More bull shit from the humorously named “Center for Public Integrity”

Using inaccurate and incendiary language, like “Federal judges plead guilty” and “Juris imprudence: Litigants reeling after judges admit conflicts of interest,”  here is more bullshit from the Center for Public Integrity on federal judicial ethics.  As I have said before, those folks wouldn’t know a thing about judicial ethics if it bit them in the ass. This time around the Center investigated whether federal appellate judges decided cases in which they may have owned equity interests in a party. They found a few.

To be precise, they found “0.02 percent of the 109,000 total cases decided in the U.S. Courts of Appeals over the last three years” involved such a problem. If anything, this analysis proves that the present system of conflict checking for financial interests in a party is about as close to perfection as a human can design. Clearly, the Center looks for any little error in an effort to drive judges out of the stock market altogether. Since I don’t own stocks, I don’t give a damn. That’s my choice, but this bunch is not going to dictate to me what investments I own.

RGK

 

34 responses

  1. Judge Kopf, can you imagine what would happen if the Center let ME loose?

    RGK: “As I have said before, those folks wouldn’t know a thing about judicial ethics if it bit them in the ass.

    I could say pretty much the same thing about federal judges. I mean, how many federal judges know that it is a violation of the Due Process Clause for a judge to sit in judgment of his or her own tort case, that to do so is a crime, 18 U.S.C. §§ 241-42, and that to aid and abet that crime means accepting criminal liability, e.g., 18 U.S.C. § 3? So, why do they choose to aid and abet the crimes of their colleagues, if they are so knowledgeable about judicial ethics?

    Amusingly, I can’t even get a sitting judge to denounce what offends even Russian jurisprudence under Putin. “Judicial ethics” is, therefore, by any objective metric, an oxymoron.

    The most serious violations of judicial ethics are what can be called violations of “Standing Bear integrity”: willful failure to follow binding precedent without cause. The paradigmatic example of unethical judicial conduct was the one admitted by former Judge Nancy Gertner on this blog, as she related that she was trained on how to get rid of a certain class of case. Assuming that she told us the truth, the judges of her District were engaged in a conspiracy against rights (which is a federal felony) and in failing to take appropriate action (assuming that she did nothing, which was implied by her admission), she committed a misprision. 18 U.S.C. § 4. Hey, if it was good enough for Michael Fortier, it certainly should have been good enough for her.

    Judge Nancy “Mike McQueary” Gertner doesn’t get a lot of brownie points for admitting it twenty-plus years after the fact, as it is cold comfort for the victims. (And if Judge Kane of my District is reading this, I am also calling you out in re: the Washington Post article).

    My solution for judicial racketeering–which is Greylord-class rampant in our federal courts–is a special “Good Behavior Court,” designed to enforce the Article III, Section 1 condition on the judicial sinecure. Since judges will invariably circle the wagons around their colleagues, a trial attorney selected at random should serve as the judge of such a tribunal, and jurors should be charged with deciding the judge’s fate. Safeguards would include an indictment process, where it must be shown that it is more likely than not that the acts in question were not made in good faith, and that they actually resulted in harm.

    In many cases, willfulness may be inferred from the judicial act itself. As Chief Judge Alex Kozinski of the Ninth Circuit notes:

    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).

    The appropriate penalty is as just now as it was in the days of King Hammurabi. If damages were incurred, the judge should pay twelve times the amount, but that would be decided in a civil case. As judicial misconduct is by definition a violation of a judge’s good behavior tenure, s/he should be removed from both bench and Bar, and suspended upon indictment.

  2. From the CPI article:

    The Center’s findings point to a larger issue of accountability—or lack thereof—in the federal court system. Judges face no formal punishment for breaking these rules.

    The Center for Public Integrity got this part dead, solid perfect. The Constitution has remedies built in–e.g., mandatory cert, resulting in a written opinion standing as the law of the land–but our hopelessly corrupt judges would rather gnaw their arms off than actually enforce those remedies. Without mandatory cert, appellate courts have devolved into a law unto themselves.

    What is the solution? At the risk of being facetious, I would have no problem with Scalia getting the Cambyses treatment, as his son is of the right age and could ascend to SCOTUS in his place, having to sit in a chair made of his father’s tanned hide. King Alfred the Great executed forty-four judges–essentially, about half of his bench. Or then, there is the “biblically-approved” approach, where the judge’s first-born child is killed as punishment for his or her obstinacy. Or we could go with the Cicero-approved[1] Shylock approach–where the victim is allowed to take vengeance on the judge on his or her own.

    Seriously, what IS the solution??? Again from the CPI article: “’Come on guys, this is your obligation,’ said Youngblood. ‘You tell us all the time about ignorance being no excuse.’”

    [1] Cicero asserted that it was “morally right to kill” tyrants, as they are “monsters … in human form [who] should be cut off from … the common body of humanity.” 3 Marcus Tullius Cicero, De Officiis, 299 (T. Page and W. Rouse, ed., W. Miller, trans., 1921) (44 B.C.E.).

  3. I, for one, celebrate when the least politically accountable branch is held to account for its sins in ‘some’ form or fashion, no matter how minimal. It is always good for democracy and the health of the judiciary when information like this comes to light.

  4. I think the term should be “juris impudence.” American judges are, in general, utterly contemptuous of the law they administer. This is what happens when you give anyone power without accountability.

  5. The Center for Public Integrity’s story strains out gnats while swallowing a camel:

    Seated in a comfortable chair on a stage at the University of Florida recently, Stevens betrayed no sign that he is preparing to retire, remarking only that if the court had maintained the same heavy caseload today it had when he became a justice in 1975, “I would have resigned 10 years ago.”

    Justice Stevens Shows No Signs Of Quitting, Associated Press, Nov. 29, 2008.

    A seat on the United States Supreme Court is the best part-time job in the world. Problem is, we pay them full-time wages, and expect them to get their job done. We don’t mind if the cop on the beat moonlights as a security guard, but if he spends so much time at it that he ends up sleeping in his squad car on our dime, it’s a problem. And by his own admission, Clarence Thomas really ought to know better:

    “Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a proliferation of rights . . . I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

    Adam Liptak, Reticent Justice Opens Up to a Group of Students, N.Y. Times, Apr. 13, 2009.

    Thomas seems to have forgotten that with the grant of the Article III judicial power comes certain obligations and responsibilities. But then again, when you edit out the orgiastic stream of self-serving statements spewed in his comical act of literary masturbation, you uncover the real Clarence Thomas—a man so hopelessly self-absorbed that even doing his job was a colossal imposition:

    In the course of writing this book, I spent far too many solitary hours facing blank pages, digging through dusty boxes full of half-forgotten files, and plowing up long-untilled parts of my past.

    Clarence Thomas, My Grandfather’s Son ix (HarperCollins, 2007) (emphasis added).

