Cronan on Judges Removing Judges

Liam Edward Cronan, Boston University School of Law; Ropes & Gray LLP, has published Judges Removing Judges in volume 75 of the Cleveland State Law Review (2027). Here is the abstract.

This Article offers new historical evidence to a timely constitutional question: when, and how, can a federal judge be removed from office? Federal judges are widely assumed to hold office for life, removable only by impeachment. But a minority of sources have suggested that the historical meaning of "good behavior" under Article III of the U.S. Constitution, which was adopted directly from English law, permits removal by a far more obscure means: a civil trial brought by a writ of scire facias. This interpretation has been starkly criticized, however, based on the absence of any case in which an English judge was removed after the early eighteenth century, when the use of "good behavior" became widespread and statutes first authorized judicial removal by England's legislature. But the same cannot be said for judges in British-ruled Ireland. Not long after the ratification of Article III, a series of Irish judges who held office during good behavior under the authority of English law engaged in misconduct-from publishing libelous articles to embezzling court fees-and faced removal proceedings. By analyzing the long-neglected records of their removal proceedings, this Article reveals that existing debate over judicial removal has overlooked a significant body of historical evidence: statements preserved in the record of these removal proceedings, and corroborated by English legal treatises and American founding-era sources, suggest that many leading political and legal authorities of the time believed removal for misbehavior could be achieved by several means, including by trial. As federal judicial tenure continues to face challenges, this history carries significant practical stakes. It adds a new perspective to unresolved debates over the power of judicial removal, complicates the assumption that the words "good behavior," as adopted by the U.S. Constitution, limit removal to impeachment, and offers a deeper understanding of the protections and limits of federal judicial office.

Download the article from SSRN at the link.