Removing federal judges

University of Chicago Law Review

Volumn 74, Issue 4, 2007, Pages 1227-1250

  Pfander, James E ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 38049139280     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: 10.2307/20141861     Document Type: Review

References (122)

1. See Saikrishna Prakash and Steven D. Smith, How to Remove a Federal Judge, 116 Yale L J 72 (2006).
2. But see Martin H. Redish, Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism, 116 Yale L J 139 (2006) (responding to and criticizing the Prakash and Smith view).
3. Article I assigns the "sole Power of Impeachment" to the House and provides the Senate with the "sole Power to try all Impeachments." US Const Art I, § 2, cl 5 and Art I, § 3, cl 6. Article I also specifies that "[j]udgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States." Id Art I, § 3, cl 7. It further expressly preserves the possibility of further criminal sanctions for misconduct by indictment and trial in the criminal courts "according to Law." Id. Article II specifies the officers subject to impeachment as including the "President, Vice President and all civil Officers of the United States" and specifies impeachable offenses as including "Treason, Bribery, or other high Crimes and Misdemeanors." Id Art II, § 4. Commentators have long recognized that these interlocking provisions establish rules governing the impeachment of federal judges. See, for example, Federalist 79 (Hamilton), in The Federalist 531, 532-33 (Wesleyan 1961) (Jacob E. Cooke, ed) (justifying life tenure during good behavior as a guarantee of judicial independence and indicating that judges were to be removed for misbehavior only by impeachment);
4. Joseph Story, 2 Commentaries on the Constitution of the United States § 790 at 258 (Hilliard, Gray 1833) (Fred B. Rothman & Co reprint ed 1991) (stating that judicial officers are civil officers within the meaning of Article II).
5. See Burke Shartel, Federal Judges - Appointment, Supervision, and Removal - Some Possibilities Under the Constitution, 28 Mich L Rev 485, 723, 870 (1930) (suggesting changes in the organization and administration of the federal bench that could be accomplished without constitutional amendments).
6. Article III provides that the "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." US Const Art III, § 1.
7. See Prakash and Smith, 116 Yale L J at 78 & & n 15 (cited in note 1) (discussing judicial proceedings to remove a sitting judge without drawing distinctions among different levels of the federal courts). See also id at 125 (discussing the decision of Congress under Thomas Jefferson not to pursue judicial removal proceedings after the failed impeachment of Supreme Court Justice Samuel Chase).
8. See id at 101 (indicating that this failure "does not much matter").
9. See notes 37-38 and accompanying text.
10. Thomas Jefferson, Proposed Constitution for Virginia (June 1783), in Paul L. Ford, ed, 4 The Works of Thomas Jefferson 147 (G.P. Putnam's Sons 1904).
11. See id at 159-60 (describing impeachment proceedings for superior court judges and removal proceedings for judges of inferior courts).
12. See note 2.
13. See Theodore W. Ruger, The Judicial Appointment Power of the Chief Justice, 7 U Pa J Const L 341, 369-70 (2004) (expressing doubt that Article III judges can be treated as inferior officers within the appointment power of the Supreme Court as a court of law).
14. But see James E. Pfander, Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers, 101 Colum L Rev 1515, 1603 n 374 (2001) (suggesting tentatively that the Court's supervisory power may extend to the appointment of lower court judges),
15. citing Shartel, 28 Mich L Rev at 882-83 (cited in note 3).
16. See Prakash and Smith, 116 Yale L J at 80-83 (cited in note 1).
17. Brutus XI, NY J (Jan 21, 1788),
18. reprinted in John P. Kaminski, et al, eds, 20 The Documentary History of the Ratification of the Constitution 680, 681 (Wisconsin Historical Society 2004).
19. Id.
20. See, for example, Brutus XV, NY J (Mar 20, 1788),
21. reprinted in Kaminski, et al, eds, 20 The Documentary History of the Ratification of the Constitution 871, 874 (cited in note 13).
