The Political Spectrum

Article III, section 1, clause 2 of the Constitution of the United States says that "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour ...." This clause has recently been the subject of a number of heated comments calling for the impeachment of judges who, in the view of a select few have been failing to perform their duties en mass. Predictably, many of these complaints have stemmed from outrage at the federal courts decisions in the Terri Schiavo matter, however, an undue amount of ire has been directed at Justice Anthony Kennedy, both for his majority opinion in Roper, but also for his so-called reliance on international law in decisions like Lawrence v. Texas. All of these comments beg the question, what does "good behaviour" actually mean and when is it violated?

Now, besides being the primary constitutional basis for the "lifetime tenure" of federal judges, there appears to be significant debate over what the phrase requires judges to do. One way of determining the meaning is to consult a dictionary to see what the words good and behaviour actually mean. According to the Miriam Webster on-line dictionary, the term "good" means "of a favorable character or tendency," while the term "behaviour" (spelled of course the modern American way) means "the manner of conducting oneself." Thus, one might conclude that good behaviour means either a "favorable manner of conducting oneself," or "conducting oneself with favorable character or tendency." Regardless of which manner of expressing the idea you choose, the standard is really no higher or lower that one would expect from every citizen or visitor to this country irrespective of their position in society.

Ruth Marcus’s column in today’s Washington Post, refers to some of the rhetoric that has gone on recently with respect to judges. Perhaps among the most extreme comes from Michael Schwartz, the chief-of-staff to newly elected Senator Tom Coburn of Oklahoma. Mr Schwartz is quoted as saying that "I'm in favor of mass impeachment if that's what it takes." Mr. Schwartz apparently when on to say that "[a]n easier way, would be to oust activist judges for bad behavior. Then the judge's term has simply come to an end. The president gives them a call and says, ‘Clean out your desk, the Capitol Police will be in to help you find your way home.’" Other elected officials are quoted in the column as having similar concerns about the judiciary, however, their statements tended more towards funding and oversight than impeachment or removal from office.

This of course leads us to the question of what standards should be used for removing or impeaching a federal judge, be it a District Court Judge, Circuit Court Judge or Justice of the United States Supreme Court? Better question, does being an "activist judge" (whatever that means, something that has been debated both here and elsewhere ad nauseam and will continue to be debated) and handing down decisions that the majority party of the United States Congress doesn’t approve of or agree with subject one to impeachment or removal proceedings? In other words, did the at least 12 federal judges (1 District Court Judge, at least 6 11th Circuit Judges and at least 5 Supreme Court Justices) violate the "good behaviour" clause of Article III when they voted not to either reinsert Terri Schiavo’s feeding tube or even to hear the case?

It is true that impeachment and removal of judges is within the power of Congress (See United States v. Nixon), and to be fair it has happened with some regularity (I don’t have exact stats, but I know that it occurs and has occurred more often than many would suspect). That being said, I’m not sure that recently we have seen any public displays of "bad behavior" that would justify the impeachment or removal of any current Supreme Court Justices. Handing down a ruling that is legally flimsy (Roper), or against the personal religious beliefs of many in the United States (Lawrence) simply doesn’t meet the standard. A judge could easily conduct oneself with favorable character or tendency and have reached the opposite conclusions in both those cases. In fact, 4 justices in each case did exactly that, expressed by their dissenting opinions from the judgment of the Court. None of the Justices in either case violated the "good behaviour" clause regardless of how they came down with respect to the ultimate decision, or the rationale used to reach that decision. We will all have cases where we disagree with the outcome or question the judicial reasoning used to achieve it, however, that alone cannot and should never suffice to impeach or remove a judge or justice from the bench. Such a move would politicalize the judiciary to a point that would be both irreversible and irreparable. Judging would become entirely political, and thus, all laws, even our most revered and respected institutions, would be subject to the whims of the majority, a result none of us, regardless of political affiliation, wants to see.

Judges who take bribes, commit crimes regardless of magnatude, and otherwise dishonor their profession violate the "good behavior" clause. Lets reserve our ire and our outrage for them, and leave the rest of the judges who are simply trying to do the best job they can and decide the cases in front of them alone to do their jobs. Its difficult enough to be a judge without having to worry what Congress, the President, or the majority of the American people think of your most recent opinion, and it would be impossible if at every turn you were concerned about your job.