    All I have ever asked of Emperor Thomas—or for that matter, his fellow despots on the federal bench—is that he take a few minutes from his crushing schedule of pimping his execrable book, giving interviews, and rubbing elbows with the Queen, Queen Elizabeth II Opens New UK Supreme Court, Assoc. Press, Oct. 17, 2009, to do his goddamned job! That anencephalic oaf swore out an oath to “administer justice without respect to persons … [and] faithfully and impartially discharge and perform all the duties incumbent upon me,” 28 U.S.C. § 453 (emphasis added), not just those he feels like doing. At least, he should be sufficiently courteous to spare us the pomposity and whining.

    Thomas has found the position of “house Negro”[1] for Texas-based developer Harlan Crow to be
    quite lucrative. Let’s face it: Supreme Court Justices don’t come cheap. The steady stream of thinly-disguised bribes—Crow is that generous with all of his friends, right?—includes a $500,000 cash payment to Thomas’ wife, an undisclosed number of trips on Crow’s yacht and private jet, a $175,000 library wing named in his honor, several million to turn the cannery his mother once worked for into a museum—a project that was reportedly initiated by Thomas himself—and the Bible of Frederick Douglass, valued at $19,000. Mike McIntire, The Justice and the Magnate, N.Y. Times, Jun. 19, 2011, at A-1, The legal value of a bribe is its value to the recipient, e.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986); United States v. Williams, 705 F.2d 603 (2d Cir. 1983) (business loan to Senator), and as far as the library and museum are concerned, garden-variety federal judges usually have to blackmail attorneys for that kind of consideration. See, Ronald Rotunda, The Courts Need This Watchdog, Wash. Post, Dec. 21, 2006, at A-29 (bribery as basis for judicial ethics complaint). If Thomas were one of a hundred Supreme Court justices, no one would ever shell out a seven-figure advance for a mindless and self-serving autobiography (and yes, I did read it), Frank Rich, Nobody Knows the Lynchings He’s Seen, N.Y. Times, Oct. 7, 2007 ($1.5 million advance for Grandfather’s Son), which is why he will (and has) sodomize the Constitution to preserve the status of his position.

    And then, there is Scalia, who has has parlayed his position and the celebrity attending it into a way to travel the world in resplendent fashion on other people’s money. His itinerary reads like most people’s bucket lists: Berlin. Warsaw. Rome. London. Zurich. Lisbon. Jerusalem. Istanbul. Tokyo. Copenhagen. Reykjavik. Dublin. Lima. Innsbruck. Melbourne. See Antonin Scalia, Form AO-10 (Financial Disclosure Report for Calendar Years 2003-2009), as reprinted at http://www.judicialwatch.org/judge/scalia-antonin. Nor did he neglect North American vacation spots: Banff. Fairbanks. Beaver Creek. Indian Wells. Jackson Hole. Honolulu. Id. And even while the Court was in session, and we were paying his salary, he took a nine-day vacation half-way around the world to one of the most spectacular places on Earth. Antonin Scalia, Form AO-10 (for Calendar Year 2004) at 4 (attending conference in Auckland, NZ from Oct. 19-27, 2004).

    While the financial incentives might not be as powerful, self-interest appears to drive many inferior court judges, as well. Appellate judges get to spend time on cases they want to hear, as opposed to those they have a duty to hear. William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723 (2005) (unpaginated text-based copy, reprinted at http://www.nonpublication.com). Trial judges get to play God, which is why so many of them begged or even bought their way onto the bench to begin with. See e.g., Will Evans, Money Trails Lead to Bush Judges, Salon.com, Oct. 31, 2006, http://www.salon.com/news/feature/2006/10/31/money_trail; Denis Hamill, Getting Judgeship A (50) Grand Thing, N.Y. Daily News, Oct. 25, 2005, at 3.

    I don’t believe for a New York minute that any of these judges didn’t know. My experience is that judges lie on the bench as easily as the rest of us breathe, and the accumulated evidence shows conclusively that if a judge has a dog in the hunt, he will never fail to pet it.

    I know enough about “American judicial ethics” to conclude that it is–with rare exceptions–an oxymoron.

    ENDNOTES
    [1] Malcolm X (a/k/a Malik El-Shabazz), “Message to Grassroots,” Speech, Oct. 10, 1963 (using term).

  6. I read that article you posted. About the only place that matches it for sheer amount of bullshit is a public school’s district website. Who can I apply to for a refund of my time spent reading that article?

  7. You are engaging in the very practices you decry. The Center (which has done much valuable work) alleges that some federal judges have failed to disclose conflicts of interest, and have sat on cases in which they have had such conflicts. You belittle the number of such instances, but in doing so you substantially admit the specific charges.

    That such cases are a small percentage of all the cases that come before the courts of appeal should be expected. What kind of a system would we have if even a few percent of cases involved conflicts of interest serious enough to require recusal, and the judges did not step back?

    In the event, the Center found 218 instances in which substantial conflicts went unacknowledged. I notice that you do not choose to quarrel with any of those instances. What does that mean? That to more than 200 parties, for whom the case in question was almost certainly their only case, the court system to which they turned because their dispute could not be resolved otherwise at least looked corrupt. That not only harmed the parties, but the federal judiciary and the justice system as a whole.

    Actually, the factors that the article discusses understates the effect that a conflict of interest is likely to have. While a judge’s decision is unlikely to be swayed by pecuniary interest if he or she owns 10 or 20 thousand dollars of a stock, it may be affected by feelings about the company. Investors tend to have affection for companies into which they put their money–even relatively small amounts. Indeed, the affection that investors have for companies (and the reluctance to sell even where fiscal prudence suggests that to be the best course) is one of the banes of the small investor. Are judges less likely to be influenced by such feelings than other people? I doubt it.

    Frankly, judge, methinks thou dost protest too much.

  8. But they aren’t “substantial” conflicts under any normal definition of that term. They’re technical conflicts under an overinclusive statute, overhyped (with absurd pictures of grieving victims over graves) to imply that the federal judiciary is rampantly corrupt and ruling based on financial self-interest. In one of the cases, the best they could do is point out a “conflict” where the judge ruled *against* the side he was formerly associated with. In none of the conflicts, as far as I could tell, was the “conflicted” judge even the deciding vote (I assume the blog would have mentioned it if there was a dissent). There are many problems in American law, and perhaps within the federal judiciary (implicit bias, etc), but this is a silly distraction.

  9. With all respect, Jay, it actually does matter. One honest judge (not that you would need more than a VW microbus to hold a national convention for honest federal judges) can mean the difference between justice and injustice. S/he may not prevail, but at least, the losing party will get the solace of being heard, and a judge saying what needs to be said. Justice Eismann of the Idaho Supreme Court recently showed the ‘nads to say what more judges ought to hear:
    :

    There is a saying that hard cases make bad law. That saying is incorrect. It is courts that make bad law in the process of deciding cases based solely upon whom they want to win or lose. A court must have the integrity to decide cases by applying the law to the facts.

