Federal Judges Misbehaving

IS CONGRESSIONAL ACTION NEEDED?

by Stephen Thomas, ©2017

(Dec. 6, 2017) — After the SCOTUS ruling this past week which has overturned the efforts of activist judges in the federal courts, it is obvious that a lot of time and money have been wasted while jeopardizing our national security and US.  I am not a legal scholar, but, I know the U.S. Constitution allows the POTUS broad controls of who may enter our country.  If I know this, why don’t these federal judges who are supposed to be on top of their game know this?  The answer to this question seems obvious.

This search led to an article in the Yale Law Journal (October 2006) which has some very interesting insights regarding the removal of federal judges.  A copy of the article’s abstract is included below along with a link to the full article for anyone wanting to read further.   Hopefully, this article will find its way to some courageous (constitution-loving) legislator’s or prosecutor’s desk.  It is time to hold misbehaving judges accountable for their actions.

Recent removal of Alabama Supreme Court Chief Justice (Roy Moore; 2003 and 2016) suggests that the conventional view (impeachment being the only method for the removal of federal judges from the bench) might be in error.  The removal/suspension was accomplished through the Alabama Court of the Judiciary.

What could be considered misbehavior by a federal judge?  This question will undoubtedly be parsed out by a variety of legal minds.  From a layman’s point of view it would seem that misbehavior is:

1.  Rendering decisions that “make new law.”
2.  Rulings that are obviously contrary to OUR constitution.
3.  Judicial activism in pursuit of a political objective.
4. A judge breaking “ethical rules” or the Canons which are laid out in the “Code of Conduct for United States Judges.”
(http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges)

Many other items could probably be added to this short list, but observation indicates that the aforementioned “Code of Conduct” seems to be ignored by our government officials and is certainly not being adhered to.

In short, it may take an “Act of Congress” to build the mechanism necessary to remove misbehaving judges.  We can only hope that this will happen sooner rather than later.

Article by:
Saikrishna Prakash & Steven D. Smith

authors. Saikrishna Prakash is Herzog Research Professor of Law, University of San Diego. Steven D. Smith is Warren Distinguished Professor of Law, University of San Diego. The authors are grateful for the valuable comments and criticisms offered by Larry Alexander, Hasmik Badalian, Laurie Claus, Mike Rappaport, Martin Redish, and participants at the University of San Diego and Cornell Law School faculty workshops. The authors also thank Ana Arboleda for her research assistance.

How To Remove a Federal Judge

abstract. Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at the Founding, good-behavior tenure and impeachment had only the most tenuous of relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior.  There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many might suppose, judges were not the only ones who could be granted good-behavior tenure.  Anything that might be held—land, licenses, employment, etc.—could be granted during good behavior, and private parties could grant good-behavior tenure to other private individuals.  Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good-behavior tenure had forfeited her tenure by reason of misbehavior. Whether a landholder, employee, or government officer with good-behavior tenure had misbehaved would be determined in the ordinary courts of law.  Moreover, the vast majority of state constitutions did not equate good-behavior tenure with impeachment either. To the contrary, many distinguished them explicitly. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment. More importantly, they indicate that the original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law.

To read the entire 66 page article go to this link:
https://www.yalelawjournal.org/article/how-to-remove-a-federal-judge