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must have believed that an insane judge could be removed from the bench other than by impeachment. How did he expect insanity to disqualify a judge from office? He may have thought that an insane judge would be physically unable to sit in his official capacity, or he may have expected that in some extreme circumstances judges themselves would have the inherent power to remove a clearly incapacitated brother.

Thus a tenuous argument exists to show that the impeachment provisions in the Constitution were not, as a matter of historical evidence, intended to preclude removal by judicial action. Tentatively accepting this argument, one must next consider the grounds on which Congress could enact legislation explicitly authorizing judicial action.

B. What Are the Grounds for Removal by Judicial Action?

The clause in the Constitution granting judges tenure during good behavior would limit the grounds for removal by judicial action. Judges' tenure in office terminates upon the occurrence of a subsequent condition-misbehavior during office. Lack of good behavior implies some wrongful action or some character fault of the accused party.

In England, as was shown above, courts probably had the power to declare forfeiture of an office held during good behavior because of misconduct in office, neglect of duties, or conviction of a crime. Most authorities agree that the English courts did not extend the definition of good behavior to allow forfeiture in cases of physical or mental incapacity.78 If the common-law interpretation is accepted as the meaning of the "good behavior" clause of article III, then Congress could constitutionally enact legislation allowing an organ of the judiciary to remove judges for affirmative acts of misconduct. But can the meaning of the good behavior clause be extended beyond the common-law interpretation to cases of physical or mental disability?

Shartel and others have argued that a disabled judge could be involuntarily retired by a proper judicial proceeding, provided that the action did not deprive him of the income from his office. "There is no reason to suppose the good-behavior tenure clause of the Constitution secures to a judicial incumbent who is disabled or otherwise unfit to perform his judicial duties the privilege of continuing in office and attempting to perform the functions thereof."79

Shartel has some historical precedents to support his proposal. He cites occasions on which the King suspended officers, including two judges, who had tenure during good behavior.80 In none of these cases did the suspended officer lose his salary. Whether the King retained this power after the Act of Settlement, Shartel finds unnecessary to decide. "It is enough for us to note that this power to suspend did exist at common law, and that a good-behavior tenure [was] subject to this sweeping qualification."81 From this historical background, Shartel contends that the federal government should be able to dispense with the services of a judge when public policy demands that is, when the judge is disabled as long as it does not deprive him of his salary. Permitting the President to retire the judge from service would violate the separation of powers doctrine, he admits, but action by a court would not. 82

Critics have attacked Shartel's thesis on several grounds. Otis contends that the Senate as an impeachment court has powers broad enough to convict an incapacitated judge without continuing his salary. 83 Moreover, he argues, the goodbehavior clause only indicates the length of the judge's tenure. In this respect it merely parallels the language in article II that the executive power "shall be vested in a President of the United States [who]... shall hold his Office during the Term of four Years," rather than incorporate the common-law history of "good behavior."

But these arguments seem weaker than those which they attack. If Congress has the power to apply the good-behavior clause to cases of judicial incapacity, it has used this power reluctantly. The history of the Pickering impeachment trial indicates that most Republicans interested in impeaching and convicting this early Federalist judge had grave doubts about the legitimacy of convicting an

78 See Shartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution, 28 MICH. L. REV. 870, 903-04 (1930).

79 Id. at 905.

80 Id. at 905-06.

81 Id. at 906-07.

82 Id. at 907.

83 Otil, supra note 64, at 32-33.

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insane judge, though they eventually did so. Finally, the claim that the phrase "during good behavior" indicates only the term of office and parallels the language in article II has only tenuous support as a matter of literary style. If the Framers had really wanted grammatical unity, they could have used the phrase "tenure for life." They did not. They used instead a phrase which has a long history at common law, and it should be interpreted in the light of that history.

The real weakness in Shartel's argument lies in his definition of good behavior to include the incapacitated judge. To make this extension on constitutional grounds, Shartel has assumed that a judge is like any other public officer, except that his salary is assured by the judicial compensation clause of article III. This assumption is not valid; a federal judge differs significantly from other public officers. Unlike most executive officers, he is appointed by the President with the advice and consent of the Senate and receives a commission to a specific judgeship. Unlike other public officials, who may move throughout the country to perform their work, the federal judge sits only in the district or circuit for which he was appointed.