    Nield v. Pocatello Health Services, Inc., Opinion No. 20 (Ida. 2014), (Eismann, J., dissenting), slip op. at http://scholar.google.com/scholar_case?case=3185439492724721710&hl=en&as_sdt=4006

    In point of fact, they rarely do. (I would refer the readers to Judge Kopf’s Standing Bear law review article to understand why this is so crucial.)

    I draw attention to how the sainted Judge Richard Arnold was browbeaten into withdrawing his famous Anastasoff opinion en banc. He had a chance to write a dissent for the ages, and suddenly went El Pollo Loco. It is the one absolutely unforgivable black mark on Arnold’s record, as it revealed a tragic deficit of character. As the Air Force Academy website asserts:

    Character is “the sum of those qualities of moral excellence which compel a person to do the right thing despite pressure or temptations to the contrary.” At the United States Air Force Academy, we’ll teach you to evince character in everything you do.

    Judges on the United States Courts of Appeal insist on being called “your Honor,” but they do not seem to have an equivalent code of honor. If our appellate courts had a Standing Bear respect for precedent as opposed to indulging their penchant for manipulating it, these conflicts would not matter.

  10. Spend twenty years in the real world, and revisit that article. You will know that the problem was grossly understated.

  11. Jon,

    We disagree, and I respect your point of view. I don’t think this is a big deal because the numbers are vanishingly small and you hold a contrary view. We might have a good debate on the substance.

    But, tell me why the Center found it necessary to use the overwrought headlines, and photos of the “downtrodden,” if the substance of the article warranted the concern of a serious person?

    All the best.

    RGK

  12. Ken,
    Respectfully, I don’t think I will.

    I may be young, but I know the difference between a federal judge with life tenure and a state judge who is elected by the Senate, and I know that they have different issues to deal with. I will deal with federal judges in this post, but state is a whole different kettle of fish. I also know that the phrase “good behavior” is best subjected to a loose interpretation. Why? Because the judicial system, for all its faults, is trusted. That trust is a currency that we need to allow the system to function.

    Do you know what one of the first things that we Americans did after Boston Harbor was closed under the Boston Port Bill? As a people, we shut down the court systems in the colonies. We threatened the magistrates and ran them out of town, because we did not trust them. When asked to serve on a grand jury, we refused and demanded that our grievances be heard.

    The phrase the framers used is “during good behavior.” If everytime we found out something bad about a judge, we attempted to remove them, this would become a purely political game. This is precisely why the framers did this. If you took some time to read Madison’s notes on the convention, you’d see that they intended this to good behavior language to counter the natural political nature of judicial rulings.

    We both know that media is controlled, and what becomes available for the public to see and which judges to be mad about would be controlled. It would be used for political ends. If, for example, one party controlled the Senate, and a district court judge ruled in a politically controversial way, that judge would have to consider whether they might be brought before the Senate and impeached for their actions.

    Mr. Hines, I have read your posts for several months now, and respectfully, your viewpoint is flawed. You see one side of the equation, not both. You say that some judges are biased. I agree. But you see only accountability as a solution, rather than accepting it as a cost of our system.

    And yes, I am willing to accept the rare failure to administer justice based on a possible personal bias as a cost for such a system. I suppose this shows my youth because I’m willing to come out and admit that rather than sugar-coat it in some other ideal. I have taken classes from federal judges, and have come to the conclusion that they are generally decent people who put their trousers on one pants leg at a time just like anyone else.

    The administration of a generally fair justice system is too important to deal with in malice. Too many lives and fortunes are at stake. I will not let the work of a few idiots in the judiciary stop me from believing that most judges work hard to administer justice in a fair way.

    You see accountability as the end goal. But I don’t think you see the political volatility that accompanies such accountability. I have read enough about other countries and their treatment of the judiciary to see otherwise. A good example is what currently is happening in Egypt, where they are handing out death sentences like candy. That’s wrong, period. Another good example was judges in the Soviet Union, and their telephone justice, where the party would call the judge up and tell them how to rule. If they did not do it, they were removed and possibly killed. I am not willing to open up our judges to the political system in the misguided pursuit of accountability.

    Justice Sandra Day O’Connor’s Majesty of the Law has some good information on ideas for setting up a system of justice with an independent judiciary, and I think her points are well-made. You cannot have justice without independent judges who are not directly accountable to the whims and tides of politics.

  13. And, more concisely, if you want a story of what being exposed to political accountability can do to a judge, I suggest asking Mr. Lorin Duckman.

  14. If you want a story of what being exposed to an unaccountable and hopelessly corrupt pack of judicial Saracens who are only out for themselves can do to a litigant, ask yours truly. My tale makes our Duck’s case look like an exemplar of procedural propriety.

  15. SLS: “The phrase the framers used is “during good behavior.” If everytime we found out something bad about a judge, we attempted to remove them, this would become a purely political game. This is precisely why the framers did this. If you took some time to read Madison’s notes on the convention, you’d see that they intended this to good behavior language to counter the natural political nature of judicial rulings.

    You can be forgiven of your abject ignorance here, as they really don’t teach this in ConLaw … but you ought to know the basics. As duly memorialized in Marbury v. Madison: “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. ” 5 U.S. at 174. And from Property, you know the ramifications of having a life estate subject to a condition: “Blackacre to SLS for life, but if he should ever drink alcohol, then to Duckman.” The first swig of Pabst not only shows your incredibly bad taste, but it extinguishes your interest in Blackacre.

    The first rule of statutory interpretation is to read the damn statute. In pertinent part, Section 1 of Article III reads: ” The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,” What do we have here, Counselor? A life estate in an office, subject to a condition.

    But what the hell does “good behaviour” mean? Standing on its own, it is perfectly opaque; a standard-less standard is no standard at all, thereby offending due process. And the Framers had to have meant something. But the Framers never needed to define it, as Coke and Blackstone did such a fine job of doing so. And had you studied Coke and Blackstone like every good Colonial lawyer did (we really don’t any more), you would know what the phrase meant.

    While the King “could do no wrong” (more accurately, was disinclined to do wrong), his courtiers often did. Accordingly, the common law developed a remarkably effective system for policing officials who abused the power of the magistracy. If the Crown owed you a duty, you had a remedy in mandamus. If you were victimized by crime, you prosecuted the perpetrator yourself. If you were wrongfully imprisoned, you could challenge the imprisonment through a writ of habeas corpus. And if a public official with a lifetime sinecure abused his authority, you removed him from office via the writ of scire facias.

    Although most agents of the Crown served “at the pleasure of the King,” some public officials in England were granted a freehold in their offices, conditioned on “good behavior.” See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer). Lesser lords were also given authority to bestow freeholds, creating an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks had job security. See e.g., Harcourt v. Fox [1692], 1 Show. 426 (K.B.) (clerk of the peace).