22. Federalist 79 (Hamilton), in The Federalist 531, 533 (cited in note 2).
23. Prakash and Smith rightly note that the second clause of the sentence refers to the New York constitution but that hardly helps their case. See Prakash and Smith, 116 Yale L J at 119 n 178 (cited in note 1). For as we shall see, the federal Constitution essentially tracks the New York constitution in providing for tenure during good behavior and removal through a modified impeachment process that limits the sentence to removal from office and looks to criminal proceedings for any additional punishment. See note 50 and accompanying text. Hamilton's avowal of impeachment exclusivity as to the New York constitution applies with equal force to the federal Constitution. As for the first clause, one can surely contest Prakash and Smith's contention that Hamilton was speaking of provisions in the federal Constitution rather than identifying impeachment as the only appropriate removal provision in an ideal constitution. But even on their crabbed reading, Hamilton's claim of constitutional exclusivity would rule out alternative modes of removing supreme court judges not specified in the document.
24. The omission was apparently deliberate. Immediately after discussing impeachment and removal, Hamilton noted the absence of any provision for removing a judge "on account of inability." Federalist 79 (Hamilton), in The Federalist at 533 (cited in note 2). Rather than argue that judicial proceedings were available to test fitness for office under the good behavior standard, Hamilton argued that removal for inability could open the door to removal on the basis of "personal and party attachments and enmities." Id. Such an argument treats impeachment and conviction as the exclusive mode of removing a judge from office and treats the constitutional specification of the standard for removal as impliedly foreclosing removal on the basis of other (omitted) considerations. By ruling out removal for inability, Hamilton's argument confirms his view as to impeachment-and-removal exclusivity and leaves no room for the operation of the common law as a mode of removing judicial officers holding good-behavior tenure under Article III.
25. Compare Matthew Bacon, 3 A New Abridgement of the Law 735-36, 742 (Luke White 6th ed 1793) (noting that, at common law, where an office, such as a judicial position, required "Skill or Science," it could only be granted to those of "Skill, Knowledge, and Ability" to exercise the same; observing that judges may remove an officer, appointed to serve courts, for lack of ability).
26. See James D. Andrews, ed, 1 The Works of James Wilson 410 (Callaghan 1896). After quoting the good behavior provision of Article III, Wilson denied that the judges of the federal courts were subject to removal, as in England, on address of the two houses of Congress. He explained that "[t]hey may be removed, however, as they ought to be, on conviction of high crimes and misdemeanors." Id. Wilson thus directly connected the good behavior provisions of Article III with the impeachment provisions in earlier Articles. During the course of his discussion, Wilson did not mention the possibility of removal through judicial proceedings and concluded that judges in the United States stand on a firmer footing of independence that judges in England, where removal on address without conviction of crimes or misdemeanors was possible. See id.
27. William Rawle, A View of the Constitution of the United States 208 (H.C. Carey & I. Lea 1825).
28. See James Kent, 1 Commentaries on American Law 276-77 (O. Halsted 1826) (discussing judicial independence and identifying impeachment and removal as the process for removing judges from office).
29. See Story, 2 Commentaries on me Constitution § 784 at 253-54 (cited in note 2).
30. See, for example, Federalist 65 (Hamilton), in The Federalist 439, 442-43 (cited in note 2) (noting that an official could face criminal proceedings in the federal courts following his conviction in the Senate and removal from office).
31. See Story, 2 Commentaries on the Constitution § 784 at 253-54 (cited in note 2) ("In the ordinary course of the administration of criminal justice, no court is authorized to remove, or disqualify an offender, as a part of its regular judgment.").
32. See Prakash and Smith, 116 Yale L J at 122 (cited in note 1).
33. See id, quoting An Act for the Punishment of certain Crimes against the United States § 21, 1 Stat 112, 117 (1790).
34. See note 2 (explaining that the Constitution mandates removal from office upon conviction of an impeachable offense but gives the Senate discretion to impose a sentence of "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States").
