November 6, 2017
The Constitution only allows federal judges to serve during “good behavior.” This “good behavior” limitation on judicial tenure derives from one of the oldest and most well-established legal principles of our founding and Englishlegal history. This limitation on appointed officials holding office pervades our founding revolutionary-era state constitutions. It’s time for Trump to consider activating the power of the political branches to fire badly behaving judges. Time to drain the judicial swamp.
Recent Obama appointees, including associates of Obama since law school, earned the enmity of a wide range of legal and scholastic critics over their travel ban rulings. How bad was it? Even #NeverTrumpers and liberal lawyers came out in a chorus of condemnation against the Hawaii and Maryland judicial actions. #NeverTrump lawyer David French, lawyers at National Review, and liberal-leaning law professor Jonathan Turley each criticized the decision. Liberal Democratic law professor Alan Dershowitz noted that the judges would have never done this to Obama, even if the executive order was identical. Anti-Trump critic David Frum of the Atlantic criticized the decision. Even five Ninth Circuit judges, sua sponte, amended their prior statements to criticize these judges’ actions as without precedent.
Why the unison of condemnation? Because, as one law professor noted, much of the Hawaii judge’s actions were based on judicial acts of “misleading.” That’s polite, diplomatic, I-might-be-in-front-of-that-judge-someday way of saying that some of these anti-Trump, anti-travel ban judges were not honest. If private lawyers had acted the way these judges did, they could be sanctioned and could lose their license and livelihoods, be thrown out of court, or even charged with a crime. That is why Judge Alex Kozinski authored two amendments to his prior dissent to specifically criticize the basis of the Hawaii judge’s ruling.
What can Trump or Congress do about it, if they believe these federal judges exceeded their authority and engaged in disreputable conduct?
The Constitution provides two restrictions on the tenure of a federal judge: first, if they misuse or abuse their office, then the Constitution, under Article II, section 4, authorizes Congressional quasi-criminal remedies of impeachment. The impeachment provision applies to the President “and all civil officers of the United States” whenever their conduct constitutes “treason, bribery, or other high crimes and misdemeanors.” Historically, the latter provision has been rejected forpurely private conduct. That is why both Alexander Hamilton and Richard Nixon were not impeached for either tax evasion or financial misdeeds, though both were accused of one or the other. Bill Clinton successfully argued against conviction on the grounds his perjury, though in office, derived from a purely personal matter, rather than a presidential one.
The Constitution provides a second, separate restriction on the tenure of a federal judge: Article III of the Constitution limits a judge’s tenure to continuous “good behavior.” This reinforces the democratic side of the Constitution: only elected officials can remove either elected or appointed officials. Congress clearly understood this as they passed a law in 1790 making federal judges automatically ineligible for continued service upon conviction of a crime. The “good behavior” limitation on appointed officials specifically states: “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” It does not say the judges shall hold their offices “during their lives” nor “unless removed by impeachment”; it says they keep their judicial powers only “during good behavior.”
One need not be a conservative or an originalist to see the Constitution this way: no less than two well-respected law professors argued the same interpretation in the Yale Law Journal. History also supports this interpretation. Language of “good behavior” limitation on office-holding pervaded the revolutionary era, and preceded it in English common law, which our founders adopted. The original latin phrase for good behavior tenure — “quamdiu se bene gesserit” — applied to a wide range of English officeholders.
The recommended manner of determining good behavior incorporates procedures akin to an administrative trial process, where each of the political branches plays a role — the executive in initiating investigation and prosecution, and the legislative in a jury-like function. As fellow scholars note: “under any reading of the Constitution, the political branches have the authority to investigate and sanction judges.” Judges actually do this to each other for ethical breaches, including removal from hearing cases. The problem is that the judiciary does a lousy job of policing its own. Time for Trump to drain the judicial swamp.
What defines “bad behavior”? The Code of Conduct for federal judges compel judges “uphold the integrity and independence of the judiciary,” “perform their duties fairly, impartially and diligently,” and “refrain from political activity.” This means a judge “should not be swayed by partisan interests.” The analogous ethical code for lawyers requires that they always disclose and deal with legal authority that is both precedent and disagrees with their opinion; judges frequently lecture lawyers about this ethical obligation. A private lawyer who merely misleads the court about controlling precedent or the factual record can be sanctioned, have his license to practice law restricted, or even be deprived of his occupational office permanently. A private citizen who lies in court, by either omission or commission, can lose the right to be in court, and even lose their liberty, due to applicable criminal punishments and penalties. Shouldn’t judges be held to the same standards they impose on private citizens and private lawyers? Wasn’t that why our Founders limited the term of a federal judge to “good behavior”?
For example, as law professor Josh Blackman noted, the Hawaii court’s order gave a chronology that was “misleading,” cited only “part” of the prior campaign comments of Trump and his surrogates, and engaged in other dubious acts of “fact finding.” In the law, the federal rules of evidence prohibit this kind of out-of-context quoting: Federal Rule of Evidence, Rule 106 requires a court consider all contextualizing documents, quotes, and comments to properly and fairly consider the entire statement. Equally, the Hawaii judge ignored precedent against his position, including on the legal authority on nationwide bans, the constitutional rights of aliens, and the Constitutional and Congressionally authorized rights of the President to control borders and keep the country safe, as the Ninth Circuit judges also noted. A lawyer or citizen who did this would be sanctioned. Why not a federal judge?
Imagine: Hawaii blocks fruit, vegetables, plants, and animals, but sharia-supporting imam family members are let right in, by judicial fiat. When’s the last time you heard a liberal say: “yeah, we’re taking our summer vacation with the kids this year in Somalia,” or “Syria these days is a great place for a honeymoon?” Long-standing, well-respected former Ninth Circuit chief judge Kosinski was so agitated by the decision, that he authored, with four other judges, a “rare” public condemnation through amending a prior court dissent on the subject. If a private person or lawyer had done what these anti-Trump judges did, they could be sanctioned, and could be subject to loss of their licensed occupation and even loss of their personal liberty.
These judges disrespected the rule of law they promised to protect. The Constitution says they can be fired. It is time to return the balance to the balance of power the Constitution always intended. Obama hired them; let Trump fire them.
By Robert Barnes.Politics