Finally, senior members in the executive departments have the power to remove appointees subordinate to them. They base this authority on the concept that the office is a public trust and or the common-law doctrine that the power to appoint implies the power to remove.85 However, the Supreme Court has held that, under the separation-of-powers doctrine, when an officer of one branch makes an appointment to a position in another branch, the power to remove no longer necessarily follows from the power to appoint. 86

In assessing Shartel's historical arguments as to the scope of the King's power, prior to the Act of Settlement to remove officials holding tenure during good behavior, one must keep in mind that the issue in those cases was whether the King had the right to remove officials and judges at will. The Chancellor assumed he did, and the question of disability did not arise."7

Hence, the evidence does not furnish any support for the proposition that Congress can constitutionally authorize a special commission of the judiciary to remove incapacitated judges by virtue of a broad early understanding of the phrase "during good behavior." Yet, if the stipulation "during good behavior" precludes dismissal of a disabled judge, the effectiveness of any special court for judicial removal established by Congress could be seriously diminished. Although Congress could constitutionally establish through legislation a special court procedure to remove federal judges for affirmative acts of misconduct, it could not police an important potential problem area in the judiciary-the incapacitated judge.

CONCLUSION

The Chandler incident illustrates the need for an alternative to impeachment for disciplining an unfit federal judge. Some form of the California Commission on Judicial Fitness appears to be the most adequate substitute for impeachment. Certainly one can present a case for creating this new procedure by legislation, but considering the lack of historical evidence to show that the federal judiciary inherently has the power to make judicial removals, Congress should establish an alternative to impeachment only through a constitutional amendment. In addition to providing an alternative means of removal, an amendment could broaden the grounds for removal to include mental and physical incapacity. An amendment corresponding to the American Bar Association's proposal would allow the judiciary to police its own ranks without interference from other governmental branches. The public's gain in having a procedure for ensuring competent and uncorrupt judges should offset any individual judge's loss of independence. One can only hope that a movement for a constitutional amendment setting up such a commission wins acceptance.

34 See Turner, supra note 77.

ROBERT R. DAVIS, Jr.*

85 See Humphrey's Ex'r v. United States, 295 U.S. 602, 609 (1935) (dictum).

86 See id. at 611.

87 See Shartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution, 28 MICH. L. REV. 880, 880-84 (1930). *A.B. 1963, Dartmouth College; LL.B. 1966, Stanford University.

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Once employed to topple giants-Strafford, Clarendon, Warren Hastingsimpeachment has sunk in this country to the ouster of dreary little judges for squalid misconduct. Did the Framers intend that the legislative wheels of a great nation must grind to a halt so that Congress, and Congress alone, could determine whether such men must go.2 Steeped in English history, the Framers knew, to borrow from Bryce, that impeachment was so heavy a "piece of artillery'' as to be unfit for ordinary use." Was the provision of artillery to deal with Presidential usurpation intended to forbid use of a pistol to lay low a thief.5

3

The claim that impeachment is the exclusive means for removal of judges rests on three propositions. First, the express provision for impeachment in the Constitution bars all alternatives; second, judges enjoy "absolute independence," not only from Congress and the Executive but from other judges as well; third, the Article III provision that judges "shall hold their offices during good behavior" affords them special insulation from removal except by impeachment. Contemporary interest is heightened by Congressman Gerald Ford's proposal, in which 109 other Representatives joined, to impeach Justice William O. Douglas for "high crimes and misdemeanors." Apparently aware that the alleged misconduct may fall short of “high crimes and misdemeanors," Congressman Ford maintains that impeachment comprehends departures from "good behavior." If judges are removable only by impeachment, as Justice Douglas asserted in his Chandler dissents, and if "high crimes and misdemeanors" does not include all "misbehavior," it follows that judges guilty of misbehavior not amounting to impeachable misconduct are sealed into office, notwithstanding the teaching of the common law that tenure "during good behavior" is terminated by bad behavior. Three major questions emerge. First, does impeachment furnish the exclusive mode for removal of judges; second, do impeachable offenses "high crimes and misdemeanors"-embrace all infractions of "good behavior"; and third, if they do not, what alternative method of removal for nonincluded infractions is available?