    At common law, good behavior tenure was originally enforced by the sovereign. But as this power concerned only the interests of his subjects, and the King exercised it only in parens patriae,/i>, he was bound by law to allow the use of it to any subject interested. 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 William Blackstone, Commentaries on the Laws of England 260-61 (1765) (emphasis added); see, United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process).

    By making a public official subject to removal for violating it, the condition of good behavior defined the powers of any given office. Coke listed three grounds for forfeiture of good behavior tenure: abuse of office, nonuse of office, and a willful refusal to exercise an office. R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378 (K.B.) (corporate recorder forfeits his office for a failure to attend corporate meetings); Henry v. Barkley [1596] 79 Eng. Rep. 1223, 1224 (K.B.); see generally, Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72, 88-128 (2006). Blackstone adds that “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 at 140-41. While an English judge could be removed by an address of both houses of Parliament, Act of Settlement, supra, Harvard’s legendary Raoul Berger noted that “the decided preponderance of authority, Lord Chancellor Erskine, Holdsworth, and others, consider that this provision did not exclude other means of [judicial] removal, that is, by impeachment, scire facias, or criminal conviction.” Raoul Berger, Impeachment: The Constitutional Problems 157 (Harvard U. Pr. 1974) (footnote omitted).

    In short, a duty to be fair and impartial was an integral part of an 18th-century English judge’s job description, as was the duty to hear every case properly brought before his court. But more importantly, the “abuse of office” condition seriously curtails a judge’s freedom of action. The Framers envisioned judges as interpreters of the law, as opposed to our Platonic Guardians. Alexander Hamilton explained that, to “avoid an arbitrary discretion in the courts, it is indispensable that [our judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78 at 470 (A. Hamilton). Blackstone asserted that the judge’s duty to follow precedent derived from the nature of the judicial power itself: a judge is “sworn to determine, not according to his own judgments, but according to the known laws.” 1 Blackstone, Commentaries at 69. A century earlier, Coke observed that “[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.” 1 E. Coke, Institutes of the Lawes of England 51 (1642). Jefferson crystallizes the thought with his usual brilliance: “Let the judge be a mere machine.” Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776.

    In advocacy of the proposed Constitution to the people of New York, Framer Alexander Hamilton opined that “the standard of good behavior for the continuance in office of the judicial magistracy, … [and] the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 87, 437 (Alexander Hamilton) (I. Kramnick ed. 1987). As it is hard to imagine how a phrase intended as mere surplusage would deserve Hamilton’s fulsome praise, and 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,” Marbury v. Madison, 5 U.S. at 174, the Framers plainly intended to grant Article III judges sinecures “during good behavior,” and for that condition to mean something.

    And everyone understood what that meant. In the course of debate at the Virginia Ratification Convention, Madison explained to his colleagues that whenever “a technical word is used [in the Constitution], all the incidents belonging to it necessarily attended it.” 3 J. Elliot, Debates on the Federal Constitution 531 (1836). This was accepted by Judge Pendleton, Chief Justice Marshall, and Edmund Randolph in the course of debate, Id. at 546, 558-59, 573, and Marshall applied it in United States v. Wilson, 32 U.S. 150 (1833), where he found that the scope of the President’s pardon power was determined by reference to English law:

    The Constitution gives to the President, in general terms, “the power to grant reprieves and pardons for offenses against the United States.” As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. [Id. at 160.]

    Good behavior tenure, and use of the scire facias to enforce it, is almost as old as Magna Carta. The writ itself can be traced to the early fourteenth century; it was used to punish abuses of office since the reign of Edward VI. 2&3 Edw. 6, c. 8, §13 (ca. 1540). A quarter-millenium may not be time immemorial, but it is the next closest thing.

    In Britain, the Act of Settlement established the rights of judges and litigants. Judges enjoyed lifetime sinecures (as opposed to serving at the King’s pleasure), but Parliament could remove a judge from the bench for any reason or no reason at all. As good behavior tenure is illusory if Parliament could remove you from office just because, it follows that Parliament had something else in mind. Hence, the only thing Parliament could have meant was that the subject’s common law right to remove a miscreant official from office for cause was to be applied to judges. And as Justice Scalia contends, Parliament’s good behavior clause is instructive as to how we should interpret our own:

    [T]he foreign law I think is relevant is very old foreign law—[laughter]—very old English law. Because what is meant by the terms of the Federal constitution is dependent upon what Englishmen in 1791 considered to be due process of law, or what they considered to be cruel and unusual punishment. So I use foreign law all the time — but it is all very old English law.[1]

    What is meant by the terms of the Federal constitution is dependent upon what Englishmen in 1791 considered to be good behavior tenure, because the term has no discernible meaning apart from English law. About a decade after its ratification, Senator David Stone of North Carolina stated the obvious in the course of debate:

    To what source, then, shall we resort for a knowledge of what constitutes this thing called misbehavior in office? The Constitution did not intend that a circumstance, as a tenure by which the judges hold their offices, should be incapable of being ascertained. Their misbehavior certainly is not an impeachable offence; still it is the ground by which the judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under and according to the Constitution. I take it, therefore, to be a thing undeniable, that there resides somewhere in the government a power that shall amount to define misbehavior in office by the judges, and to remove them from office for the same without impeachment.[2]

    Senator Hemphill’s response is instructive, in the sense that it recounted the Framers’ intention that “the words in the Constitution rendered the judges independent of both the other branches of government.” 5 Elliot’s 444 (remarks of Sen. Hemphill (F-PA). As the right to decide what is or is not “good behavior” sua sponte is a de facto power of address, it does not appear to have been the intent of the Framers to entrust that power to Congress.

    But this begs the natural question resolved by their brethren in Britain: Who has the power to enforce good behavior tenure? Justice Frankfurter reminds us that we should read the law “with the saving grace of common sense.” Bell v. United States, 349 U.S. 81, 83 (1955). As Professor Berger writes, “[w]hen an office held ‘during good behavior’ is terminated by the grantee’s misbehavior, there must be an ‘incident’ power to ‘carry the law into execution’ if ‘good behavior’ is not to be an impotent formula.” Raoul Berger, Impeachment: The Constitutional Problems 132, 2d ed. (Harvard U. Press 1999). Such a power must exist, as “[a] constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.” Jarrolt v. Moberly, 103 U.S. 580, 586 (1880).

    The power to punish judicial misbehavior must lie somewhere. The authority of Congress to remove any public official from office was expressly limited to impeachment and “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. Const. art. II, § 4, the executive Power only extends to the prosecution of criminal offenses, and the judicial Power extends only to the trial of cases and controversies. Ergo, by the process of elimination, that power must rest with the people or more specifically, to citizens aggrieved by that misbehavior, or not at all. As this is the interpretation of the Constitution most consistent with the British formulation of good behavior tenure, this is the one that the Framers must have meant. It is also the one Congress has applied on a consistent basis for over two centuries. The two remedies can be applied separately, and carry different punishments: Whereas the impeached official suffers “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” U.S. Const. art. I, § 3, cl. 7, a judge who violates the condition of good behavior could still run for Congress, where a lack of any semblance of personal honor or integrity is remarkably pedestrian.

