Against Judicial Impeachment

Over at American Greatness, Law and Liberty contributing editor Mark Pulliam muses on judicial impeachment as a possible solution to judicial overreach. He thinks it too coarse a tool, and one as likely to bite conservatives as to help them. Perhaps even more likely to bite conservatives. Much like my view on eliminating the filibuster, I suspect any partisan advantage in such rash action pretty much washes out over the long run, even if variance at the margins increases. Whether one supports or opposes it usually depends on whose ox is getting gored.

I am interested in a more abstract question, however: in the U.S. Constitution, is impeachment the only means by which judges can be removed from office?

To be sure, article II, section 4 of the Constitution provides that “The 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.”

Even assuming that judges count as “civil officers,” article III, section 1 of the Constitution would seem to set a lower threshold for removing judges from office than for removing the President. Article III, section 1 provides that “Judges . . . shall hold their Offices during good Behaviour.” The implication is that judges can lose their offices for “bad” behavior, or even for just neutral behavior (which while not bad, is also not good; and the Constitution requires the latter to continue to hold office). So while judges can be impeached for treason, bribery, or other high crimes and misdemeanors, the Constitution also seems to allow that they might lose their office for behavior not rising to those levels of seriousness.

It makes sense that the Constitution would allow judges to be removed from office for behavior less serious than that justifying impeachment. A first-term President is up for reelection in four years; a second term President can hold office for at most four years. Their behavior can be judged by voters, or is term limited irrespectively. National-level judges, however, have no natural ending point to their appointments, other than death or voluntary resignation. So it makes sense that judges could be removed from office for behavior not meeting the threshold applied for impeachment of elected officials.

While the category, “high misdemeanors,” holds some flexibility, and might include wrongs such as unconstitutional decisions (however defined), it still appears to require a higher level of gravitas than merely not good behavior.

But if not impeachment, then what?

By my count, ten states currently permit removing judges by “address.” Eleven, if we add the state of Washington which allows removal of a judge by joint resolution of both legislative chambers. These states allow the removal of a state judge, by the governor, on the “address” of both chambers in the state legislature. Seven of these states permit removal by address only upon a vote of two-thirds of both legislative chambers. The other three states apparently permit removal by a majority vote of each chamber. Washington requires three-fourths majorities in both chambers.

Most states seem to permit removal by address for just about any reason the legislature deems legitimate. It still does not occur regularly. Some states with removal by address have enacted legislation requiring that reasons be given for removal by address. New Hampshire’s constitution requires that a judge be removed by address only for “reasonable cause.”

Louis Frothingham, in his study of removal by address in Massachusetts in a 1914 issue of the American Political Science Review, reported no effective constraint on the state’s legislature using the power. “[A]ny cause may be alleged (not alone disability) to justify removal by address . . .”

The U.S. Constitution’s requirement that judges hold their office only during good behavior then seems to be a standard for losing one’s office that falls between an impeachable offense and removal for any reason the legislature might want.

It would presumably take legislation for Congress to attempt to act on the theory that it could remove judges for behavior that does not reach the threshold of “treason, bribery, or other high crimes and misdemeanors,” but also does not reach the threshold of “good behavior.” Mark Pulliam’s arguments against judicial discipline on the part of legislatures might apply even more so when legislatures have wider scope for action than impeachment. At the same time, there seem precious few political checks on the judiciary, despite the very political role judges today often play in the American political system.