CONSTITUTIONAL PERSPECTIVE ON JUDICIAL TENURE

• NCJ Number: 62033
• Journal: Judicature Volume: 61 Issue: 10 Dated: (MAY 1978) Pages: 465-475
• Author(s): J ROSENBAUM; D L LEE
• Date Published: 1978
• Length: 11 pages
• Corporate Author: American Judicature Soc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

IMPEACHMENT PROVISIONS OF THE CONSTITUTION TO REMOVE FEDERAL JUDGES FROM OFFICE ARE REVIEWED, ALONG WITH OTHER REMEDIES TO THE PROBLEM OF JUDICIAL DISCIPLINE AND ACCOUNTABILITY.

Abstract

SOME PERSONS CONTEND THAT MEMBERS OF EXECUTIVE AND LEGISLATIVE BRANCHES OF GOVERNMENT CAN BE REMOVED WITHOUT BEING IMPEACHED AND THAT PROVISIONS FOR REMOVAL WITHOUT IMPEACHMENT ARE EXPRESSED OR IMPLIED IN THE CONSTITUTION. THOSE WHO FAVOR ALTERNATIVES TO IMPEACHMENT OFTEN ARGUE THAT A JUDGE CAN VIOLATE GOOD BEHAVIOR STANDARDS WITHOUT COMMITTING AN IMPEACHABLE OFFENSE; IF IMPEACHMENT IS THE ONLY REMEDY, A JUDGE CANNOT BE PUNISHED FOR LAPSES IN GOOD BEHAVIOR THAT DO NOT CONSTITUTE TREASON, BRIBERY, OR OTHER HIGH CRIMES AND MISDEMEANORS. THE SEPARATION OF POWERS DOCTRINE IS OCCASIONALLY USED TO INTIMATE THAT IMPEACHMENT IS A GRANT OF AUTHORITY TO CONGRESS AND NOT A PROHIBITION ON THE JUDICIARY FROM DISCIPLINING ITS MEMBERS. UNLIKE CONGRESS, HOWEVER, THE JUDICIARY HAS NO EXPLICIT CONSTITUTIONAL POWER TO POLICE ITS MEMBERS. THE MAJOR QUESTION THEN IS WHETHER THE CONSTITUTION INTENDED FOR CONGRESS TO REMOVE JUDGES ON THE BASIS OF MISCONDUCT. THE IDEA OF TENURE DURING GOOD BEHAVIOR DEPENDS ON FOUR QUESTIONABLE PREMISES: (1) EVERY CLAUSE IN THE CONSTITUTION CAN BE ENFORCED; (2) CONGRESS HAS, IN FACT, IMPEACHED JUDGES FOR MISBEHAVIOR ALONE; (3) THE ENFORCEMENT OF GOOD BEHAVIOR TENURE IGNORES THE COMMON LAW MEANING OF THAT TYPE OF TENURE; AND (4) PROPONENTS OF ALTERNATIVES TO IMPEACHMENT SOMETIMES POINT TO INSANITY, SENILITY, OR OTHER DISABILITY AS BREACHES OF GOOD BEHAVIOR. DRAFTERS OF A PROPOSED JUDICIAL TENURE ACT EXCLUDE THE IDEA OF JUDICIAL SUSPENSION WITHOUT PAY AS A POSSIBLE PENALTY, DEFINE MISCONDUCT IN TERMS ALREADY USED BY STATE SUPREME COURTS IN CASES INVOLVING STATE JUDGES, AND RECOGNIZE SERIOUS CONSTITUTIONAL QUESTIONS THAT MAY ARISE IF SUPREME COURT JUSTICES ARE REMOVED THROUGH A COURT CREATED BY CONGRESS. VIEWS OF FEDERAL JUDGES ON IMPEACHMENT AND JUDICIAL DISCIPLINE ISSUES ARE PRESENTED, AND CASE LAW IS CITED. (DEP)