February 1989] Regulating Judicial Misconduct 775 scholars also contend that not all criminal conduct is impeachable. Ninth Circuit Judge J. Clifford Wallace, at a Senate Hearing on judicial discipline, recently suggested that not all crimes are considered so serious that they should mandate automatic forfeiture of office.49 For example, destruction of a mailbox is a federal felony.50 Similarly, adultery is a felony in some states. 51 Yet, it might be argued that these crimes are not of a magnitude to justify the disqualification of an otherwise competent judge. The foregoing comments may seem a bit tangential here, because of my original statement that the definition of "treason, bribery, and other high crimes and misdemeanors" is a matter solely for Congress. 52 Yet, the potential existence of a "hiatus" between impeachable behavior and conduct that is not "good behavior" has broad analytical repercussions upon a finding of "not good" behavior. If to "hold office during good behavior" under article III simply means that a judge is guaranteed life tenure so long as he or she avoids the commission of treason, bribery, or other high crimes and misdemeanors, then the hiatus does not exist, and the constitutional equation is fairly easy. Good behavior, as a constitutional matter, will be, tautologically, any conduct that will not support impeachment. But if "good behavior" is not the complete converse of "high crimes and misdemeanors," then a constitutional category of "not good" behavior must exist that is not subject to impeachment. If a judge cannot be impeached for this bad behavior, what kind of discipline may be used? Article III's "hold office" language could be read to instruct that a judge's continued tenure be contingent upon maintenance of “good” behavior. Syllogistically, a judge could be removed for bad behavior. Thus, one potential implication of the "hiatus" line of reasoning is that an alternative to impeachment must exist for removing a misbehaving $4500 fee from a former law partner which was nevertheless held not to be a bribe. Archbald had "corrupt alliances" with coal mine owners and railroad officials. New Hampshire District Judge John Pickering has also come to be seen as impeached and convicted for drunkenness and profanity on the bench, when in fact Congress wanted to oust a judge who had gone insane. See J. BORKIN, supra note 17, at 242-43; THE Federalist No. 79, at 529 n.1 (P. Ford ed. 1898) (editor's note). 49. See Hearings on S.J. Res. 364 and S.J. Res. 370 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 99th Cong., 2d Sess. 17 (1986), quoted in Note, supra note 46, at 451 n.175 (prepared statement of Judge J. Clifford Wallace). 50. 18 U.S.C. § 1705 (1982). 51. See, e.g., Idaho Code § 18-6601 (1987). 52. But see Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 FORDHAM L. Rev. 1, 57 (1970) (arguing that Congress does not retain the sole discretion to define impeachable offenses). 776 Michigan Law Review [Vol. 87:765 judge if Congress chooses not to impeach for mere bad behavior. 53 While there may be some merit in this version of the "hiatus" theory, I nevertheless side with those who believe that impeachment is an exclusive means to remove federal judges. 54 Federal judges are guaranteed life tenure to protect their independence. The cumbersome impeachment mechanism is an important weapon against political winds. It protects the independence of federal judges as surely as does the guarantee of life tenure. If an easier alternative were available for removing federal judges, that independence would be threatened. This need for judicial independence has apparently conquered competing concerns over time. No judge ever has been removed from office save through the formal impeachment process. Significantly, most congressional attempts to expedite removal have assumed that a constitutional amendment would be necessary first.55 This point is dramatized by the case of Judge Nixon, who has continued to draw his judicial salary while in prison; no one has suggested that there is any legal way to stop paying him unless he is impeached. Even the ambiguous constitutional text, with its two judicial tenure clauses, can be read to be consistent with this conclusion.56 If the good behavior clause actually "amplifies" the impeachment clause, "[e]ach borrow[ing] cogency and light from the other,"57 then the good behavior language may have been inserted to differentiate the standard for impeachment of judges from the standard for other civil officers. No other subset of the impeachable "civil officers" class is mentioned anywhere in the Constitution, perhaps because the terms of other civil officers are not constitutionally set. "Hold office during good behavior" may simply reinforce that "other officers shall hold their offices during a limited time, or according to the will of some 53. This "exclusivity of removal" question has long been debated in the literature. See supra note 41 and accompanying text. 54. As I said in Hastings I, 770 F.2d at 1107 (Edwards, J., concurring). 