had to appoint judges quamdiu se bene gesserint (during good behavior). Parliament, however, retained the power to remove judges by bill of attainder, impeachment, and address. Although there is some dispute whether all parliamentary procedures survived the Act of Settlement, address definitely did.

Third, the judiciary had its own proceedings to divest an errant judge of office. The King's Bench by writ of scire facias could declare forfeiture of office for all judges who held office under royal patents (superior court judges). Superior courts, by quo warranto, could oust any inferior court judge, since he did not hold his position by royal patent. At common law the grounds for a forfeiture of superior and inferior court positions were misconduct, neglect of duty, or conviction of a crime. A judgment of ouster followed a forfeiture proceeding and formally removed the judge from office.

To this English background of judicial removal the members of the American Constitutional Convention applied Montesquieu's theory on the separation of powers within the federal government.67 They clearly intended each of the governmental branches to be independent of the other's control. Considering the available removal procedures, they believed that address deprived the judiciary of an important share of its independence by allowing Congress to oust a judge simply by a designated majority of votes.68 They specifically prohibited bills of attainder 69 and retained only impeachment.

Thus the separation-of-powers doctrine prevented any legislative removal of executive or judicial officers except by a single, expressly authorized procedureimpeachment. Likewise, the Framers wanted to ensure the judiciary's independence from executive control. To achieve this they adopted the English constitutional system of granting judges tenure "during good Behavior." 70 The Constitution gave the President the power to appoint but not the power to remove judges.

Silence in the Constitution and in the records of the Constitutional Convention concerning removal by judicial action, however, does not necessarily mean that the Farmers intended to exclude this procedure. Removal by judicial action is not inconsistent with the separation of powers concept, for the proceedings would remain entirely within the judiciary. Furthermore, the draftsmen must have known that under the established common-law meaning of the phrase "during good behavior," King's Bench could oust judges who held office by royal patents for misconduct, neglect of duties, or conviction of a crime. Perhaps the Convention thought that the federal judiciary, once established, would have the same inherent powers as the English courts to decide whether a judge forfeited his office for misbehavior.

Further, use of the term "impeach" instead of "remove" in the exclusive grant of power to Congress is significant. Impeachment has a technical meaning which need not involve removal at all. Even after he has resigned, an officer may be convicted on impeachment so that he can never hold office again. Those at the Constitutional Convention were familiar with English legal and political theory in general and with impeachment in particular. As Shartel agrues: "[I]t is hard to believe... that they used the word 'impeach' in a sense equivalent to ‘remove” or in any sense but its normal technical sense.

"' 71

Shartel might have bolstered his argument by referring to congressional action following the Convention. The first Congress enacted a statute disqualifying any federal judge who had been convicted of accepting a bribe,72 indicating that members of the first Congress did not believe that the Constitution precluded them from requiring the removal of any judge convicted of a serious crime by a court of the judicial branch.

Critics have been unwilling to accept completely the above arguments that impeachment is not the exclusive removal procedure.73 First, they doubt the 67 M. FARRAND, THE FRAMING OF THE CONSTITUTION 49 (1913).

68 2 RECORDS OF THE FEDERAL CONVENTION 428-29 (Farrand ed. 1911). Apparently the committeemen believed that impeachment, with its formal proceedings (one house as the accuser and the other as the court), would better protect the judge from removal on congressional whom than would address.

69 U.S. CONST. art. I, § 9.

70 U.S. CONST. art. 3, § 1.

71 Shartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution. 28 MICH. L. REV. 870. 893 (1930).

72 "[T]he judges... who shall in any wise accept or receive [any bribe]... on conviction thereof shall be fined and imprisoned at the discretion of the Court: and shall forever be disqualified to hold any office of honour, trust, or profit. under the United States." Act of April 30, 1790, REV. STAT. § 5449, present version found at 18 U.S.C. § 206-07 (1964).

