and private parties could grant good-behavior tenure to other private individuals.
Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that
could lead to an array of criminal sanctions. In England and in the colonies, impeachment was
never seen as a means of judging whether someone with good-behavior tenure had forfeited her
tenure by reason of misbehavior. Whether a landholder, employee, or government officer with
good-behavior tenure had misbehaved would be determined in the ordinary courts of law.
Moreover, the vast majority of state constitutions did not equate good-behavior tenure with
impeachment either. To the contrary, many distinguished them explicitly. Taken together, these
propositions devastate the conventional conflation of good-behavior tenure with impeachment.
More importantly, they indicate that the original Constitution did not render impeachment the
only possible means of removing federal judges with good-behavior tenure. Given the long
tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and
proper legislation permitting the removal of federal judges upon a finding of misbehavior in the
ordinary courts of law.

authors. Saikrishna Prakash is Herzog Research Professor of Law, University of San
Diego. Steven D. Smith is Warren Distinguished Professor of Law, University of San Diego.

-- Jon
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