Vasan Kesavan (Independent) has posted The Limits of Federal Judicial Removal (63 pages) on SSRN. Here is the abstract:
Can a federal judge be removed from office without the cumbersome process of impeachment? For nearly a century, scholars have split into two camps: those who insist impeachment is the exclusive constitutional mechanism for removing judges, and those who invoke English common law writs of scire facias and legislative practice to argue for a wider array of removal paths. Neither camp has it fully right.
This Article resolves the impasse with a two-track reading of the Good Behavior Clause that reconciles Article III tenure with Article II’s list of impeachable offenses. The question is not whether impeachment is exclusive, but exclusive as to what. Track One governs criminal misbehavior, which the Constitution leaves open to two independent paths to removal: conviction of impeachment in the Senate, or conviction of federal crime in an Article III court. Because sitting judges enjoy no special immunity from criminal process, Congress may attach removal and disqualification to a criminal conviction as statutory punishment. Track Two governs noncriminal misbehavior–abuse of office, misuse of office, and neglect of office–for which impeachment is the exclusive constitutional check.
The Founding generation would have understood the criminal law to reach misbehavior of federal judges. A fresh reassessment of Section 21 of the Crimes Act of 1790, paying close attention to its text, shows that the First Congress authorized judicial removal through ordinary criminal law–a point misread by the two research papers on which the National Commission on Judicial Discipline and Removal relied in 1993 in reaching its conclusion that only impeachment can remove a sitting judge. At a moment of intense scrutiny over federal judicial conduct, this Article offers Congress a constitutional path to legislation stripping federal judges of their offices upon duly obtained federal criminal convictions, thereby allowing precious impeachment resources to focus on noncriminal misbehavior.
Posted at 6:23 AM