    This was established a century ago in the investigation of Judge Emory Speer of the District of Georgia, charged with “despotism, tyranny, oppression, and maladministration” in the course of his judicial decision-making. Charles Geyh, When Courts and Congress Collide: The Struggle for Control of America’s Courts 160 (U. Mich. Press 2008). Specifically, the congressional committee concluded that “a series of legal oppressions [constituting] an abuse of judicial discretion” did not constitute an impeachable offense, id. at 160-61 (quotations omitted), despite their being self-evident serial violations of his good behavior tenure. Other cases involved the impeachment of Samuel Chase, who single-handedly emasculated the Seventh Amendment. While the process of impeachment has an inescapable and odious component of political vengeance—the managers of the Chase impeachment would never have dreamed of impeaching President Clinton—both parties in that dispute agreed that a judge is removable for misbehavior under the good behavior standard, 3 Hinds at 765 (stmt. of Luther Martin), with the only question begged being who has proper legal authority to do it.

    This is what the evidence shows that the Framers intended in adding the “good behaviour” clause. And if you studied the matter yourself, you would also know that virtually all debate in the federal and state constitutional conventions on the topic concerned whether Congress should retain the power to remove Article III judges via address. For example, in the national Convention, Gouverneur Morris said that it was “a contradiction in terms. to say that the judges should hold their offices during good behavior, and yet be removeable without a trial [and] it was fundamentally wrong to subject judges to so arbitrary an authority.” 5 Elliot’s 481 (remarks of Gov. Morris). Ironically, this was intended to insulate judicial discipline from the vagaries of partisan politics.

    I will address the rest of your comments in a separate post, as they deserve an equally thorough response.

    ENDNOTES:
    [1] Antonin Scalia (Associate Justice, United States Supreme Court), “International Law in American Courts,” Speech (to the American Enterprise Institute), Feb. 21, 2006 (copy of transcript on file).
    [2] 4 Elliot’s 443-44 (remarks of Sen. Stone (R-NC), dated Jan. 13, 1802.

  16. Ken,
    Thanks for your reply. I apologize if anything in my tone in the previous post sounded snarky. You have read a lot on this subject, and I appreciate you taking the time to explain your views. But I don’t think you’re going to find a satisfactory answer within the English system.

    The concept that the founding fathers intended for every word’s definition to be nailed down is, unfortunately, an illusory one. Just ask Edmund Randolph. One of the things he motioned for in his objections before refusing to sign was an explanation of the vague terms used within the Constitution. On September 10th, one of the reasons he criticized the committee for failing to create a more definite boundary between the state and federal legislatures, and between the state and federal judiciaries.

    The other curious thing about Randolph is how fundamentally different his principles really were from Madison and Hamilton Randolph had two principles he espoused: rejection of the British government for the American people, and as close an adherence as possible to republicanism. He was far from alone in sharing this rejection of the British view.

    I’d also like to add that Blackstone was philosophically dramatically different from the experiment the founding fathers were attempting in Philadelphia. Blackstone relied on the divine grace of kings to give power to the judicial system. The King could pardon those who, had through accident of law, had been found unfortunately guilty. He held the court of equity within his breast. But in the American system, that same court of equity was held within the breast of a man, who the populace threw up out of banal commonality every four years. He was no one special, just someone the people (and electoral college) happened to like at that point in time. What right did he have to exercise the divine powers of pardon?

    Reliance on british legal theory is dangerous. I’ve seen lawyers do it here in South Carolina several times now, and each time I’ve written a brief in response I’ve had to expose some bullshit.

    Even assuming that Blackstone and Coke all meant the same thing, and it was somehow applicable, the fact is that not all of the framers agreed on everything and not all of them were lawyers.

    I remember going to a presentation by a professor who very patiently explained to me that, through interpreting the British legal system and the common law, we could arrive at one, simple conclusion: that the Death Penalty could be thrown out because the style of execution was both cruel AND unusual. That word and meant everything to him, and it was most definitely not an ‘or’. What a convenient solution! So timely!

    It’s nonsense. I asked him a series of questions after the presentation: what would happen if this were in place today? Would it abolish the death penalty? Would it abolish lethal injection? How would it help the future? How does it change anything? He admitted to me that it was an impossible solution to today’s problems. His solution was based on the past practices of 50 years. Where did he get 50 years from? It was a purely arbitrary number.

    Oftentimes, I see a lot of excessive navel-gazing in the academic world about the powers that be in our Constitution. Navel-gazing is healthy in moderate doses. But it’s not a substitute for common sense, nor is it a substitute for taking the Constitution, reading it, and then looking at the world around us. Sometimes we need to look at the world and decide it needs changing. United States v. Crawford was a good example.

    The same applies to the framers. I refuse to believe that our forefathers, with their massively varied experience and staggering intellects (some more staggering than others), all arrived at the the same meaning to the same set of words, particularly when they are so ambiguous. Good behavior meant one thing to Madison, Randolph, and Jefferson (who wasn’t there). It might have a different meaning to Washington, Franklin, and Luther Martin. I’m almost certain it would have had a dramatically different meaning to Patrick Henry. He certainly would not have described it to his people in the legalistic sense you have provided.

    Bluntly, our founding fathers didn’t pray our country into existence and recieve a divine blueprint, they sat around and argued it into existence over an excruciating half a year! Our entire legal system is founded not on blueprints, but compromise.

    I understand the purpose of the originalist movement, and I think it is noble. It has dramatically increased our knowledge and understanding of the Constitution through careful, historical research. But it needs to recognize that ambiguity has always existed in the law, and will continue to exist in the law. The Constitution is no exception.

    This is a good thing. Ambiguity is the bread and butter of liberty. Without it, we cannot correct ourselves of our past mistakes. But that’s double-sided: we shouldn’t excuse our current mistakes by it either. Therefore, when looking at your definition, I don’t just look at the way you get to your end result, but the ramifications of your end result. And I am still not convinced that it’s the right result.

    Your post makes logical sense, and is coherent, but it is one of several possible answers to this riddle. Another is Sandra Day O’Conner’s view. What makes your viewpoint better than hers? Why is yours the one we should choose?

    Thanks again for taking the time to respond. This is a lot more interesting than I had thought it would be.

  17. SLS: “Because the judicial system, for all its faults, is trusted. That trust is a currency that we need to allow the system to function.