35. But see Maria Simon, Note, Bribery and Other Not So "Good Behavior": Criminal Prosecution as a Supplement to Impeachment of Federal Judges, 94 Colum L Rev 1617, 1647-53 (1994) (reviewing early enactments and arguing that "the most sensible reading of these early statutes indicates that the penalty of disqualification necessarily included removal when applied to a sitting officer").
36. The Decision of 1789 provides a contrast. In the Decision, Congress adopted statutory language that seemingly assumes that the Constitution vests in the President a power to remove executive branch officials from office without any involvement on the part of the Senate (despite the Senate role in providing advice and consent on the appointment). See generally, Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L Rev 1021 (2006). The Act of 1790 can be similarly read to assume that the Constitution has assigned the removal power to the Senate, acting as a court to try all impeachments.
37. See Prakash and Smith, 116 Yale L J at 113 (cited in note 1) ("Given the background understandings of how good-behavior tenure would be adjudicated . . . these constitutions likely incorporated the ordinary understanding that good behavior would be determined in the ordinary courts.").
38. Id. Of course, the Northwest Ordinance also failed to specify that judges serving during good behavior were subject to removal through scire facias proceedings in the general court of the territory. See note 36. Ultimately, then, the omission of a removal mechanism proves little. Just as Prakash and Smith assume that the general court could exercise common law authority to conduct such a removal proceeding absent specific congressional authority, one could equally well assume that the legislative assembly in the Northwest Territory could claim common law legislative power to conduct impeachment proceedings. Such inferences can cut both ways.
39. Id at 128.
40. For an account of Bacon's impeachment for accepting bribes as Lord Chancellor, see Catherine Drinker Bowen, Francis Bacon: The Temper of a Man 187-204 (Little, Brown 1963).
41. Prakash and Smith, 116 Yale L J at 110 (cited in note 1) ("[I]mpeachment and good-behavior tenure were entirely different concepts.").
42. Id at 90 (noting that the grant of tenure could be qualified by language limiting the grant to a term of years during good behavior and could even be descendible until misbehavior occurred).
43. Id at 94 (describing an attempt by Charles I to oust Sir John Walter, Chief Baron of the Exchequer). The scire facias action "commands the person against whom it is issued to appear and show cause why some matter of record should not be annulled or vacated, or why a dormant judgment against that person should not be revived." Id (quotation marks and citations omitted).
44. Act of Settlement, 1701, 12 & 13 Will 3, ch 2. Prakash and Smith fight the natural implication that the specified mode of removal was exclusive of judicial proceedings. Thus, Prakash and Smith contend that the drafters of the Act would have had no reason to specify a good-behavior tenure had they meant to address the only means of removal. See Prakash and Smith, 116 Yale L J at 98 (cited in note 1). But this argument ignores the obvious possibility that good behavior sets forth the standard that Parliament was to apply in determining whether to address the Crown in connection with the proposed removal of a judge from office, just as the Constitution charges Congress with assessing judicial behavior under the impeachment-and-removal provisions. Indeed, C.H. McIlwain reports that proceedings to remove judges on address in Parliament featured trial-type proceedings and due process protections for the accused.
45. See C.H. McIlwain, The Tenure of English Judges, 7 Am Polit Sci Rev 217, 227 (1913) (noting that judges in removal proceedings had the right to "be heard, [to] employ counsel, [and to have] the laws of evidence . . . strictly observed").
46. Prakash and Smith acknowledge that English jurists viewed the Act of Settlement as an exclusive mode of judicial removal, and then seek to discredit the only source they cite by offering a textual analysis of the terms of the Act. See Prakash and Smith, 116 Yale L J at 98 & n 97 (cited in note 1) ("The clause introducing the address option begins with "but," suggesting that it was an exception from the normal rule."). But the support among English legal scholars for Act of Settlement exclusivity was much broader than Prakash and Smith appear to recognize.
