It's not as sexy as waterboarding, but the decrepit state of our courts is a lot more important to the average Kossack (especially, those of us with FBI files), as it is more likely to hit you where you live. Moreover, as John Dean observed in Broken Government, the judiciary has suffered the greatest and most lasting damage from the neo-conservatives' onslaught.
I have despaired as to what to do about it, because federal judges (a) have lifetime appointments, (b) never seem to resign, and (c) are getting a 29% pay raise over their already-bloated salaries. But in my research on an unrelated matter, I stumbled upon an innovative solution.
Technically, our judges don't have lifetime sinecures. What they have is a freehold in office conditioned upon "good Behaviour." U.S. Const. Art. III, § 1. We have a Republican-appointed judge in town who has engaged in some spectacularly bad behavior as of late, but judges are never held to account for it. There is a distinct possibility that that may be about to change.
Most of us were taught back in law school that federal judges' behavior was supposed to be policed by Congress, but they are too busy raising contributions and naming post offices to impeach a deserving President, to say nothing of dealing with bad judges. But our Constitution gave us an effective way to combat judicial intransigence, even if Congress won't.
At least in theory, any citizen who has been injured due to the willful misconduct of a federal judge can petition a court to have that judge removed from his position, by claiming that s/he has violated his or her good behavior tenure, through that court's issuance of a writ of scire facias (for the layman, it is a "show cause" order). I say "in theory" because, quite frankly, to the best of my knowledge, this hasn't been tried in my lifetime. But as the foundation for it has been presented by one of America's premier constitutional scholars (Saikrishna Prakash), it is at least worth exploring.
The Problem: Federal Judges Think They Are Gods
Our Founding Fathers understood instinctively what British historian Lord Acton expressed so eloquently: "Power corrupts, [and] absolute power corrupts absolutely." History teaches us that one's morality is directly inverse to one's power in society, and when power is concentrated in a few hands, men with the mentality of gangsters invariably take control. They begin to see themselves as "above the law" ... for in fact, they are.
Having had the benefit of experience, Thomas Jefferson perceived that the Constitution suffered from a fatal flaw: our judiciary was not only independent, but essentially unaccountable to the people they served. He wrote, "The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will."Thomas Jefferson, Letter (to John Wayles Eppes), 1807. Both naturally and inexorably, our judges have usurped authority far beyond our founders' deepest fears, and have become a law unto themselves. In his 1998 book on unbridled arrogance and corruption on the American bench, Los Angeles Times columnist Max Boot [can you think of a better name for an editor of the Weekly Double-Standard] coined the term "gavelitis":
A judicial selection process that often results in bumbling candidates being chosen. A judicial oversight process that rarely punishes judges for even flagrant misconduct on the bench. Put those together, and what do you get? A breeding ground for a disease I call "gavelitis."
This dread disease can be caused by wielding a gavel in the line of duty, and its symptoms include advanced pomposity, pathological sanctimoniousness, congenital self-importance, and aggravated eccentricity. Judges suffer from this disease grow so arrogant, so out of touch, so remote from everyday life that they think the normal rules of good behavior and human decency don't apply to them.
Its not hard to understand how judges can fall prey to this malady. After all, when you wear a black robe, everyone--staff, litigants, even haughty maitre d's-- bows and scrapes and genuflects before you. All your witticisms are suddenly hilarious, all your observations astute, all your suggestions readily adopted. Your fellow man invariably addresses you as "Your Honor" or "Judge." Nobody's ever mean to you and if they are, why, you can lock them up.
You think, How unusual ... How wonderful ... How fitting. That kind of obsequiousness is heady stuff in our rude, egalitarian society.
Max Boot, Out of Order: Arrogance, Corruption, and Incompetence On the Bench (New York: Basic Books, 1998) at 25-26.
"Gavelitis" is a predictable species of sociopathic behavior. As psychologist Hervey Cleckley observed, the sociopath knows right from wrong, but is unable to conform his behavior to societal norms. While judges might be able to do so, they have no incentive to. They become intoxicated by power, and invariably crave more of it. And the power they claim, they stole from you. As Jefferson sadly laments, "Experience, however, soon showed [that the judiciary was] to become the most dangerous [branch of government, for] the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office." Thomas Jefferson, Letter (to Admantios Coray), 1823.
When a judge obtains this kind of power, it isn't a matter of if he or she will abuse it, but when. And when it does happen, and if I'm right, their ass is grass and you're a lawnmower.
Historical Foundation of the Writ of Scire Facias
Although most agents of the Crown served "at the pleasure of the King," public officials were often given a freehold in their offices. See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer). Lesser lords were also given the authority to bestow freeholds, which created an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security. See e.g., Harcourt v. Fox, 1 Show. 426 (K.B. 1692) (clerk of the peace). Without some kind of effective controls upon their conduct, this would engender intolerable injustice, as the King’s ministers would be free to vent their spleen upon defenseless subjects with impunity.
