Judges

Introduction

Appointment of Judges

The manner in which federal judges are chosen, the terms for which they serve, and even the salaries they are paid are vital parts of the Constitution’s design of an independent judicial branch. The Constitution declares that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court…” (Article II, Section II, Clause 2).

Congress has provided the same procedure for the selection of all other federal judges.

The Senate has a major part in the selection of all federal judges, and in particular those who sit in the nation’s 94 district courts. In effect, the Constitution says that the President can name to the federal bench anyone the Senate will confirm. Recall the practice of senatorial courtesy. It gives great weight to the wishes of the senators from a State in which a federal judge is to serve. In short, that unwritten rule means that the President almost always selects someone the senators from the State recommend.

Most federal judges are drawn from the ranks of leading attorneys, legal scholars and law school professors, former members of Congress, and State court judges. A President applies the same sorts of considerations to his judicial selections as he does to his other appointments.

From George Washington’s day, Presidents have looked to their own political party in making judicial appointments. Republican Presidents regularly choose Republicans; Democrats usually pick Democrats. Every President knows that the judges he appoints may serve for decades. So the chief executive regularly looks for judges who tend to agree with his own legal, political, economic, and social views.

The concepts of judicial activism and judicial restraint also affect the judicial selection process–especially at the Supreme Court level. Federal judges often decide cases in which they must interpret and apply a provision in the The proponents of judicial restraint believe that judges should always try to decide cases on the basis of:

• the original intent of those who wrote the Constitution or enacted the statute, and
• precedent–that is, in line with previous decisions in similar cases.

They say that elected legislators, not appointed judges, should make law.
Those who support judicial activism think that judges should act more boldly. They argue that the law should be interpreted and applied in the light of ongoing changes in conditions and values–especially in cases involving civil rights and social welfare issues.

The President and his closest political and legal aides, especially the attorney general, take the lead in selecting federal judges, of course. Major roles also are played regularly by influential senators (notably those from the nominee’s home State); by the President’s allies and supporters in the legal profession; and by various other important personalities in the President’s political party.

Judges (Persons Subject to Impeachment)

Article III, section 1 specifically provides judges with “good behavior” tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior, and it has been assumed that judges are made subject to the impeachment power through being labeled “civil officers.” 1 The records in the Convention make this a plausible though not necessary interpretation.2 And, in fact, eleven of the fifteen impeachments reaching trial in the Senate have been directed at federal judges, and all seven of those convicted in impeachment trials have been judges.3 So settled apparently is this interpretation that the major arguments, scholarly and political, have concerned the question of whether judges, as well as others, are subject to impeachment for conduct that does not constitute an indictable offense, and the question of whether impeachment is the exclusive removal device for judges.4

Resources

References

This text about Judges is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] See NATIONAL COMM’N ON JUDICIAL DISCIPLINE & REMOVAL, REPORT OF THE NATIONAL COMM’N ON JUDICIAL DISCIPLINE & REMOVAL 9-11 (1993). The Commission was charged by Congress with investigating and studying problems and issues relating to discipline and removal of federal judges, to evaluate the advisability of developing alternatives to impeachment, and to report to the three Government Branches. Pub. L. 101-650, 104 Stat. 5124. The report and the research papers produced for it contain a wealth of information on the subject.

[Footnote 2] For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, supra, at 22, 244, 223-24, 231; 2 id. at 186. On August 27, it was successfully moved that the provision in the draft of the Committee on Detail giving the Supreme Court jurisdiction of trials of impeachment be postponed, id. at 430, 431, which was one of the issues committed to the Committee of Eleven. Id. at 481. That Committee reported the provision giving the Senate power to try all impeachments, id. at 497, which the Convention thereafter approved. Id. at 551. It may be assumed that so long as trial was in the Supreme Court, the Framers did not intend that the Justices, at least, were to be subject to the process.

The Committee of Five on August 20 was directed to report “a mode for trying the supreme Judges in cases of impeachment,” id. at 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the House. Id. at 367. Consideration of this report was postponed. On August 27, it was proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id. at 428-29. The matter was not resolved by the report of the Committee on Style, which left in the “good behavior” tenure but contained nothing about removal. Id. at 575. Therefore, unless judges were included in the term “civil officers,” which had been added without comment on September 8 to the impeachment clause, id. at 552, they were not made removable.

[Footnote 3] The following judges faced impeachment trials in the Senate: John Pickering, District Judge, 1803 (convicted), 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2319-2341 (1907); Justice Samuel Chase, 1804 (acquitted), id. at §§ 2342-2363; James H. Peck, District Judge, 1830 (acquitted), id. at 2364- 2384; West H. Humphreys, District Judge, 1862 (convicted), id. at §§ 2385-2397; Charles Swayne, District Judge, 1904 (acquitted), id. at §§ 2469-2485; Robert W. Archbald, Judge of Commerce Court, 1912 (convicted), 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 498-512 (1936); Harold Louderback, District Judge, 1932 (acquitted), id. at §§ 513-524; Halsted L. Ritter, District Judge, 1936 (convicted), Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d Sess. (1936); Harry Claiborne, District Judge, 1986 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc. 99-48, 99th Cong., 2d Sess. (1986); Alcee Hastings, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101-18, 101st Cong., 1st Sess. (1989); Walter Nixon, District Judge, 1989 (convicted), Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101- 22, 101st Cong., 1st Sess. (1989). In addition, impeachment proceedings against district judge George W. English were dismissed in 1926 following his resignation six days prior to the scheduled start of his Senate trial. 68 CONG. REC. 344, 348 (1926). See also ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903, 23 MINN. L. REV. 185, 194-96 (1939). The others who have faced impeachment trials in the Senate are Senator William Blount (acquitted); Secretary of War William Belknap (acquitted); President Andrew Johnson (acquitted); and President William J. Clinton (acquitted). For summary and discussion of the earlier cases, see CONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS AND MATERIALS (A. Boyan ed., 1976); and Paul S. Fenton, The Scope of the Impeachment Power, 65 NW. U. L. REV. 719 (1970) (appendix), reprinted in Staff of the House Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1818 (Comm. Print. 1998).

[Footnote 4] It has been argued that the impeachment clause of Article II is a limitation on the power of Congress to remove judges and that Article III is a limitation on the executive power of removal, but that it is open to Congress to define “good behavior” and establish a mechanism by which judges may be judicially removed. Shartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution, 28 MICH. L. REV. 485, 723, 870 (1930). Proposals to this effect were considered in Congress in the 1930s and 1940s and revived in the late 1960s, stimulating much controversy in scholarly circles. E.g., Kramer & Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of “During Good Behavior,” 35 GEO. WASH. L. REV. 455 (1967); Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135; Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 YALE L. J. 1475 (1970). Congress did in the Judicial Conduct and Disability Act of 1980, Pub. L. 96-458, 94 Stat. 2035, 28 U.S.C. § 1 note, 331, 332, 372, 604, provide for disciplinary powers over federal judges, but it specifically denied any removal power. The National Commission, supra at 17-26, found impeachment to be the exclusive means of removal and recommended against adoption of an alternative. Congress repealed 28 U.S.C. § 372 in the Judicial Improvements Act of 2002, Pub. L. 107-273 and created a new chapter (28 U.S.C. §§ 351-64) dealing with judicial discipline short of removal for Article III judges, and authorizing discipline including removal for magistrate judges. The issue was obliquely before the Court as a result of a judicial conference action disciplining a district judge, but it was not reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966); 398 U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that impeachment was the exclusive power.