47. See A. V. Dicey, An Introduction to the Study of the Law of the Constitution 270 (Macmillan 1915) (Liberty Fund reprint ed 1982) ("The judges are not in strictness irremovable; they can be removed from office on an address of the two Houses; they have been made by Parliament independent of every power in the State except the Houses of Parliament.");
48. Sir Norman Chester, The English Administrative System: 1780-1870 5 (Clarendon 1981) (describing the Act of Settlement as conferring tenure during good behavior on superior court judges and as providing that "they could be removed only by Parliament");
49. Joseph Chitty, Jr., A Treatise on the Law of the Prerogatives of the Crown 82-83 (Butterworth and Son 1820) (Garland reprint ed 1978) (noting that the grant of tenure during good behavior in the Act of Settlement gave the judges an estate for life "as their good behavior is presumed by law, and of such good behavior, it seems, Parliament only can judge");
50. Sir William R. Anson, 2 The Law and Custom of the Constitution 204 (Clarendon 1892) (acknowledging the existence of judicial removal proceedings for those holding commissions during good behavior but concluding that judicial officers holding under the Act of Settlement "can only be removed on address of the two Houses");
51. Richard Wooddeson, 1 Lectures on the Law of England 73 (Richards and Co 2d ed 1834) (intimating that the conduct of superior court judges, holding tenure during good behavior under the Act of Settlement, "seems properly enquirable only in parliament").
52. For the contrary view, see Shartel, 28 Mich L Rev at 882-83 & n 33 (cited in note 3) (collecting authorities). Blackstone's comments were less definitive; he simply repeated the words of the Act without expressing a view as to the exclusivity of parliamentary address as a form of removal
53. . See William Blackstone, 1 Commentaries on the Laws of England *267 (Chicago 1979). But he did not articulate the Prakash and Smith view that common law proceedings for judicial misbehavior must have been understood to have survived the specification of good-behavior tenure in the Act of Settlement.
54. See Laurence Claus, Constitutional Guarantees of the Judiciary: Jurisdiction, Tenure, and Beyond, 54 Am J Comp L 459, 476 n 75 (2006) (describing the 1830 removal as the "first and only use" by parliament of its power to remove judicial officers by address).
55. See Prakash and Smith, 116 Yale L J at 96-99 (cited in note 1), citing Rex v Warren, 98 Eng Rep 1135 (KB 1767) (addressing the meaning of tenure during good behavior as it affected parish clerks); Rex v Wells, 98 Eng Rep 41 (KB 1767) (court recorders); Queen v Banes, 90 Eng Rep 1183 (KB 1707) (court clerks); Domina Regina v Bailiffs of Ipswich, 91 Eng Rep 378 (KB 1706) (court recorders); Harcourt v Fox, 89 Eng Rep 680 (KB 1692) (clerks of the peace).
56. Prakash and Smith cite one case involving an English judge, see Prakash and Smith, 116 Yale L J at 102 (cited in note 1),
57. citing Ex parte Ramshay, 118 Eng Rep 65 (QB 1852), but it occurred in 1852, well after the Constitution's drafting, and dealt with the removal of a county court judge who did not enjoy tenure during good behavior under the Act of Settlement.
58. To be sure, Prakash and Smith note that some superior court judges holding office during good behavior in the seventeenth century made demands for trial to block their removal from office by Stuart kings. See Prakash and Smith, 116 Yale L J at 94-95 (cited in note 1) (describing two such efforts at resistance). But while those demands reflect an understanding that judicial determination was available, they pre-dated the Act of Settlement and provide no support for the claim that judicial proceedings to remove superior court judges survived the switch to removal by way of parliamentary address.
59. Prakash and Smith, 116 Yale L J at 110 (cited in note 1).
60. See Wooddeson, 2 Lectures on the Law of England at 355-59 (cited in note 38) (tracing the development of the Parliament's impeachment power and noting that the process resulted in the application of the nation's criminal laws to high government officials);
61. C.H. McIlwain, The High Court of Parliament and Its Supremacy 186-88 (Yale 1910) (noting the judicial origins of many Parliamentary traditions and including impeachment among Parliament's judicial functions).
62. On the rejection of legislative adjudication in the early Republic, see James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims against the Government, 91 Nw U L Rev 899, 937-45 (1997).