Under England’s constitutional framework, the King ‘could do no wrong’ as a matter of definition, but his ministers could. Accordingly, English law offered a vast array of remedies for the citizen injured as a result of their wrongful conduct. Blackstone explains:
THAT the king can do no wrong, is a necessary and fundamental principle of the English constitution: meaning only, as has formerly been observed, that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king; nor is he, but his ministers, accountable for it to the people: and, secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. Whenever therefore it happens, that, by misinformation or inadvertence, the crown hath been induced to invade the private rights of any of it's subject, though no action will lie against the sovereign, (for who shall command the king?) yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as it perfumes that to know of an injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king's own name, his orders to his judges to do justice to the party aggrieved.
3 Blackstone, Commentaries 254-55.
Originally, English judges served at the pleasure of the King. This system created self-evident problems of its own, as a judge whose continuance in a lucrative office depended on the pleasure of the King would be disinclined to incur his wrath by ruling against him. The Act of Settlement of 1701 remedied this situation, by granting English judges life tenure quamdiu se bene gesserint (conditioned on good behavior) and establishing fixed salaries.
At common law, good behavior tenure of public officeholders was enforced by the sovereign through the writ of scire facias. But as this power concerned only the interests of his subjects, and as the king exercised it only in parens patriae, he was bound by law to allow the use of it to any subject inter- ested. Blackstone explains:
WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias.
3 Blackstone, Commentaries 260-61. Our own Supreme Court elaborates:
Charters and patents authenticating grants of personal privileges were in the earlier days of the English government made by the crown. They were supposed to emanate directly from the king, and were not issued under any authority given by acts of parliament, nor were they regulated by any statutes. Being, therefore, in their origin an exercise of his personal prerogative, the power of revoking them, so far as they could be revoked at all, was in the king, and was exercised by him as a personal privilege. This mode of revoking patents, however, seems to have fallen into disuse, and the same end was attained by the issue of writs of scire facias in the name of the king, to show cause why the patents should not be repealed or revoked. These were, of course, returnable into some court, and it appears to have been the practice to do this in the court of king's bench, or in the court of chancery, where the record of the patent always remained in what was called the 'Petty Bag Office.'
United States v. American Bell Tel. Co., 128 U.S. 315, 360 (1888).
The writ of scire facias was a formidable deterrent in the hands of the public: If a minister of the Crown knew that he would lose his lucrative sinecure if he ‘vented his spleen’ on one of the subjects he was charged with serving, he would be far less likely to indulge his darker impulses.
Importation Into American Law
The experience of the Framers with the colonial judiciary had not been a happy one. Prior to the Glorious Revolution of 1688, English judges had been "lions under the throne," creatures of the King. The Act of Settlement of 1701 had remedied this situation in England by granting English judges life tenure and undiminishable compensation. But the Act had no effect in the colonies. In their lack of independence from the Executive, the colonial judiciaries remained similar to those of the England of Charles I. Courts were constituted by the colonial governors under authority of the crown. Any attempt by the governors or the colonial assemblies to free judges from royal control was rapidly quashed. Colonial history is replete with examples of royal abuse of judicial power. Judges who did not follow the wishes of the King or royal governor were summarily discharged.
United States v. Woodley, 726 F.2d 1328, 1983.C09.40056, ¶ 28 (9th Cir. 1983) (citations omitted).
In creating the federal judiciary, the Framers could have made it wholly dependent upon the control of the legislative and/or executive branches, but given that a dependent judiciary was one of the justifications for the American Revolution, Declaration of Independence (U.S. 1776), ¶ 11, it would be difficult to justify. Similarly, the Framers could have given judges an unlimited franchise, subject to the sole condition that they not commit high crimes or misdemeanors, but that would also be problematic, as "[o]ne hundred seventy-three despots would be as oppressive as one." The Federalist No. 48 (James Madison) (quoting Thomas Jefferson, Notes on the State of Virginia). The solution they chose is to grant judges good behavior tenure, internalizing the lessons learned from the often-harsh experience of England. See generally, Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72 (2006) at 92-102.
This, of course, begs the question of who has authority to enforce good behavior tenure. The Constitution is built on the foundation of agency; our public servants only possess the powers we have entrusted to them. As Alexander Hamilton explains:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
The Federalist No. 78 (Alexander Hamilton).
