At Vox, Ian Millhiser (formerly ThinkProgress): How to remove Brett Kavanaugh without impeaching him. From the introduction:
In 2006, … the Yale Law Journal published a provocative paper.
The paper, “How To Remove a Federal Judge” by law professors Saikrishna Prakash and Steven D. Smith [ed.: formerly USD Schooll of Law and currently USD School of Law, respectively], lays out a road map for, well, how to remove a federal judge without resorting to the impeachment power. It argues that a provision of the Constitution stating that federal judges and justices “shall hold their offices during good behaviour” is widely misunderstood.
Contrary to the “virtually unquestioned assumption among constitutional law cognoscenti that impeachment is the only means of removing a federal judge,” Prakash and Smith argue that the term “good behavior” is a legal term of art that would have been understood by the founding generation to allow judges to be removed by “judicial process.”
And from later on, as part of an extensive summary of the Prakash/Smith paper:
The thrust of Prakash and Smith’s argument is that an official who is appointed during “good behavior” may keep their office indefinitely, but that an official who misbehaves may be removed through an ordinary court proceeding.
Misbehavior, they argue, was understood broadly by English courts and by early Americans. It can include “conviction for such an offense as would make the convicted person unfit to hold a public office,” but also may include much lesser offenses. The two professors cite the eminent 17th-century jurist Sir Edward Coke for the proposition that misbehavior may also include “abuse of office, nonuse of office, and refusal to exercise an office.”
For this reason, Prakash and Smith claim that it is a mistake to read the Constitution as preventing a judge from being removed from office except by impeachment. The Constitution, they note, only permits impeachment of civil officers for “treason, bribery, or other high crimes and misdemeanors.” But the term “good behavior” was understood to allow an official to be removed for much lesser offenses. Therefore, the Constitution’s invocation of this term suggests that federal judges may also be removed through a process other than impeachment.
To prove their claim that the term “good behavior” allows officials to be removed in a judicial proceeding, the professors cite a raft of 17th- and 18th-century English cases that support their argument. They quote early state constitutions suggesting that service during “good behavior” can be concluded by a court proceeding — the 1776 Maryland Constitution, for example, provides that judges “shall hold their commissions during good behaviour, removable only for misbehaviour, on conviction in a Court of law.”
I'm happy to see Professors Prakash and Smith get some publicity for their provocative originalist article. But does this mean Ian Millhiser has become an originalist? Or just that Ian Millhiser is interested in originalism when it helps positions he holds for other reasons?
Posted at 6:33 AM