63. See, for example, NY Const of 1777 Art XXXIII (superseded 1821) (limiting the impeachment penalty to "removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under this State"), reprinted in Ben Perley Poore, ed, 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1328, 1337 (GPO 2d ed 1878) ("Poore's").
64. See Prakash and Smith, 116 Yale L J at 114-15 (cited in note 1) (acknowledging this development in the early use of impeachment).
65. Of the eleven new constitutions drafted in the wake of independence (Connecticut and Rhode Island made do with amendments to their charters), two included express provisions for removal through judicial proceedings. See Del Const of 1776 Art XXIII (superseded 1792) (providing judicial tenure during good behavior and declaring that judges "shall be removed for misbehavior, on conviction in a court of law, and may be removed" on address of the general assembly), reprinted in 1 Poore's 273, 276-77 (cited in note 45); Md Const of 1776 Art XL (superseded 1851) (providing for removal "only for misbehaviour, on conviction in a Court of law"), reprinted in 1 Poore's 817, 826 (cited in note 45).
66. Del Const of 1776 Art XXIII (superseded 1792), reprinted in 1 Poore's 273, 277 (cited in note 45).
67. See id Art XII (providing tenure during good behavior for the judges of the supreme court, court of admiralty, and court of common pleas).
68. NY Const of 1777 Art XXIV (superseded 1821) (describing good-behavior tenure for superior court judges), Arts XXXII, XXXIII (creating a court to try impeachments of officials for "mal and corrupt conduct in their respective offices"), reprinted in 2 Poore's 1328, 1336, 1337 (cited in note 45).
69. Id Art XXXIII.
70. English authorities were divided on the right to trial before Parliament under the Act of Settlement, but when judges were subjected to removal proceedings by joint address, the Parliament afforded them rights to counsel and to mount a defense against the charges lodged against them. See, for example, note 37.
71. For the approach in Massachusetts, see Mass Const of 1780 Ch 3, Art I (providing judges with tenure during good behavior, subject to removal by the governor on "address of both houses of the legislature"), reprinted in 1 Poore's 956, 968 (cited in note 45). This approach conformed in its essential points to that which the constitution's leading draftsman, John Adams, had earlier advocated. See John Adams, Thoughts on Government (1776), in Philip B. Kurland and Ralph Lerner, eds, 1 The Founders' Constitution 107, 109-10 (Chicago 1987) (advocating judicial tenure during good behavior and removal by impeachment). For South Carolina, see SC Const of 1778 Art XXVII (superseded 1790) (conferring tenure during good behavior on judicial officers, subject to removal by joint address of the assembly), reprinted in 2 Poore's 1620, 1625 (cited in note 45). Given the fact that both Massachusetts and South Carolina placed their removal procedures by joint address in the same provision that conferred tenure during good behavior, one does not quite know what to make of the Prakash and Smith claim that tenure and removal provisions in these constitutions were kept "quite a distance from" one another.
72. See Prakash and Smith, 116 Yale L J at 113 (cited in note 1). In New York, judges were subject to impeachment, but in both Massachusetts and South Carolina, the constitutions provided for removal on joint address, not on impeachment, and the "distance" between the provisions was quite irrelevant. South Carolina made it plain that impeachment did not apply to judges, both by adding judges to the impeachment court and by stating that impeachment applied only to those who were not amenable to another removal proceeding. See SC Const of 1778 Art XXIII (superseded 1790), reprinted in 2 Poore's 1620, 1624-25 (cited in note 45). Judges in South Carolina, of course, were amenable to removal upon address.
73. Officers serving in the military were not subject to impeachment at all, but were subject to the oversight of their commanders (and ultimately, the commander-in-chief) and to punishment for misconduct before courts martial. Commenting on the federal Constitution, Joseph Story confirmed the inapplicability of impeachment proceedings to military officers, noting that they were made responsible through the chain of command and courts martial. See Story, 2 Commentaries on the Constitution § 790 at 258-59 (cited in note 2). As a consequence, there would have been nothing anomalous in the decision of the framers of a state constitution to make no constitutional provision for the removal of military officers.
