October 09, 2006
Judges in the federal courts hold office, the Constitution tells us, "during good Behaviour". The conventional wisdom is that this means that they can be removed from the bench only if they are impeached for high crimes and misdemeanors. This turns out to be probably wrong. Sai Prakash and Steve Smith argue in the first issue of Volume 116 of the Yale Law Journal that judges can in fact be removed any time that they misbehave, that misbehavior can be defined by statute and adjudicated in ordinary trials in the federal courts, and that impeachment is not the only way to remove a mishebaving judge.
Their Article, How To Remove a Federal Judge, is available now on the law journal's website. So is Martin Redish's response, arguing that Prakash and Smith fail to heed the deep structure of the Constitution. Prakash and Smith then reply to Redish.
I assume most readers will be skeptical of Prakash and Smith's point at first-- a sensible instinct when somebody challenges 200 years of received wisdom. But I think their argument is fairly persuasive. Once you understand that "good Behavour" was a welll-understood term of art when the Constitution was written, and that good-behavior tenure could be (and was) granted not only to government offficers but to private employees, or even to land grants, it seems eminently logical to think that there must be some means of adjudicating misbehavor other than impeachment. And if impeachment isn't the exclusive means of judging misbehavior for file clerks, pastors, or professors, why should it be the exclusive means of judging misbeavior for federal judges? After all, almost nobody thinks impeachment is the exclusive means of removing executive officers, but other than the good-behaviour clause, nothing in the Constitution suggests that their tenures should be treated any differently.
Anyway, it's worth reading the whole thing. [Full Disclosure: I worked to edit the piece after it was accepted at the Yale Law Journal.]
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Via Orin Kerr and a Friend of Crescat, I saw the website "Project Posner," which is an easy-to-navigate database of all of Judge Posner's opinions. Obviously this is not terribly useful to those with a fixed-rate LEXIS contract, but it's still quite nifty. Of course, I say this as somebody who both spent quite a bit of time working for the Judge in his academic capacity at Chicago, and as somebody who learned contracts and torts largely by printing out all of the opinions of Posner (and Judge Easterbrook) that I could find on the topic and skipping the material in the casebooks.
Anyway, it's hard to resist the urge to re-read a few classics. E.g., Posner's defense of the First Amendment freedom to transmit and play violent video games in American Amusement Machine Association v. Kendrick:
Take once again "The House of the Dead." The player is armed with a gun—most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player's duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.
Self-defense, protection of others, dread of the "undead," fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young. "The House of the Dead" is not distinguished literature. Neither, perhaps, is "The Night of the Living Dead," George A. Romero's famous zombie movie that was doubtless the inspiration for "The House of the Dead." Some games, such as "Dungeons and Dragons," have achieved cult status; although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons. We are in the world of kids' popular culture. But it is not lightly to be suppressed.
[Unfortunately, Judge Posner's concurrences and dissents do not appear to be in the database.]
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