Judges

Persons Subject to Impeachment

During the debate in the First Congress on the “removal” controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the Government from his post,759 but Madison and others contended that this position was destructive of sound governmental practice,760 and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”761 While the language of section 4 covers any “civil officer” in the executive branch,762 and covers judges as well,763 it excludes military officers,764 and the precedent was early established that it does not apply to members of Congress.765

Judges.—Article III, § 1, specifically provides judges with “good behavior” tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior, and it has been assumed that judges are made subject to the impeachment power through being labeled “civil officers.”766 The records in the Convention make this a plausible though not necessary interpretation.767 And, in fact, eleven of the fifteen impeachments reaching trial in the Senate have been directed at federal judges, and all seven of those convicted in impeachment trials have been judges.768 So settled apparently is this interpretation that the major arguments, scholarly and political, have concerned the question of whether judges, as well as others, are subject to impeachment for conduct that does not constitute an indictable offense, and the question of whether impeachment is the exclusive removal device for judges.769

759 1 ANNALS OF CONG. 457, 473, 536 (1789).

760 Id. at 375, 480, 496-97, 562.

761 Id. at 372.

762 The term “civil officers of the United States” is not defined in the Constitution, although there may be a parallel with “officers of the United States” under the Appointments Clause, Art. II, § 2, cl. 2, and it may be assumed that not all executive branch employees are “officers.” For precedents relating to the definition, see 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 1785, 2022, 2486, 2493, and 2515 (1907). See also Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 KY. L. REV. 707, 715-18 (1988).

763 See the following section on Judges.

764 3 W. Willoughby, supra at 1448.

765 This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2294-2318 (1907); F. WHARTON, STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 200-321 (1849); BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE CONSTITUTIONS FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT (1998).

766 See NATIONAL COMMN ON JUDICIAL DISCIPLINE & REMOVAL, REPORT OF THE NATIONAL COMMN ON JUDICIAL DISCIPLINE & REMOVAL 9-11 (1993). The Commission was charged by Congress with investigating and studying problems and issues relating to discipline and removal of federal judges, to evaluate the advisability of developing alternatives to impeachment, and to report to the three Government Branches. Pub. L. 101-650, 104 Stat. 5124. The report and the research papers produced for it contain a wealth of information on the subject.

767 For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, supra at 22, 244, 223-24, 231; 2 id. at 186. On August 27, it was successfully moved that the provision in the draft of the Committee on Detail giving the Supreme Court jurisdiction of trials of impeachment be postponed, id. at 430, 431, which was one of the issues committed to the Committee of Eleven. Id. at 481. That Committee reported the provision giving the Senate power to try all impeachments, id. at 497, which the Convention thereafter approved. Id. at 551. It may be assumed that so long as trial was in the Supreme Court, the Framers did not intend that the Justices, at least, were to be subject to the process.

The Committee of Five on August 20 was directed to report “a mode for trying the supreme Judges in cases of impeachment,” id. at 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the House. Id. at 367. Consideration of this report was postponed. On August 27, it was proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id. at 428-29. The matter was not resolved by the report of the Committee on Style, which left in the “good behavior” tenure but contained nothing about removal. Id. at 575. Therefore, unless judges were included in the term “civil officers,” which had been added without comment on September 8 to the impeachment clause, id. at 552, they were not made removable.

768 The following judges faced impeachment trials in the Senate: John Pickering, District Judge, 1803 (convicted), 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2319-2341 (1907); Justice Samuel Chase, 1804 (acquitted), id. at §§ 2342-2363; James H. Peck, District Judge, 1830 (acquitted), id. at 2364-2384; West H. Humphreys, District Judge, 1862 (convicted), id. at §§ 2385-2397; Charles Swayne, District Judge, 1904 (acquitted), id. at §§ 2469-2485; Robert W. Archbald, Judge of Commerce Court, 1912 (convicted), 6 CANNONS PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 498-512 (1936); Harold Louderback, District Judge, 1932 (acquitted), id. at §§ 513-524; Halsted L. Ritter, District Judge, 1936 (convicted), Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d Sess. (1936); Harry Claiborne, District Judge, 1986 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Harry E. Clai-borne, S. Doc. 99-48, 99th Cong., 2d Sess. (1986); Alcee Hastings, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101-18, 101st Cong., 1st Sess. (1989); Walter Nixon, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101-22, 101st Cong., 1st Sess. (1989). In addition, impeachment proceedings against district judge George W. English were dismissed in 1926 following his resignation six days prior to the scheduled start of his Senate trial. 68 CONG. REC. 344, 348 (1926). See also ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 MINN. L. REV. 185, 194-96 (1939). The others who have faced impeachment trials in the Senate are Senator William Blount (acquitted); Secretary of War William Belknap (acquitted); President Andrew Johnson (acquitted); and President William J. Clinton (acquitted). For summary and discussion of the earlier cases, see CONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS AND MATERIALS (A. Boyan ed., 1976); and Paul S. Fenton, The Scope of the Impeachment Power, 65 NW. U. L. REV. 719 (1970) (appendix), reprinted in Staff of the House Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1818 (Comm. Print. 1998).

769 It has been argued that the impeachment clause of Article II is a limitation on the power of Congress to remove judges and that Article III is a limitation on the executive power of removal, but that it is open to Congress to define “good behavior” and establish a mechanism by which judges may be judicially removed. Shartel, Federal Judges—Appointment, Supervision, and Removal—Some Possibilities Under the Constitution, 28 MICH. L. REV. 485, 723, 870 (1930). Proposals to this effect were considered in Congress in the 1930s and 1940s and revived in the late 1960s, stimulating much controversy in scholarly circles. E.g., Kramer & Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of “During Good Behavior,” 35 GEO. WASH. L. REV. 455 (1967); Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135; Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L. J. 1475 (1970). Congress did in the Judicial Conduct and Disability Act of 1980, P. L. 96-458, 94 Stat. 2035, 28 U.S.C. § 1 note, 331, 332, 372, 604, provide for disciplinary powers over federal judges, but it specifically denied any removal power. The National Commission, supra at 17-26, found impeachment to be the exclusive means of removal and recommended against adoption of an alternative. Congress repealed 28 U.S.C. § 372 in the Judicial Improvements Act of 2002, Pub. L. No. 107-273 and created a new chapter (28 U.S.C. §§ 351-64) dealing with judicial discipline short of removal for Article III judges, and authorizing discipline including removal for magistrate judges. The issue was obliquely before the Court as a result of a judicial conference action disciplining a district judge, but it was not reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966); 398 U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that impeachment was the exclusive power.

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