74. See Prakash and Smith, 116 Yale L J at 112-13 & n 163 (cited in note 1) (discussing the failure of Georgia's constitution to specify a constitutional mode of removal for members of the military).
75. For Delaware's provision, see the text accompanying note 48. The North Carolina constitution referred to the possibility of criminal proceedings against judges, but did not expressly make them removable through such proceedings. See NC Const of 1776 Art XIII (superseded 1868) (conferring tenure during good behavior on the judges of the supreme courts of law, equity, and admiralty), Art XXIII (declaring that state officers, "offending against the State, by violating any part of this Constitution, mal-administration, or corruption, may be prosecuted, on the impeachment of the General Assembly, or presentment of the Grand Jury of any court of supreme jurisdiction in this State"), reprinted in 2 Poore's 1409, 1412, 1413 (cited in note 45).
76. Pennsylvania set forth seven-year terms in office for the judges of the superior courts, and provided for removal by legislative address. See Pa Const of 1776 § 23 (superseded 1790), reprinted in 2 Poore's 1540, 1545 (cited in note 45).
77. NJ Const of 1776 ¶ XII (superseded 1844), reprinted in 2 Poore's 1310, 1312 (rated in note 45).
78. See Prakash and Smith, 116 Yale L J at 112, 114 (cited in note 1) (concluding that the constitution nonetheless "may very well have permitted ordinary courts to adjudicate allegations of misbehavior").
79. See Barbara Aronstein Black, Massachusetts and the Judges: Judicial Independence in Perspective, 3 L & Hist Rev 101, 108-09 (1985) (describing, although qualifying, the degree of judicial independence in the colonies).
80. On the applicability of the common law of crimes to impeachments in England, see Wooddeson, 2 Lectures on the Law of England at 364-65, 370 (cited in note 38) (noting that in trying impeachments, the upper house applies "the same rules of evidence, the same legal notions of crimes and punishments" as do the inferior courts in criminal prosecutions). With the rejection of a common law of crimes in the United States, impeachment proceedings here focus on violations of the criminal code.
81. The words misbehavior and misdemeanor were often used as synonyms in discussions of judicial or other official misconduct. See Prakash and Smith, 116 Yale L J at 97 & n 90 (cited in note 1) (citing the argument of counsel in Harcourt v Fox, 89 Eng Rep 680 (KB 1692), to the effect that tenure during good behavior was forfeited through the commission of a "misdemeanor in any office");
82. Bacon, 3 A New Abridgement of the Law at 733 (cited in note 18) ("It is said that, at Common Law, all Officers of Justice had Estates in their respective Offices during Life, and could not be removed but for Misdemeanors.").
83. See also 9 The Oxford English Dictionary 859 (Clarendon 2d ed 1989) (defining "misdemean" as "[t]o misbehave, misconduct oneself").
84. For the text of the Committee of Detail draft of the Constitution, specifying that the Supreme Court was to exercise original jurisdiction in "cases of impeachment," see Max Farrand, ed, 2 The Records of the Federal Convention of 1787 186 (Yale 1966). It would have been obvious to the framers that the Court was an improper court for the trial of impeachments of the Court's own members. Thus, in New York, while the court of impeachment included a blend of council members and high court judges, the judges were made ineligible in cases involving their own impeachment. Similarly, Virginia assigned the trial of impeachments to the general court but transferred the trial of general court judges to the court of appeals.
85. See id at 367, 376. At the time of the Rutledge report, the draft Constitution had assigned the power of impeachment to the House, but had provided for the Supreme Court to exercise "original jurisdiction" over the trial of "cases of impeachment." See id at 186 (reproducing the August 6 report of the Committee of Detail). By providing for trial of judges in the Senate, Rutledge's proposal thus sought to preserve the Court's original jurisdiction over the trials of impeachments in general, but to transfer trials of the Court's own justices to the Senate to avoid an obvious conflict. In its September 12 report, the Committee of Style proposed to amend the draft, eliminating the Court's role and giving the Senate sole power to try impeachments. See id at 592.