73 The sharpest critic of these arguments has been Otis, supra note 64.

English courts at common law to remove by judicial action judges having tenure during good behavior. Before the Act of Settlement, the King's Bench used a writ of scire facias to declare a forfeiture of office for a judge having tenure "at the King's pleasure." After the Act of Settlement, the King's Bench did not remove any judges whose commissions read "during good behavior." Historical research has not conclusively disclosed the effect of the Act of Settlement, but the act may have made address the exclusive means for removal. If the act precluded forfeiture of office by judicial action, it is argued, then the members of the Constitutional Convention would probably not have been familiar with judicial removal procedure and could not have intended to preserve it in the Constitution.

The views of two early commentators on the Constitution-Story and Hamilton -provide a second argument that the Constitution made impeachment the exclusive removal procedure. In The Federalist Hamilton argues that a federal judge receives tenure "during good behavior" to protect judicial independence. He then considered the impeachment articles:

[The judges] are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate, and if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our Constitution in respect to our own judges.74

Plainly, Hamilton did not want to allow any legislative or executive interference with the judiciary. He did not believe that a judge should be removed for inability, and presumably this included mental and physical incapacity. As he saw it,

[A]n attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.75

Story also made broad statements arguing that judicial removal could only be effected by impeachment. In Martin v. Hunter's Lessee and again in his Commentaries he discusses the independence of the judiciary and the mandatory requirements of article III calling for Congress to establish inferior federal courts and asks: "Could Congress create or limit any other tenure of the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions; it must be in the negative." 76

While Hamilton's and Story's statements are significant, they should be considered in context. Both men were ardent nationalists who saw a strong judiciary as an important vehicle for federal supremacy. Their arguments concerning the security of tenure (the exclusiveness of impeachment as a removal procedure) are attempts to assert judicial independence, if not judicial supremacy. For example, the quotation from the Martin case is not a holding of that case but rather a personal appeal to Congress to recognize the independence of the judiciary. Hamilton and Story did not attempt to analyze whether impeachment should be the exclusive removal procedure. Story, especially, simply assumed that a federal judge who held office during good behavior could not be removed except by impeachment.

Indeed, one might ask the meaning of the last part of Hamilton's quotation: "... insanity without any formal or express provision may be safely pronounced to be a virtual disqualification." "Treason, Bribery, or other high Crimes and Misdemeanors" were the only enumerated grounds in the Constitution for removal by impeachment. Most of Hamilton's contemporaries believed that these criteria only applied to offenses showing moral depravity and not to conditions of incapacity." When Hamilton wrote the quoted passage, he 74 THE FEDERALIST No. 79, at 532-33 (Lodge ed. 1888) (emphasis added).

75 Ibid.

76 Martin v. Hunter's Lessee, 12 U.S. (1 Wheat.) 304, 328-29 (1816), quoted in 2 J. STORY, COMMENTARIES ON THE CONSTITUTION § 1590 (5th ed. 1891) (emphasis added).

77 For a general discussion of the meaning of impeachment in the first years of the Republic, see Turner, The Impeachment of John Pickering, 54 AM. HIST. REV. 485 (1949).

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.

insane judge, though they eventually did so. 84 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.97

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.

84 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.

[From the Yale Law Journal vol. 79, No. 8, July 1970]

IMPEACHMENT OF JUDGES AND "GOOD BEHAVIOR" TENURE*

(By Raoul Bergert)

Once employed to topple giants-Strafford, Clarendon, Warren Hastings— impeachment has sunk in this country to the ouster of dreary little judges for squalid misconduct.1 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,3 the Framers knew, to borrow from Bryce, that impeachment was so heavy a "piece of artillery" as to "be unfit for ordinary use.' ."4 Was the provision of artillery to deal with Presidential usurpation intended to forbid use of a pistol to lay low a thief.5

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.

2 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. 3 H. COLBOURN, THE LAMP OF EXPERIENCE 19, 25, 156, 183, 185 (1965).

41 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.)

5 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.

6116 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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