Copyright by Raoul Berger. The substance of this article will appear in a forthcoming book entitled "Impeachment.'

A.B. 1932, University of Cincinnati; J.D. 1935 Northwestern University; LL.M. 1938, Harvard University. 1 See J. BORKIN, THE CORrupt Judge (1962); see pp. 1514-16 infra.

In the First Congress Vining declared that impeachment is "insufficient to secure the public safety," pointing to the ongoing trial of Warren Hastings: "With what difficulty was that prosecution carried on! What a length of time did it take to determine!" 1 ANNALS OF CONG. 373 (1789) (Gales & Seaton ed. 1836; print bearing running-page title "History of Congress"). Subsequently he termed impeachment "circuitous," "dilatory and inefficient," "what delays and uncertainties," id. at 465, 571. To the same effect Madison, Boudinot, Hartley and Sylvester, id, at 497, 375, 480, 562.

" 81

"Impeachment trials have averaged from sixteen to seventeen days, and the case of Judge Archbald ran for six weeks .." J. BORKIN, supra note 1, at 195. The trial of Justice Samuel Chase ran for about a month and the printed account occupies almost 600 pages. 14 ANNALS OF CONG. 80 (8th Cong., 2d Sess. 1805). After the trial of district judge Halsted Ritter, Congressman Reed said that Senators should not thus "be required to set aside their legislative duties, paralyzing for weeks the lawmaking function CONG. REC. 6175 (1937). In the midst of World War II, Professor J. W. Moore wrote, "it is absurd to think that large national interests during the war.. must wait upon the trial of Judge X." Moore, Judidial Trial and Removal of Federal Judges: H.R. 146, 20 TEXAS L. Rev. 352, 356 (1942). See also pp 1515-16 infra. H. COLBOURN, THE LAMP OF EXPERIENCE 19, 25, 156, 183, 185 (1965).

'I BRYCE, AMERICAN COMMONWEALTH 233 (1908). "It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at." Ibid. Woodrow Wilson said of the impeachment process, "it requires something like passion to set them agoing; and nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. Indignation so great as to overgrow party interest may secure a conviction; nothing less can." W. WILSON, CONGRESSIONAL GOVERNMENT 275-76 (1901.)

Coincident with the impeachment of Justice Chase there was talk of impeaching district judge Richard Peters who sat with him on Circuit and who wrote, "I never sat with him without pain, and he was forever getting into some intemperate and unnecessary squabble." 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 281 (1937). When this proposal came to Peters' ears, he wrote, "I think they are charging a cannon to shoot a mosquito." Id. at 289 n.1.

116 CONG. REC. H3113-14 (daily ed. April 15, 1970); Viorst, Bill Douglas Has Never Stopped Fighting the Bullies of Yakima, N. Y. Times, June 14, 1970, § 6 (Magazine), at 8, 32.

?Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 136 (1970) (Douglas, J., dissenting) [hereinafter cited as Chandler II]; Chandler v. Judicial Council of the Tenth Circuit, 382 U.S. 1003, 1005-06 (1966) (Black, J., dissenting, with Douglas, J., concurring) (hereinafter cited as Chandler I],

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8

These are problems that have yet to receive a satisfactory resolution; bald assertion has too often substituted for analysis, proceeding from assumptions that are at war with the intention of the Framers. Hopefully, a re-examination of the historical and testual materials may throw fresh light on the issues.

It will serve to clarify analysis if we bear in mind the differences in provenance, objectives and procedures between "high crimes and misdemeanors" and "good behavior." The former phrase is found in Article II, § 4, the Executive Article of the Constitution: "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." Elsewhere I have shown that "high crimes and misdemeanors' fell into recognizable categories at common law, that the Framers adopted the phrase in its "limited," "technical meaning," and contemplated that it would be employed only for "great offenses." At common law, impeachment was a criminal proceeding, brought by the House of Commons before the House of Lords (under the "course of Parliament" as distinguished from the general criminal law) which resulted both in removal from office and in severe penalties. Generally speaking, it was employed to remove offenders whom the King refused or neglected to remove. The provision for judicial tenure “during good behavior” is located in Article III, § 1, the Judicial Article. Derelictions from "good behavior" were reachable in the English courts by a proceeding to forfeit the office. It was brought by one who appointed to either private or public office, or by his agent, and its sole object was to remove the misbehaving appointee. As will appear, the standard of "misbehavior" was broader than that of "high crimes and misdemeanors." In sum, at common law there was a civil forfeiture proceeding for "misbehavior" brought in a court, and a criminal impeachment proceeding brought by and in the Parliament. Never, so far as I could discover, did an English impeachment charge a breach of "good behavior"; instead the stock charges were "high treason and other high crimes and misdemeanors." The intermixture of these quite distinct common law procedures and doctrines has bred confusion in the United States.

