The Good Behavior Clause and the Tenure of Judges

Justice Brett Kavanaugh, in the wake of sexual assault allegations against him, called the confirmation process “a national disgrace.”[1] Those words should be acerbic and jarring to legal scholars who view the Supreme Court as a cornerstone of low-profile stability in comparison to Congress and the executive. In all, Supreme Court justices have occupied a vaulted and legitimately respected chamber in recent years though that relative calm and peace has been disrupted by an overarching trend towards greater political polarization. In the wake of the latest Kavanaugh accusations, the question becomes: how politically immune are judges after nomination and confirmation?

This question is rarely discussed by legal scholars as the usage of the Good Behavior Clause and impeachment of justices are rare and singular respectively. The definitions of both “good behaviour” and “High crimes and misdemeanors” are also fairly ambiguous and subject to interpretation at the political whims of the time. Therefore, this topic has historically been difficult to argue or support academically. An effort will be made here to draw from historical precedent to ascertain a better understanding of requirements to impeach and remove a judge.

The Constitution, at first glance, seems to be quite frank. Article III, Section 1 states that, “The judges of both the supreme and inferior Courts, shall hold their offices during good Behaviour.” The unfortunate circumstance is that the term, “good Behaviour” is one of rare historical precedent, tenuously political interpretation, and ill-defined legality

The wording of the Good Behavior Clause stretches back to the Act of Settlement of 1701, in which English judges who originally served “at the pleasure of the King” were now subject “quamdiu se bene gesserint” or “during good behaviour” at the oversight of Parliament. No English judge during colonial times were removed under this new standard, despite evidence of wrongdoing in the form of misdemeanors[2]. Therefore, this newly set standard for judicial behavior established no precedent in actual practice before the Framers adopted the phrase for the Constitution.

At the Constitutional Convention, little was mentioned of the requirements to violate the Good Behavior Clause. However, the Framers made it clear in other contexts that the Good Behavior Clause sets a high mental and political standard for removal of a judge. Judges in the Founding Era were given latitude in their mental fitness for office, allowing for incompetency just short of insanity.[3] Furthermore, the independence of the judicial branch was at the foremost of concern when considering the potential meddling of the other branches.

When Thomas Jefferson wrote the new Virginia Constitution in 1776, he structured the removal of judges to be decided within the judicial branch, with no checks from others. Later in his life, he remarked that the provision made judges “Independent of the nation itself...irremovable...even by their own body for the imbecilities of dotage.”[4] The mental fitness of the judge bore little significance to the tenure of a judge, setting a precedent for judicial independence that far supersedes expectations we have of Supreme Court justices today. When asked if mental unfitness was a cause for removal of a judge, Representative James Jackson of Georgia responded, "Not for this cause, it is impossible; because madness is no treason, crime or misdemeanor.”[5]

Yet, some Founders believed that subjecting the tenure of judges to the political whims of other branches of government to be dangerous. James Wilson once remarked, “The judges would be in a bad situation if made to depend on every gust of faction which may prevail in the two branches of our Government.” This situation naturally applies itself to impeachment, which is a politically, not legally, defined process[6]. There are certain standards, such as obstruction of justice or bribery, that can be applied. But take the impeachment of Justice Samuel Chase, whose federalist tendencies displeased newly-elected President Thomas Jefferson since Jefferson feared the power of independence of the courts. Chase’s opponents failed to obtain the two-thirds majority needed in the Senate to convict, thereby setting a precedent for judicial independence based on political tactics[7]. Chase’s impeachment, however, does not mean this process is impossible.

Now apply these standards to the current Kavanaugh case. It is clear that Kavanaugh is mentally fit to serve, as former Justice Anthony Kennedy described his former law clerk as “brilliant”. It is clear the Good Behavior Clause was not intended to be used as a political tool to remove justices. However, the politically-charged impeachment process would be the only viable avenue for Democrats to pursue removal.

Since Kavanaugh has already been confirmed to the bench, his actions during the confirmation process and as a justice are now the business of Congresspeople willing to remove him. Instead of focusing on “good behavior”, the only reason to look into the matter is if Kavanaugh lied under oath, thereby obstructing justice, during his testimony. Even if he is found plausibly guilty of lying, impeachment is still not guaranteed. The offenses associated with “High crimes and misdemeanors” is quite ambiguous and only need to be as severe to politically motivate removal proceedings through Congress. Clearly the Framers held judges to a different standard of independence from the comings and goings of the political sphere than other officials. There is no binary answer that the Framers can provide on Kavanaugh, but rather those wishing to impeach must be willing to garner sufficient political attention to move forward, which is unlikely in the current political climate.

[1]Alexander Bolton, "Kavanaugh Calls Confirmation Process a 'national disgrace,'" The Hill, last modified September 27, 2018.  

[2]Walter F. Pratt, Judicial Disability and the Good Behavior Clause, (New Haven: Yale Law Journal), 706-720.

[3]Ibid.

[4]Thomas Jefferson. Letter, "Papers of Thomas Jefferson," 1829.

[5]Jonathan Elliot, The Debates of the Several State Conventions, 1836.

[6]The Works of James Wilson, edited by Robert Green McCloskey, 2 vols, Cambridge: Belknap Press of Harvard University Press, 1967. 

[7]Federal Judicial Center, "Samuel Chase Impeached," Federal Judicial Center.