"All the officers of the government, from the highest to the lowest, are creatures of the law," United States v. Lee, 106 U.S. 196, 220 (1882), and thus, can only act within the bounds of their agency. Congress can only do what the Constitution empowers it to do, and Article I only gives it the power to conduct impeachments. U.S. Const. art. I, § 2, cl. 5; § 3, cl. 6. The President has no authority over judicial discipline whatsoever. See id. art. II. Nor can it be credibly said that the ‘good behavior clause’ is a mere legal nullity. Marbury v. Madison, 5 U.S. 137, 174 (1803) ("It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it."). Hence, by default, the power to effect the ouster of a judge for violation of good behavior tenure is left in the hands of the individual citizen. This view is consistent with the overall goal of the Framers: attainment of an effective separation of powers. It gives judges "maximum freedom from possible coercion or influence by the executive or legislative branches of the Government," United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955), while providing reasonably effective punishment for judicial misconduct. As Prakash and Smith observe,
the value of judicial independence was qualified by, and was to an extent in conflict with, the need to ensure that judges behaved responsibly and to hold accountable judges who fell short of that requirement. So judges needed to be independent, to be sure—but not too independent. The Framers sought to strike a balance between these competing values by giving judges life tenure, subject to removal for violations of the good-behavior proviso, and also (as with all other civil officers) to impeachment.
Prakash at 88.
1. Violations of Good Behavior Tenure Are Not Necessarily Impeachable Offenses
First, it is well-established from English precedents that violations of good behavior tenure are not necessarily acts of "Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II, § 4. For instance, a jailer "might forfeit his office for negligently allowing escapes, and a recorder might forfeit his office for failure to attend sessions of a corporation." David R. Stras and Ryan W. Scott, Retaining Life Tenure: The Case For a Golden Parachute, 83. Wash.U. L.Q. 1397, 1407 (2005). Sir Edward Coke listed three grounds for forfeiture: abuse of office, nonuse of office, and refusal to exercise an office. Prakash at 90. Blackstone added that "the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king's bench." 4 Blackstone, Commentaries 140-41. While abuse of office can easily rise to the level of an impeachable offense (e.g., soliciting bribes from litigants), most offenses contemplated under the good behavior clause don’t approach that threshold. A simple hypothetical -- conflating actual incidents in Colorado courts -- illustrates this point.
Let us say that, for whatever reason, Judge Good harbored a secret grudge toward the Diamond Cabaret, and the corporation files a tax lawsuit that ends up in his court. And let us also say that, while his was otherwise the most efficient docket in the land, he decides to ignore the case. Has he committed a "high crime"? Of course not! A "misdemeanor"? Not even close. No judge in the history of our Republic has ever been impeached for non-criminal behavior in a single case. See, H.R. 916: Impeaching Manuel Real, a Judge of the District Court for the Central District of California for High Crimes and Misdemeanors, Hearings Before the House Judiciary Committee, September 21, 2006 (prepared testimony of Prof. Charles Geyh)(historical background). Would it be grounds for discipline? Perhaps, but the system of judicial discipline in federal courts is so feckless as to not constitute a meaningful deterrent.
In the shire of Nottingham in 1758, a lowly citizen could issue a writ of scire facias to Judge Good in the name of the King, requiring him to give an account of himself in a court of law. But in the court of Republican Chief Judge Nottingham in 2008, without the benefit of the writ, the proprietors of the Cabaret are bereft of remedy. To be shut out of court is to be deprived of every right appurtenant to citizenship, intolerable in a nation that presumes to be governed by the rule of law. As such, it would follow that the Constitution permits Judge Good’s hypothetical victims to proceed against him and remove him from his office for willful refusal to exercise that office.
2. The Framers Understood the Difference Between Violations of Good Behavior Tenure and Impeachable Offenses.
Prakash and Smith did the heavy lifting for us, from chronicling the struggle between Parliament and the Stuart kings that resulted in modern-day judicial independence to combing through Colonial constitutions in an attempt to comprehend the Framers’ understanding of good behavior tenure. Distilled to essentials, they found that the Framers understood impeachment (and/or the removal of judges by the legislative branch, such as the power retained by Parliament in England under the Settlement Act) and removal for violations of good behavior tenure to be two very different processes. Judges were understood to have property interests in their offices, which could not be taken away from them without due process; Maryland, Delaware, and Virginia were cited as examples. Prakash at 102-08. In summation, they note that
these materials reveal that good-behavior tenure was invariably equated with removable for misbehavior. Misbehavior apparently consisted of "injustice, corruption, or other misdemeanors in an office" and also encompassed any act inconsistent with the office or abuse and nonuse of the office, as Coke declared. Most importantly for our purposes, all agreed that misbehavior could be determined only by a judicial process. Normally, a grant of good-behavior tenure would be determinable only by the courts. Hence, when the Crown or Parliament granted tenure during good behavior to judges, that tenure could be terminated via a judicial finding of misbehavior. Nonetheless, authority to determine misbehavior might be granted to non-judges. In these circumstances, these non-judges had to conduct themselves as judges. They would have to conduct a fair, trial-like proceeding, in which the plaintiff would have to prove misbehavior and in which the defendant would have a chance to defend himself.