86. See id at 428.
87. Id. Morris's recognition that trials were available through impeachment proceedings calls into doubt the assumption that his reference to trial of misbehavior claims necessarily contemplated a common law proceeding before the courts. See also Prakash and Smith, 116 Yale L J at 114, 118 (cited in note 1) (characterizing an earlier comment by Morris in this way).
88. See Farrand, ed, 2 Records of the Federal Convention at 428-29 (cited in note 62).
89. See id at 423, 429.
90. See id at 592. The report of the Committee of Style placed sole power to try all impeachments in the Senate and expressly limited the punishment on impeachment to removal from office. Previous drafts had located the limitation on punishment in the judicial article, along with the grant of original impeachment jurisdiction. See id at 186-87.
91. See note 2 (noting the Senate's sole power to "try" impeachments).
92. Thus, in New York, the state constitution provided for superior court judges to sit with the Senate as a court to try impeachments, but made a special provision that any judge subject to impeachment was not to serve on the court of impeachments (or otherwise exercise judicial office) until after an acquittal. See NY Const of 1777 Art XXXII (superseded 1821), reprinted in 2 Poore's 1328, 1337 (cited in note 45). See also note 82.
93. See US Const Art II, § 2, cl 2. Under this provision, the Court has upheld the power of the federal courts to appoint inferior judicial officials and inferior officers of other branches of government. See Morrison v Olson, 487 US 654, 675-77 (1988) (upholding the power of Congress to assign to a court of law the power to appoint a special prosecutor, an executive branch official).
94. See Shartel, 28 Mich L Rev at 492 (cited in note 3).
95. See id at 882-83.
96. See id at 499-500.
97. See id at 488-90 ("[I]t is suggested that district and circuit judges be appointed by the Chief Justice of the United States with the approval of the Supreme Court. . . . The one point intended to be stressed is the need for judicial control over appointments to inferior judgeships.").
98. See id at 730-38, 882-91.
99. See id at 902 n 87, 907 (drawing on the separation of powers doctrine to question the power of one branch of government to remove officers in another branch without express constitutional authorization). See also Prakash and Smith, 116 Yale L J at 133 n 228 (cited in note 1) ("[In the procedures discussed,] [t]he President could not remove justices; only courts could do that. And such judicial removals could only occur after a fair trial on the question of whether judges had misbehaved.").
100. US Const Art I, § 5, cl 1.
101. The Court has ruled that this power of exclusion applies only where the house of Congress finds that the member lacks the requisite constitutional qualifications for office. See Powell v McCormack, 395 US 486, 522 (1969).
102. US Const Art I, § 5, cl 2.
103. See Burton v United States, 202 US 344, 366-69 (1906) (holding that members of the Senate may be prosecuted criminally and suggesting in dicta that they may be removed from office only through action of the Senate).
104. See Farrand, ed, 2 Records of the Federal Convention at 337, 367-68 (cited in note 62) (describing the appointment of a committee to recommend a mode to try the justices on impeachments and noting the committee's proposal for trial in the Senate). The framers' rejection of a role for the Court in adjudicating misconduct claims against the justices reflected the well-established maxim "no man can be the judge of his own cause."
105. See Dr Bonham's Case, 77 Eng Rep 646, 652 (CP 1610) (holding that a licensing body with a financial stake in the outcome of its decision could not decide whether or not a doctor had the right to practice medicine in London).
106. See also Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 Cornell L Rev 393, 403 & n 43 (1996) (citing Locke, Montesquieu, Harrington, Nedham, Sadler, and various secondary sources). The framers heartily endorsed this principle. See id at 413 & n 99 (discussing the importance of the rule of law as a justification for separation of powers and citing Madison and Wilson). Consider the representative view of Hamilton that "[n]o man ought certainly to be a judge in his own cause, or in any cause in . . . which he has the least interest or bias."
