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Should Congress Routinely Remove Judges?

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There’s a bit of a discussion going on in comments here about the power that Congress has to essentially fire judges, and rather than post a long comment I thought I’d do a post on it.   Here’s how I see it:

  • The relevant text of Article III reads that “judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.”
  • The term “good behavior” is obviously not self-defining, and on paper could be used to remove judges for decisions that are not politically congenial.
  • If Congress has “abrogated its responsibility” by not using this broad reading, it’s been abrogating its responsibility for more than two centuries.   The Chase impeachment clearly established a norm that judges would be seen as removable only in extreme cases of personal malfeasance.   (The Jeffersonians who failed to convict Chase can hardly be seen as lickspittles for the federal courts, having abolished circuit courts established a year earlier and all.)
  • If Congress wanted to apply new norms, nothing in the Constitution would prohibit this.
  • So, then, we have to ask — would it be desirable for Congress to aggressively remove judges for political reasons?  First, I would consider who is more likely to assemble the requisite majorities and/or supermajorities — powerful vested financial interests, or isolated minorities like criminal defendants?   Then I would look at the relative performance in state courts, where norms of independence are much weaker.
  • In conclusion, if you think that the federal courts should be even more tilted towards business interests and even more disfavorable to criminal defendants, civil plaintiffs, and racial minorities, you should support Murc’s plan to have Congress aggressively use its authority under the “good behavior” clause.   If you don’t, I’d advise sticking with the norms that have been in place since the Jefferson administration.
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