Id. at 108.
The survey by Prakash and Smith reveals that none of the original Colonies forbade the use of the writ of scire facias by an individual to remove a misbehaving judge from office. Id. at 108-114. Some juris- dictions (Georgia, Maryland, South Carolina, the Northwest Territory) bestowed good behavior tenure on judges without even having a provision for impeachment. Id. at 112-13. Finally, Prakash and Smith use Thomas Jefferson’s 1783 Proposed Constitution for Virginia as a template for what a constitution would look like, if it intended to ban the use of the writ of scire facias as a means of dispossessing judges of their freehold:
Jefferson’s Proposed Constitution provides a template for the way a constitution ought to read if its drafters meant to enshrine impeachment as the sole means of judging misbehavior. First, a constitution had to permit impeachment for misbehavior. Jefferson’s Proposed Constitution easily satisfied this condition because he made superior court judges (and others) expressly subject to removal for misbehavior via impeachment. Second, and crucially, Jefferson provided that the impeachment court would be the exclusive means of judging whether superior court judges had misbehaved. Without such language, no one would have concluded that impeachment was the sole means of judging alleged misbehavior.
Id. at 116-17.
How Such a Procedure Would Work
The actual mechanics of such an action would be remarkably straightforward. An aggrieved citizen would file a motion with this Court, styled United States ex rel. Litigant v. Judge, making pertinent allegations and petitioning for issuance of a writ of scire facias. In most cases, the Court would be formally asked to take judicial notice of salient facts, as the acts complained of are most likely acts done under color of law and an indelible part of the public record. The writ would then be issued upon a proper showing of salient facts. If Colonial and English precedent is a reliable guide, a jury would then be impaneled to decide the question of whether the judge violated his or her public duty.
While the "good Behaviour" standard might seem "due process"-class murky at first glance, judicial misconduct is well-defined. Judicial Councils of the various circuits have been charged with the task of disciplining judges who engage in "conduct prejudicial to the effective and expeditious administration of the business of the courts." 28 U.S.C. § 351(a). As Judge Alex Kozinski notes, a truly indefensible judicial decision constitutes sanctionable misconduct:
Judicial action taken without any arguable legal basis ... is far worse than simple error or abuse of discretion; it's an abuse of judicial power that is "prejudicial to the effective and expeditious administration of the business of the courts." See 28 U.S.C. § 351 (a); Shaman, Lubet & Alfini, supra. § 2.02, at 37 ("Serious legal error is more likely to amount to misconduct than a minor mistake. The sort of evaluation that measures the seriousness of legal error is admittedly somewhat subjective, but the courts seem to agree that legal error is egregious when judges deny individuals their basic or fundamental procedural rights."); In re Quirk, 705 So. 2d 172, 178 (La. 1997) ("A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct." (citing Jeffrey M. Shaman, Judicial Ethics. 2 Geo. J. Legal Ethics 1, 9 (1988))).
In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1185 (9th Cir. 2005) (Kozinski, J., dissenting; emphasis added).
States with functional systems of judicial discipline, such as California, purport to discipline judges for indefensible decisions:
A judge's error in a decision or ruling -- by itself -- is not misconduct. ... The California Supreme Court has determined that a judge who commits legal error is subject to investigation and possible discipline only if the legal error clearly and convincingly reflects in addition bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duties.
State of California Comm'n on Judicial Performance, How To File a Complaint (emphasis in original).
The ‘clear and convincing evidence’ standard is the apparent gold standard here, which makes intuitive sense: You don’t want the bar to be set too low (as it will interfere unduly with judicial independence) or too high (as it will interfere unduly with accountability). Further, the echoes of good behavior tenure resonate quite soundly in the bar set in judicial discipline cases. As judges are on notice as to what conduct could expose them to judicial discipline, they are also on notice as to what acts might cost them their sinecures. There appear to be no procedural or substantive due process problems with enforcement, as every federal judge knows that continuation in his or her position is dependent upon maintenance of good behavior.
Where I disagree with Prof. Prakash and Smith has to do with the matter of whether Congress needs to pass a law to empower us to invoke this right as private attorneys general (they never explained why this would be necessary, and though I have written them, profs are notorious for not responding to enquiries). It seems on the face of it that this would be a federal question (whether a federal judge has violated his tenure) already, and jurisdiction already exists under 28 U.S.C. § 1331; the court has power to issue such a writ under the All-Writs Act (28 U.S.C. § 1651). In the alternative, if an actual statute is needed, there are people in this audience who are either in a position to do something about this or know people who are.
I just wanted to throw this idea out, and see what everyone thought.