    That “currency” was pissed away a long time ago and mostly, on Judge Nottingham’s harem of high-class hookers. Those who study this sort of thing acknowledge that our system is the worst in the Western world, and by a fair margin. Whereas in countries like Japan and France, judges are chosen by competitive examination and trained, American judges are for the most part hack lawyers who once knew a governor or Senator, and according to Judge Gertner, are trained on how to feloniously deprive citizens of their rights.

    SLS: “And yes, I am willing to accept the rare failure to administer justice based on a possible personal bias as a cost for such a system

    Tell you what: I will agree to this, as long as YOU volunteer for the short straw. If you have been on the business end of injustice, you will have a different take … and if there is a just God, it will happen to you. Nothing personal, mind you; in the words of Honest Abe, “Whenever I hear any one arguing for slavery I feel a strong impulse to see it tried on him personally.” Your perspective tends to change when you are twelve years a slave.

    SLS: “The administration of a generally fair justice system is too important to deal with in malice. Too many lives and fortunes are at stake. I will not let the work of a few idiots in the judiciary stop me from believing that most judges work hard to administer justice in a fair way.

    I will, however, let the work of a lot of the Jerry Sanduskys in the judiciary, the Mike McQuearys who stand in silence, and the Joe Paternos who enable them to persuade me that most judges are corrupt and lazy, or solicitous of those who are. Moreover, I have a Colorado-sized avalanche of evidence to dump on anyone who is as naive as you.

    SLS: “ If, for example, one party controlled the Senate, and a district court judge ruled in a politically controversial way, that judge would have to consider whether they might be brought before the Senate and impeached for their actions.

    This is why we limited Congress’s power over judges to impeachment. But to only limit control over judges to impeachable acts is to appoint our judges as dictators. Again, Abraham Lincoln responds: “[N]o man is good enough to govern another man, without that other’s consent.” The Constitution and Bill of Rights marks the limit of our consent, and with the Framers, I will suffer no king but the law. That law only grants judges the judicial Power, which is to apply the law of the land to the facts of the case without fear or favor. How do you enforce that limit? Assassination of the judge’s grandchildren? Surely, that could not have been the Framers’ intent.

    Putting the power of removing judges in the hands of disgruntled litigants motivates judges to make sure there aren’t any. It worked in Britain for almost 90 years by the time our Framers convened in Philadelphia, and if it was good enough for them, it is probably good enough for us.

    SLS: “You see accountability as the end goal. But I don’t think you see the political volatility that accompanies such accountability. I have read enough about other countries and their treatment of the judiciary to see otherwise. A good example is what currently is happening in Egypt, where they are handing out death sentences like candy. That’s wrong, period. Another good example was judges in the Soviet Union, and their telephone justice, where the party would call the judge up and tell them how to rule. If they did not do it, they were removed and possibly killed. I am not willing to open up our judges to the political system in the misguided pursuit of accountability.

    I see equal justice under law as the end goal.

    Again, yours is an ignorance borne of inexperience and lack of pertinent study; I have no doubt that you will learn eventually. And to be blunt, I deny that our system is much better than that of the old Soviet Union. Where else but in America could you witness the spectacle of judges sitting in judgment of a tort claim where they are named as defendants, and that more than a dozen non-conflicted judges are available and expressly authorized by law to sit in their stead? Hell, That even offends the jurisprudence of Bangladesh, Zimbabwe, and Putin’s Russia! This, in turn, is only made possible by the abominable practices of discretionary certiorari review and so-called “unpublished” opinions, devised by judges for their benefit. Read Judge Arnold’s opinion in Anastasoff–or my article, published as a guest opinion on this blog–to get up to speed. Professor Dershowitz can help you along:

    Trust no one in power, including—especially—judges. Don’t take judicial opinions at face value. Go back and read the transcript. Cite-check the cases, You will be amazed at how often you will find judges “finessing” the facts and the law.

    Alan Dershowitz, Letters To a Young Lawyer 11 (Basic Books 2001).

    SLS: “Justice Sandra Day O’Connor’s Majesty of the Law has some good information on ideas for setting up a system of justice with an independent judiciary, and I think her points are well-made.

    SRSLY??? Whereas Thurgood Marshall had a towering intellect, Tee-Hee, Sandra Dee was a maven of mediocrity–a singularly execrable example of the affirmative action SCOTUS recently eviscerated. In that hemorrhoid of a tome, she commits this “original sin” of judicial hubris:

    The importance of the judicial branch to citizens of every country, and the crucial need for an independent judiciary free from political and private pressure, was eloquently expressed by John Marshall long ago: “The Judicial Department comes home in its effects to every man’s fireside. It passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that [the judge] should be rendered perfectly and completely independent, with nothing to influence him but God and his conscience?”

    Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice 248 (2d ed. 2004).

    Change the word “judge” to “Adolf Hitler,” “Saddam Hussein,” or “King George III,” and you should see the problem. While a dictatorship may be nice if you are the dictator, it’s not that great if you are one of his thralls. We want judges who are independent of the government, but not judges who are above the law.

  18. If you are one of the downtrodden, you have a different take. I just wish they would take on the real problem (the “issue of accountability—or lack thereof — in the federal court system”). Let me loose, and I would rip our racketeering judiciary a new one so large that Captain Sullenberger could fly a 737 through it,

    For good or ill, the Due Process Clause has a zero-tolerance policy on this point. Caperton v. A.T. Massey Coal Co., No. 08-22 (U.S. Jun. 9, 2009); In re Murchison, 349 U.S. 133 (1955); Tumey v. Ohio, 273 U.S. 510, 523 (1927); see also, e.g., Calder v. Bull, 3 U.S. 386 (1798), Dr. Bonham’s Case [1610] 8 Co. Rep. 107a (K.B.). You might argue that there should be a de minimis rule, but it is spectacularly obvious in most of these cases that the judges screwed up. You are presumed to know where your money is invested … and it always seems that, when a judge has a dog in the hunt, he never fails to pet it.

    If you need to be told why this practice is wrong, you probably shouldn’t even be a lawyer, to say nothing of infesting a federal bench. But if you do need slides, the Colorado Supreme Court provides them:

    The first ideal in the administration of justice is that the judge must be free from bias and partiality. Men are so agreed on this principle that any departure therefrom shocks their sense of justice. … We are equally certain that when … a judge is prejudiced or otherwise incompetent to hear or try a cause, but nevertheless, proceeds in that regard, the issues are not likely to be determined and the rights of the parties properly protected and enforced in a court over which he presides.

    People ex rel. Burke v. District Court, 60 Colo. 1, 4, 152 P. 149 (1915).

    The right to have disputes adjudicated by an impartial arbiter is essential to any civilized society. Any violation of this principle is egregious and, in my judgment, deserves the headline it got.

  19. Ken,
    I had not read this post when posting my above response, I apologize. I think it’s best if we simply agree to disagree at this point. I see there’s a chasm between us and our experiences that will likely not be changed with mere words.

  20. No offense taken. I do it too, and sometimes unintentionally; if this were a board populated by right-wing crazies, it would be intentional.