55. See Kurland, supra note 41, at 697; Note, supra note 46, at 431. 56. A more common structural argument derives from the maxim of statutory construction, expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). It is significant that the Constitution mentions only impeachment when the Framers had a number of other removal procedures available to them from English precedent. See, e.g., Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135. One of these, by application of Congress to the Executive, was debated and rejected, M. FARRAND, supra note 44, at 428-29, and others had fallen into a disuse that rendered them “fossil" rather than precedent. Ziskind, supra, at 138. The Convention also rejected trial of impeachment by the judiciary. See Feerick, supra note 52, at 15-23. This context supports the argument that, had alternative removal means been intended, they would have been mentioned. 57. W. BROWN, IMPEACHMENT A MONOGRAPh of the ImpEACHMENT OF the FedERAL JUDICIARY 10 (1914) (published as S. Doc. No. 358, 63d Cong., 2d Sess. (1914)). February 1989] Regulating Judicial Misconduct 777 person."58 Thus, while acknowledging the existence of "bad behavior," the "good behavior" clause gives Congress no additional removal power beyond impeachment. Of course, another line of reasoning doubts that this theoretical "hiatus" can actually exist in practice. In order to give rise to a “hiatus," "treason, bribery and high crimes and misdemeanors" must be interpreted literally to encompass a narrow class of bad acts; this approach reveals other bad acts that fall short of "treason, bribery and high crimes and misdemeanors," but for which some sort of sanction besides impeachment is appropriate. Examples of this could range from indecent personal habits inside or outside the courtroom, to substandard judicial performance, to mental or physical incapacity. But if "high crimes and misdemeanors" is defined more broadly, to encompass less grievous ethical infractions, then the gap between "not good" behavior and impeachable behavior disappears; they are merely two different ways of expressing the same type of conduct. Some scholars have embraced this alternative approach,59 pointing to several judicial impeachments that arguably were based on this broader definition of high crimes.60 They claim that, in fact, any "not good" behavior is impeachable, leaving a standard as expressed by then-Congressman Ford that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."61 Yet, despite these arguments, it is generally fair to say that “judges cannot be removed for political reasons or mere misbehavior, but only for the 'gravest cause.' "62 The undisputed fact that the Framers envisioned impeachment for "malconduct" to be a limited exception to the permanent tenure of judges makes it almost inconceivable that they designed the impeachment provision to be anything but a narrow stopgap against very serious abuses. Modern Congresses, no doubt mindful that the impeachment power ensures the accountability of the judges as well as their independence, have always wielded the responsibility with caution: no one ever has been impeached for less than serious 58. 1 ANNALS of Congress 482 (J. Gales ed. 1834) (remarks of Congressman Lawrence). Congressman Lawrence continued, “[I]f all persons are to hold their offices during good behaviour, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless." Id. 59. See, e.g., Yankwich, Impeachment of Civil Officers Under the Federal Constitution, 26 GEO. L.J. 849, 852-61 (1938). 60. Cf. ten Broek, supra note 48, at 193 (“By [Judge Archbald's impeachment] conviction the Senate approved the doctrine that the constitutional provision that judges shall hold their offices 'during good behavior' is attended with the corollary that they may be removed by impeachment for behavior which is not good."). 61. 116 CONG. REC. 11913 (1970). 62. Feerick, supra note 52, at 30. 778 Michigan Law Review [Vol. 87:765 malconduct. The cumbersome impeachment process itself has served to discourage its use for minor offenses. 63 Then-Congressman Ford's flippant statement asserts too much: in order to carry a majority of the House, any suggested standard for defining impeachable conduct must, as a political matter, find some support in the literal terms of the Constitution. Congress would not invoke the cumbersome impeachment process on a whim, without some defensible standard against which to judge an accused officeholder. The process requires too much of Congress' scarce time,64 thus ensuring that the House will be unlikely to pursue impeachment for less than very serious charges. History has thus left us with a rough consensus on two constitutional conclusions: first, that a constitutional hiatus between "bad behavior" and impeachable "high crimes and misdemeanors" exists, and, second, that impeachment is the only removal mechanism for federal judges. Even if the hiatus is not constitutionally derived, and “bad behavior” was intended to be coextensive with "high crimes and misdemeanors," there will nonetheless always remain a category of potential judicial misconduct for which Congress, as a practical matter, will not impeach. With this said, the problem reemerges: If a judge may not be removed for anything short of impeachable conduct, and only Congress may impeach, the bad behavior that does not alarm Congress must be dealt with through an alternative method. Of course, some truly exceptional misconduct draws adverse publicity, and a judge may be shamed into resigning before impeachment is even considered. Thus, in today's electronic age, the media itself can perform limited triage on miscreant judges. 