In 2006, years before Christine Blasey Ford publicly accused Supreme Court nominee Brett Kavanaugh of attempting to rape her when they were both in high school, 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, 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.”
Prakash, a professor at the University of Virginia, is a former law clerk to Justice Clarence Thomas. Smith, a professor at the University of San Diego, is a frequent contributor to conservative and libertarian publications. So even if the paper did not precede the Kavanaugh hearings by more than a decade, it would be difficult to argue that it was published in order to lay the groundwork for a liberal victory over a conservative Supreme Court justice.
The paper, which was published in one of the legal academy’s most prestigious journals but has had little impact on public policy so far, could wind up becoming important if Democrats capture Congress and the White House in the 2020 election.
On Saturday, the New York Times published a report bolstering the allegations against Kavanaugh.
The Times says that its reporters “found Dr. Ford’s allegations credible during a 10-month investigation” and that “at least seven people” corroborated a second allegation, by Kavanaugh’s Yale classmate Deborah Ramirez, who says that Kavanaugh “pulled down his pants and thrust his penis at” Ramirez without her consent. He has denied both allegations.
The report also revealed new allegations that Kavanaugh allegedly attended a drunken dorm room party in college “where friends pushed his penis into the hand of a female student” — although this third story is attributed to an alleged eyewitness and “the female student declined to be interviewed and friends say she does not recall the episode.”
The Times report, adapted from the forthcoming book The Education of Brett Kavanaugh: An Investigation, sparked calls for Kavanaugh’s impeachment, including from at least four presidential candidates.
But impeachment is a paper tiger. To remove Kavanaugh via impeachment, two-thirds of the senators present for such a vote would need to vote against Kavanaugh. And the Senate is malapportioned in ways that favor Republicans — in the current Senate, Democrats represent about 15 million more people, but Republicans control 53 percent of the seats.
Barring a historic political realignment, in other words, there is virtually no chance that there will ever be 67 senators who will vote to remove Kavanaugh. But, if Prakash and Smith are right about the Constitution’s good behavior clause, there won’t necessarily have to be.
What is “good behavior?”
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.”
They quote future President John Adams, who said in a debate with a contemporary that a judge serving during good behavior may be removed after a “hearing and trial, and an opportunity to defend himself before a fuller board, knowing his accuser and accusation.” And, in what is probably their single most persuasive piece of evidence, they quote a 1790 act of Congress providing that judges convicted of taking bribes ”shall forever be disqualified to hold any office of honour, trust or profit under the United States,” even though no impeachment may have occurred.
Prakash and Smith conclude by suggesting acts of Congress that would allow judges to be removed without impeachment, including a law automatically removing judges upon their conviction for certain offenses, one creating a separate judicial process to remove judges accused of misconduct by the Justice Department, and another empowering an internal review board whereby federal judges police their own.
Would the courts let one of their own be removed without impeachment?
The two professors’ argument is, to say the least, not universally accepted by scholars. Indeed, in the same year that Prakash and Smith published their Yale Law Journal piece, the Journal also published a response by Northwestern law professor Martin Redish, which takes issue with their definition of good behavior.
In his piece, Redish warns of “the extremely problematic effect that [Prakash and Smith’s] proposed interpretation would have on the vital role that federal judicial independence necessarily plays in preserving the foundations of our political and constitutional structure.”
But Prakash and Smith also offer a sharp rebuttal to this critique: “Any removal procedure authorized by Congress would have to be conducted by a court with all the traditional judicial safeguards.” Judicial independence, in other words, would be protected by the fact that the judiciary would ultimately decide which judges are removed.
Such a process is hardly unheard of in the United States. Former Alabama Chief Justice Roy Moore, for example, was twice stripped of his judicial responsibilities by a special court that hears complaints against the state’s judges.
A different critique of Prakash and Smith — and one that I personally find persuasive, at least in the abstract — is that stability in the law is important. Whatever English courts may have done in the 17th century, or whatever Congress may have done in 1790, the seemingly unbroken practice of two centuries of American history is that judges may only be removed by impeachment. Does it really make sense to toss out such a settled norm because two clever law professors dug up some centuries-old legal documents?
In an 1826 letter, James Madison explained why, as president, he did not veto legislation chartering the Second Bank of the United States after arguing that the first such bank was unconstitutional. The first bank’s acceptance by public officials and by the American people, Madison wrote, constituted “a construction put on the Constitution by the Nation, which having made it had the supreme right to declare its meaning.” A similar logic could be applied to the norm against removing judges without impeachment.
But the era when public officials stay their hands simply because longstanding norms advise them to do so appears to have passed. Not too long ago, there was a norm providing that Supreme Court nominees receive confirmation hearings, or that Congress should not use the debt ceiling to extract policy concessions from the president, or that filibusters should be used only rarely.
The question for Democrats, in other words, is not whether norms of governance must be obeyed in the United States — clearly they are not. The question is whether Democrats want to tear down one more norm in order to remove a judge they view as uniquely odious.
Because the courts would need to acquiesce in any attempt to remove Kavanaugh without impeachment, it’s possible that any effort to do so would fail. Nevertheless, it is also possible to imagine a scenario where the judicial branch would decide that it is better to strip Kavanaugh of his office than to allow him to remain at the apex of the judiciary.
Suppose that prosecutors showed that a justice perjured himself at his confirmation hearing — a crime that is, admittedly, very difficult to prove — and he is sentenced to some amount of time in prison. If he can only be removed via the impeachment process, that would mean that he would still be a member of the Supreme Court even as he serves out his sentence.
How would basic Supreme Court functions, such as the conferences where all nine justices meet in a room to decide which cases to hear, continue to operate when one of those justices is behind bars? And once the justice gets out, would federal courts really want to endure the spectacle of such a man weighing the fate of other criminal defendants?
Congress could, in other words, pass a law similar to the 1790 law referenced in Prakash and Smith’s paper, which disqualifies federal judges who’ve been convicted of certain crimes that call into doubt their integrity as a judge. And if Congress decides to go this route, the two professors’ paper will give the Justice Department the arguments it needs to defend such a law in court.