    Before I went to law school, I was a Big-8 (now, “Final Four”) C.P.A. Our term of art was “internal controls”: “How do you design a foolproof system?” The Framers’ approach was an application of this principle: What kind of government would you design if you were in the minority? I can’t impart all of what I have learned through intense study of Blackstone, Coke, Hobbes, and Locke, and the writings of the Framers and the debates at the various conventions in this forum; it would be an entire course in law school. There is a lot for you to understand–and one of the nice things about being here is you have the benefit of a lot of old war horses with an abundance of wisdom and experience–but I’ll try my best to distill it for you and cure a few of what I perceive as your misconceptions.

    But I will also say “de omnibus dubitandum.” Test everything, and hold on to the good. 1 Thess. 5:21.

    As much as I disclaim his hypocrisy–he is about as faithful to his originalism as Tiger was to ex-wife Elin–Scalia is one of the premier constitutional scholars of our age. He has a lot to say that conceptually, you need to pay attention to. And one of his best lessons was imparted in a fit of pique from the bench: “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?” Arizona v. United States, No. 11-182, Jun. 25, 2012 (Scalia, J., bench statement at 6). If you wouldn’t have agreed to the Constitution if it contained that holding, the Framers probably didn’t intend it.

    SLS: “I’d also like to add that Blackstone was philosophically dramatically different from the experiment the founding fathers were attempting in Philadelphia. Blackstone relied on the divine grace of kings to give power to the judicial system. The King could pardon those who, had through accident of law, had been found unfortunately guilty.

    If you believe that, I think you misunderstand Blackstone. In Magna Carta, it was established that the King was not a person but an office, and that the man in that office was an agent of the people. Locke addresses this more directly in Chapter 18 of his Second Treatise, but you can even see echoes of this in Codex Hammurabi. By the time Blackstone wrote, Parliament was the supreme authority in Britain, and the Westphalian and Catholic concept of the divine right of kings, Rom. 13:1, had largely become passe. To understand our legal history, you need to become familiar with pertinent British history; I would strongly recommend that when you have a few hours, that you audit Prof. Wrightson’s superb Yale on-line course at http://oyc.yale.edu/history

    Moreover, if you believe that, you misunderstand what the Framers were trying to do. What the Framers’ generation “understood when they ratified this Constitution was that they were affirming the rights of Englishmen,” according to Scalia. They could have appointed a king, but Washington didn’t want the job. They settled on electing a President– but not a Prime Minister–as they were enamored with Baron Montesquieu’s arguments regarding separation of powers. Moreover, our Constitution was an agglomeration of what the independent States had come up with; read some of the state constitutions at Yale’s Avalon Project and you will see the parallels. I would direct your attention in particular to New Hampshire’s Bill of Rights, which is a pure codification of the Lockean bargain.

    SLS: “I understand the purpose of the originalist movement, and I think it is noble. It has dramatically increased our knowledge and understanding of the Constitution through careful, historical research. But it needs to recognize that ambiguity has always existed in the law, and will continue to exist in the law.

    This is a good thing. Ambiguity is the bread and butter of liberty.

    Agnus Dei!!! Justice O’Connor and I would take issue with you: “Liberty finds no refuge in a jurisprudence of doubt.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992).

    The doctrine of stare decisis creates a reliance interest, allowing citizens to plan their affairs with confidence and bolstering public faith in the judiciary as “a source of impersonal and reasoned judgments.” Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970). After all, if a judge is free to decide a case one way on Tuesday, and decide a factually indistinguishable case the other way on Thursday, it shatters any residual illusions of governance by the “rule of law.” See e.g., Richard A. Posner, How Judges Think (Cambridge, MA: Harvard U. Press) at 1 (“If changing judges changes law, it is not even clear what law is.”). Significant uncertainty in the application of the law impairs everyone’s liberties, for when “one must guess what conduct or utterances may lose him his position, one necessarily will ‘steer far wider of the unlawful zone,’” Speiser v. Randall, 357 U.S. 513, 526 (1958) (citations omitted); “the value of a sword of Damocles is that it hangs — not that it drops.” Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting).

    I want to know what my rights are, what my responsibilities are, and what our government can and cannot do to me. Ambiguity is not our friend, and I would never agree to a constitution investing my rulers with ambiguous powers, as they will always interpret them broadly and to my detriment.

    I think you misunderstand originalism, as well. As the New Hampshire Constitution makes clear, a constitution is a mere contract, and must be interpreted in that light. As Scalia so adroitly put it, “the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted.” Antonin Scalia, God’s Justice and Ours, First Things (May, 2002) at 17 And he is in stellar company. As James Madison observes, there is one and only one proper way to interpret the Constitution:

    I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

    James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910). At the risk of stating the almost insultingly obvious, there is one and only one correct way to
    interpret the Constitution, and the most effective summation of this principle comes (as it always seems to) from the pen of Thomas Jefferson:

    Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction. If [our public officials’ powers are boundless] then we have no constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.

    Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

    I daresay that you will not find a single Framer who agrees with you, as I have never encountered one. A lot of people in the state conventions complained vigorously about the open-ended nature of the Commerce Clause, a debate that is still raging today. Living in the epicenter of crazy–the home of Jim DeMint and Nikki Haley–you should know it well.

    SLS: “Therefore, when looking at your definition, I don’t just look at the way you get to your end result, but the ramifications of your end result. And I am still not convinced that it’s the right result.

    Why is it not the right result? What did the Framers intend in the Good Behavior Clause, and how do you know? Is it just because you don’t like the outcome? And specifically, how do you respond to Justice Scalia?

    Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences.

    Michigan v. Bryant (Scalia dissent), at http://www.law.cornell.edu/supct/html/09-150.ZD.html (too lazy to do a proper cite).

    You want to be an attorney? Make your argument! What does that phrase mean, and why? (Bear in mind that to say it means nothing is to overturn Marbury v. Madison.) ‘I am not convinced because I just don’t like the outcome” is not a tenable argument.

  21. No need; we’re all friends here. But I will tell you what just about every veteran attorney will tell you: You will change your mind, and experience will change it for you. I was once as innocent and naive as you, back in the day. I trusted the system, to my detriment.

    But once your rights have been raped by judges, you will never trust them again. And even if it doesn’t happen to you personally, it will happen to one of your clients. Count on it.

  22. All right, I’ll bite. I hope you’ll forgive me if I don’t cite cases. I’m in the middle of finals prep at this time and (while this is a very interesting diversion) I don’t want to spend the time to look up the cases.