I. GOOD BEHAVIOR

A. Its Common Law Connotations

Only judges "hold their offices during good behavior"; no other officer has such tenure. The President and Vice President are elected for a term; and civil officers, who with the President and Vice President are the subjects of impeachment, are appointed for indeterminate terms. "Good behavior" is commonly associated with the Act of Settlement (1700) 10 which granted judges tenure quamdiu se bene gesserint, that is, for so long as they conduct themselves well, and provided for termination by the Crown upon the Address (formal request) of both Houses of Parliament." The origin of "good behavior," however, long antedates the Act. Judge St. George Tucker, a pioneer commentator on the Constitution, noted in 1803 that

these words (by a long train of decisions in England even as far back as the reign of Edward the third) in all commissions and grants, public and private, imported an office or estate, for the life of the grantee, determinable only by his death, or breach of good behaviour. 12

8 Professor Kurland states with respect to removal of judges, "There is more literature than learning.'. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. CHI. L. REV' 665, 668 (1969). Professor Stolz refers to the opposing views of Professor Burke Shartel and Judge Merrill Otis as "some distingushed though partisan scholarship of about thirty years ago." Stolz, Disciplining Federal Judges: Is Impeachment Hopeless?, 57 CALIF. L. REV. 659, 660 (1969).

Berger, Impeachment for "High Crimes and Misdemeanors," in The Henry M. Hart, Jr. Memorial Festschrift, 44 S. CAL. L. REV.-(1971) [hereinafter cited as Berger, Festschrift]. In that article I conclude that at common law impeachment did not require an offense punishable under the general criminal law, that several provisions in our Constitution indicate it was not designed to be a criminal proceeding, and that the phrase "high crimes and misdemeanors" was deemed by the Framers to have a limited, technical meaning rather than to confer unlimited power to impeach. See also pp. 1511, 1512-13 infra. The categories of "high crimes and misdemeanors," roughly, were misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament's prerogatives, corruption, and advice of pernicious meausres. Berger, Festschrift, ibid. 10 John Taylor of Caroline stated of "good behavior" tenure, "It was invented in England to counteract the influence of the crown over the judges." Quoted in Carpenter, Repeal of the Judiciary Act of 1801, 9 AM. POL. SCI. REV. 519, 525 (1915). See also Ross, "Good Behavior" of Federal Judges, 12 U. KAN. CITY L. REV. 119 (1944); 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, 456 (1967).

11 The Act of Settlement, 12 & 13 Will. 3, c. 2, § 3. For further discussion of the Act, see pp. 1500-01 infre. 12 ST. G. TUCKER, in 1 W. BLACKSTONE, COMMENTARIES App. 353 (Tucker ed. 1803).

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So it had been indicated by Coke; 13 and in 1693 Chief Justice Holt understood Coke to refer to "an estate for life determinable upon misbehaviour,” and declared that" during good behaviour' is during life; it is so long as he doth behave himself well "14 In the Pennsylvania Ratification Convention, Chief Justice McKean explained that "the judges may continue for life, if they shall so long behave themselves well"; 15 and citations can be multiplied. When Hamilton stated that "good behavior" was copied from the English model he stated the obvious.16 It only confuses matters to set life tenure apart from tenure "during good behavior," as Dean Kramer and Professor Barron have done, and to read various shorthand references to judicial tenure as "life tenure," which "taken at face value . . . appear to preclude judicial removal," that is, removal by judges.17 For at common law "life tenure" itself was conditioned on "good behavior," and was determined by the grantee's misbehavior.18 "Good behavior," said Coke, "is no more than the law would have implyed, if the office had been granted for life." 19 Bacon's Abridgment explains more fully,

If an office be granted to a Man to have and enjoy so long as he shall behave himself well in it; the Grantee hath an Estate of Freehold in the Office. for since nothing but his Misbehaviour can determine his Interest, no Man can prefix a shorter term than his Life; since it must be by his own Act (which the Law does not presume to foresee) which only can make his Estate of shorter Continuance than his Life.

