Impeaching Federal Judges

The Constitution says this: “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.”

It also says this: “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.”

Most people think (and history strongly suggests) that the Impeachment Clause provides the exclusive means to remove federal judges, which is to say that they may be impeached by the House, and convicted by the Senate, only for “Treason, Bribery, or other high Crimes and Misdemeanors.”

That phrase is not self-defining, but it is generally taken to refer to egregious abuse or misuse of public authority.

Some crimes (consider jaywalking) are not a legitimate basis for impeachment. The reason is that some crimes do not count as high crimes or misdemeanors.

Some actions that are not crimes (consider always ruling against people whose last name begins with “S”) could be a legitimate basis for impeachment. The reason is that some actions that are not crimes count as high crimes or misdemeanors. Here’s a book on the topic: https://www.amazon.com/Impeachment-Citizens-Cass-R-Sunstein/dp/0143135171/ref=tmm_pap_swatch_0

Impeaching judges for something other than high crimes and misdemeanors, and in particular for rulings that Congress and the president dislike or even despise, would be plainly unconstitutional. The Constitution sets sharp limits on the permissible grounds for impeachment.

But let’s fuss a little. Some people think that the Good Behavior Clause provides another and broader ground to remove judges, going beyond high crimes and misdemeanors. (See https://www.yalelawjournal.org/pdf/438_q54sjnwz.pdf) That view raises many questions. Throughout American history, impeachment for high crimes and misdemeanors has been the only ground for removing federal judges. The Good Behavior Clause has not been taken to be an independent ground for removal.

In any case, it seems clear that even if the Good Behavior Clause does provide a separate and somewhat broader ground for removal than the Impeachment Clause, there is not massive space between them. And indeed, the number of impeachments of federal judges in U.S. history is revealingly small. (Only fifteen judges have been impeached, and only eight have been convicted.)

The Good Behavior Clause is designed to guarantee judicial independence, not to eliminate it. In fact it is central to the system of separation of powers.

Here’s Alexander Hamilton:

“The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”