65 However, the truly difficult question is what other official remedies exist, and who may execute them. B. Self-Regulation and Separation of Powers Let me make clear just what I mean by behavior or disability that is arguably unimpeachable but not "good." As with everything else in the law, there are easy cases and hard cases. The easy cases are immediately quantifiable and call into question the judge's impartiality, de 63. See Shenon, Impeachment of Judges: A "Cumbersome Tool," N.Y. Times, Apr. 2, 1986, at A16, col. 3; Nunn, Judicial Tenure, 54 CHI.-KENT L. REV. 29, 30 (1977) (impeachments take weeks of House and Senate time). 64. See Note, supra note 46, at 447. 65. I do not want to make too much of this point. I recognize that the impact of the media on public officials is a matter of some controversy. I only assert that a number of judges have been "publicized" out of office since the press became a potent force in American life. See, e.g., J. BORKIN, supra note 17, at 204; Battisti, An Independent Judiciary or an Evanescent Dream, 25 CASE W. RES. L. REV. 711, 743 (1975). February 1989] Regulating Judicial Misconduct 779 779 pendability, or capacity to conduct official business. Examples might include harassment or abuse of counsel or litigants in the courtroom; blatant case mismanagement; inability or unwillingness to handle a reasonable caseload; inadequate or sloppy work product due to lack of intelligence or effort; or a public political endorsement. The cases become more difficult to assess, either as "misconduct" or "disability," when the conduct or incapacity does not consistently and directly affect judicial business. Examples might include alcoholism; infirmity due to age or illness; offensive behavior towards colleagues; breach of confidentiality, such as leaking information to the press or political allies; or even offensive personal behavior such as aberrant sexual conduct off the bench that comes into the public spotlight. In this broad category of unimpeachable conduct and disability, especially with respect to the so-called "easy cases," I would submit that the ideal of judicial independence is not compromised when judges are monitored and even regulated by their peers. The principal limit to any system of judicial self-regulation is that it may not include any form of removal from office. This means that individual judges may not be sanctioned by their peers through discharge, imprisonment,66 or salary reduction.67 An argument also can be made that an individual judge may not have her judicial docket suspended by colleagues, for this, too, would amount to a form of removal from office. 68 But this argument sweeps too broadly because it would prevent a court from shifting case assignments to deal with situations in which a judge is either unable or unwilling to keep up with a reasonable caseload. Indeed, I believe that most members of the judiciary would readily agree that a court may temporarily remove a judge from the docket to allow or require him to catch up in his work. Obviously, any system of peer control will produce some questionable cases. Nonetheless, as a general proposition, judicial self-regulation is the logical constitutional remedy for compelling "good behavior," and it offers the best commonsense approach to maintain 66. See Catz, Removal of Federal Judges by Imprisonment, 18 RUTGERS L.J. 103, 115-16 (1986); Note, supra note 46, at 425, 457. But see Burbank, Alternative Career Resolution: An Essay on the Removal of Federal Judges, 76 KY. L.J. 643, 671-72 & n.130 (1987-1988) (the Framers meant only "the formal termination of a commission or of tenure in office" when they wrote "removal from office" in art. I, § 3, cl. 7). 67. Cf. Hastings I, 770 F.2d at 1110-11 (Edwards, J., concurring) (to interpret the Act to preclude government payment of defendant judges' legal fees effectively diminishes judicial salaries); Hastings II, 829 F.2d at 103 (same). 68. See Note, Unnecessary and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 94 Yale L.J. 1117, 1131-33 (1985); Chandler v. Judicial Council, 398 U.S. 74, 84 (1970) (there is a "line defining the maximum permissible [discipline] intervention consistent with the constitutional requirement of judicial independence"). |