And, Bacon continues, under "a Grant to a Man for so long Time as he shall behave himself well... his Misbehaviour in each Case determines his Interest." 20 B. Scire Facias to Determine Misbehavior: The Judicial Role

When an office held "during good behavior" is terminated by the grantee's misbehavior, there must be an "incident" power "to carry the law into execution" if "good behavior" is not to be an impotent formula.21 English law provided a proceeding to forfeit the office by a writ of scire facias.22 An act "contrary to what belongs to his office," resulted in forfeiture of the office, as appears in the Abridgments of Viner and Bacon, and in the Digest of Comyns, 23 which faithfully reflect the cases.24 The writ of scire facias, said Blackstone, was the remedy to repeal a patent in case of forfeiture.25 It is true that this procedure found employment with respect to lesser officials, rising no higher than a Recorder, a lesser judge; 26 and Judge Merrill Otis correctly stated that there is no English case wherein a judge

13 COKE ON LITTLETON 42a.

14 Harcourt v. Fox, 1 Show, K.B. 426, 506, 536, 89 Eng. Rep. 680, 720, 736 (1693).

152 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 539 (2d ed. 1836).

16 THE FEDERALIST No. 65, at 425; No. 78, at 511 (Mod. Lib. ed.) (A. Hamilton).

17 Kramer & Barron, supra note 10, at 455.

18 Kramer & Barron, id. at 455, notice "some cases" which utter such learning but apparently regard them as one of two conflicting lines of authority.

19 4 E. COKE, INSTITUTES OF THE LAWS OF ENGLAND 117; cf. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).

20 3 M. BACON. A NEW ABRIDGMENT OF THE LAWS OF ENGLAND "Offices and Officers" (H) 733 (1st ed. 1740).

21 Speaking in Rex. v. Richardson, 1 Burr, 517, 539, 97 Eng. Rep. 426, 438 (1758), of the power to remove an officer unfit for office, Lord Mansfield declared, "It is necessary to the good order and government of corporate bodies, that there should be such a power. . . . Unless the power is incident, franchises or offices might be forfeited for offenses: and yet there would be no means to carry the law into execution." To the same effect Lord Bruce's Case, 2 Str. 819, 820, 93 Eng. Rep. 870 (1728). In 1862, the English Crown law officers rendered an opinion with reference to judicial "good behavior" tenure that "when a public office is held during good behaviour, a power [of removal for misbehaviour] must exist somewhere: and when it is put in force, the tenure of the office is not thereby abridged, but it is forfeited and declared vacant for nonperformance of the condition on which it was originally conferred." Quoted in 1 A. TODD, PARLIAMENTARY GOVERNMENT 192 (Walpole ed. 1892).

22 3 M BACON, supra note 20, at (M) 742-43: 4 J. COMYNS, A DIGEST OF THE LAWS OF ENGLAND "Officer" (K) 259 (1766): and see note 26 infra. The writ of quo warranto has replaced scire facias. Shartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution, 28 MICH. L. REV. 870, 887-88 (1930).

23 16 C. VINER, GENERAL ABRIDGEMENT OF LAW AND EQUITY "Officers and Offices" (N) 122 (743): 3 M. BACON, supra note 20, at (M) 741: 4 J. COMYNs, supra note 22,at (K) 255.

24 [E]very voluntary act done by an officer contrary to that which belongs to his office is a forfeiture of his office...." Earl of Pembroke v. Sir H. Barkeley, Popham 116, 118, 79 Eng. Rep. 1223, 1224 (1597): Earl of Shrewsbury's Case, 9 Co. Rep. 46b, 50a, 77 Eng. Rep. 798, 804 (1611): Regina v. Bailiffs of Ipswich, 2 Salk, 435 91 Eng. Rep. 378 (1707).

25 3 W. BLACKSTONE, COMMENTARIES* 260-61.

26 The cases are set forth in Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, in SUPREME COURT REVIEW 135, 153–54 (P. Kurland ed. 1969).

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