107. Federalist 80 (Hamilton), in The Federalist 534, 538 (cited in note 2). Indeed, the framers insisted on a relatively strict version of the separation of powers as to the federal judiciary (especially the Supreme Court). Thus, the framers rejected such institutions as a Council of Revision, a Privy Council, and a provision authorizing formal advisory opinions - all to shield Supreme Court justices from political involvement and possible bias.
108. See Pushaw, 81 Cornell L Rev at 431-32 & n 172 (citing Hamilton and Wilson). Likewise, judges could not simultaneously hold seats in Congress. Id at 419 n 124.
109. See Shartel, 28 Mich L Rev at 897 n 73 (cited in note 3) (agreeing that impeachment may be "the only available method for removing the President, the Vice-President and justices of the Supreme Court").
110. But see Prakash and Smith, 116 Yale L J at 128-33 (cited in note 1) ("[T]he Constitution enables Congress to grant judges the ability to remove their fellow judges in disciplinary proceedings.");
111. Shartel, 28 Mich L Rev at 897 n 73 (cited in note 3) ("[P]erhaps Congress could confer statutory authority on the Supreme Court as a whole to remove its own offending or disabled members.").
112. See US Const Art III, § 2.
113. 5 US (1 Cranch) 137 (1803).
114. See id at 176-79 (holding that Congress may not constitutionally expand the scope of the Court's original jurisdiction). For a general discussion, see Pfander, 101 Colum L Rev 1515 (cited in note 11) (defending Marshall's conclusion that Article III specifies and limits the scope of the Court's original jurisdiction).
115. Certain kinds of supervisory authority, including mandamus and habeas proceedings, may not implicate the Article III prohibition against an expansion of the Court's original jurisdiction, at least insofar as they focus on the review of inferior tribunals. See James E. Pfander, Jurisdiction-Stripping and the Supreme Court's Power to Supervise Inferior Tribunals, 78 Tex L Rev 1433, 1487-93 (2000). But one would have an extremely difficult time characterizing an original proceeding to forfeit judicial office as the kind of supervisory proceeding that seeks, within the meaning of the Court's precedents, to "revise and correct," Marbury, 5 US (1 Cranch) at 175, the decisions of an inferior tribunal. For an example of how to read "revision and correction," see Ex parte Bollman, 8 US (4 Cranch) 75, 99-101 (1807) (concluding that an "original" petition for habeas corpus might nonetheless be treated as an exercise of the Court's appellate jurisdiction to the extent that it sought to revise and correct the work of a lower court).
116. On the common law right to trial by jury in scire facias proceedings, see Shartel, 28 Mich L Rev at 891 n 59 (cited in note 3).
117. See Prakash and Smith, 116 Yale L J at 128-31 (cited in note 1) (suggesting criminal proceedings and civil forfeiture proceedings in the lower federal courts as eligible modes for removing federal judges). Federal criminal courts would clearly have jurisdiction to entertain criminal proceedings against a sitting Supreme Court justice. But the law has long been settled that such criminal proceedings differ from proceedings to oust a constitutional officer from office. Thus, a Senator may be subjected to criminal sanctions that have the effect of disabling him from service in the Senate but the criminal court may not impose the sanction of removal from the Senate. See note 81. Similarly, federal judges continue to draw their salary, even following a conviction and imprisonment, until they have been impeached and removed from office. See Nixon v United States, 506 US 224, 226 (1993) ("Because [federal district court judge] Nixon refused to resign from his office . . . he continued to collect his judicial salary while serving out his prison sentence.").
118. For accounts of the Madisonian compromise, see generally James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 Nw U L Rev 191 (2006) (contending that Congress may constitute inferior tribunals within the meaning of Article I of the Constitution by appointing state courts to hear matters within the federal judicial power);
119. Saikrishna Bangalore Prakash, Field Office Federalism, 79 Va L Rev 1957 (1993) (same). I am indebted to Bob Pushaw for raising this question.
120. 14 US (1 Wheat) 304 (1816).
121. See id at 305-06.
122. See generally, for example, Roger C. Cramton and Paul D. Carrington, eds, Reforming the Court: Term Limits for Supreme Court Justices (Carolina Academic 2006).