    First of all, I’m not going to rely on anything Thomas Jefferson says on the Constitution. He was a brilliant man, but he wasn’t there for it.
    You said this:

    “Moreover, if you believe that, you misunderstand what the Framers were trying to do. What the Framers’ generation “understood when they ratified this Constitution was that they were affirming the rights of Englishmen,” according to Scalia. They could have appointed a king, but Washington didn’t want the job. They settled on electing a President– but not a Prime Minister–as they were enamored with Baron Montesquieu’s arguments regarding separation of powers. Moreover, our Constitution was an agglomeration of what the independent States had come up with; read some of the state constitutions at Yale’s Avalon Project and you will see the parallels. I would direct your attention in particular to New Hampshire’s Bill of Rights, which is a pure codification of the Lockean bargain.”

    I just finished a course on the Federal Convention, and some of this doesn’t match what I saw in the Convention. Sure, some were guided by lofty ideals such as Lockean principles. I think it’s fair to say Madison especially had read those materials backwards and forwards. But don’t forget about the power dimensions. A lot of the arguments had nothing to do with the principles, but rather what power their state stood to gain or lose. For example, Delaware, a small state, sent a delegation expressly under limits that no change to the nature of the representation of the States in Congress could occur. This wasn’t for some great philosophical reason; it was because Delaware was a tiny state and had a vote and didn’t want to lose it. At first, the issue was small states versus big states. They argued over non-philosophical things such as who had the right to pass laws about maritime passages. Benjamin Franklin, the quintessential American, was about as practical as you can be. When faced with irreconcilable differences, he presented the problem in an ingenious way that gave something to both sides (in the grand compromise).

    The executive was another matter. Compare the Virginia Plan with what came out in the end, and look at the debates on it. Edmund Randolph, who introduced (but did not create) the plan colorfully referred to the concept of a single executive as “the fetus of Monarchy.” Nor was he alone in those sentiments.

    What do I believe that good behavior means? I’m not sure I can give an answer to satisfy you. Do you mean what it means to me personally? I think it means the judiciary must reasonably conduct himself in accordance with principles that support the judiciary. To me, those words lack teeth. They are weak, nonspecific, and general. They will crush a judge who steps egregiously outside the bounds of what is acceptable, but they will not tear at his pants leg if he steps a toe over whatever political line we draw in this day and age. But that answer’s useless. Like you said, I’m young, I haven’t studied the subject like you have, and (let’s be honest) no one really cares what I think it means. No one’s paying me for my opinion, and I’m not paying anyone to argue it for me.

    What matters is what society thinks it means. What society thinks it means is that judges are elected for life, and unless something horribly egregious is brought to our attention, we should trust them. The founding fathers set up the system so that Congress may impeach judges. They have attempted that with the Supreme Court precisely once, and it failed. Judges have been impeached, but not for stocks. This is what we have thought it meant in the past:

    http://www.fjc.gov/history/home.nsf/page/judges_impeachments.html

    What do we think it means today? Well, I can tell you this much: society (for better or worse) doesn’t seem to give a rat’s ass that Clarence Thomas is is on those fundraisers, or that his wife does the political work she does. I very much doubt you will have success in explaining to a United States Representative or Senator that a judge should be impeached because he owned stocks in a company.

    In other words, as a society, we don’t think about it very much at all. It’s like the third amendment. Judges are judges and are elected for life. We don’t impeach them!

    Now, I have some problems with society’s view. Like you, I think accountability is an important goal. I want justice to be the endgame. I want justice to be accurate, and I want it to be thorough, and I want it to cheap, and I want it to be fast.

    Obviously you can’t have them all. In doing so, I am forced to balance different considerations. In the justice system, every action has reactions. And those actions are what’s important, not the ideal. So, that out of the way (and my silly explanation for what I think of it out of the way), let’s say I agree with you and say that judges are not being held sufficiently accountable for their actions.

    How do you propose to solve this? And what ramifications will your solution have on the other parts of the justice system? And I don’t mean in an abstract sense with no target audience. I mean before in this political atmosphere, right now. Why should voters ask their representatives to work on this and why should they then do something about it?

  23. SLS: “What do I believe that good behavior means? I’m not sure I can give an answer to satisfy you. Do you mean what it means to me personally? I think it means the judiciary must reasonably conduct himself in accordance with principles that support the judiciary. To me, those words lack teeth. They are weak, nonspecific, and general.

    The question is obvious. You have your barrister hat on. What does THE LAW say that it means? No one cares overmuch what either of us might think personally … and we both know that.

    Your answer is clear: you would assert that they are weasel words, utterly unenforceable and devoid of meaning or effect. But if that is the case, why are they there? Again, 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.” Marbury v. Madison, 5 U.S. at 174, And as the words do not require it, from a standpoint of proper constitutional interpretation (you are at liberty to disagree from a personal perspective), you are wrong. There is no other option.

    SLS: “What matters is what society thinks it means.

    Is that how you propose that judges decide cases? That a judge can stick his finger in the wind, decide which way he believes the wind is blowing, and rule accordingly? [Hint: A judge will always decide that “society” agrees with his personal views.] With all respect, to state your case is to refute it.

    Justice Thomas replies: “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: “judicial inquiry is complete.” Connecticut Nat’l. Bank v. Germain, 503 US 249. 253-54 (1992) (citations omitted).

    The words “good behaviour” are unambiguous and, as was the case with the word “pardon,” capable of ready determination. The phrase means what it did in pre-existing British law: an aggrieved litigant has a right to remove a judge from office for a violation of his good behavior tenure. And the violations are abuse of office, nonuse of office, a willful refusal to exercise an office, and “oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office.” Compared to the vagaries of due process, this is simple enough for a law clerk to figure out. I don’t know how you can assert that “due process” is enforceable, but “good behaviour” is not.

    SLS: “ I very much doubt you will have success in explaining to a United States Representative or Senator that a judge should be impeached because he owned stocks in a company.

    Nor should I have to, as the only persons I would have to explain it to would be a civil jury. Congress has said that it doesn’t have the power to enforce the good behavior clause, and that is the correct reading of the Constitution (if it had that power, it would have been granted explicitly in Article I). By a process of elimination, it is a right entrusted to the individual litigant, and that litigant has to persuade a jury of his peers. But as a practical matter, I fail to see how not knowing what you inherited is going to fall into any of the four well-established categories of firing offenses.

    SLS: “ How do you propose to solve this? And what ramifications will your solution have on the other parts of the justice system? And I don’t mean in an abstract sense with no target audience. I mean before in this political atmosphere, right now. Why should voters ask their representatives to work on this and why should they then do something about it?

    I don’t need to persuade voters or representatives to implement my solution, as it is already embedded in the Constitution. But as the alternative is judicial assassination–the natural law right to kill a tyrant is essentially absolute[1]–and nothing else has really worked, I submit that mine is the most elegant of the possible solutions.

    The only problem, of course, is that a typical judge would sooner sodomize his grandmother than give up his power; they are no different from Saddam Hussein and Bashir al-Assad in this regard. To get a federal judge to follow the Constitution when he really, really, really, really doesn’t want to (what I call “Standing Bear Integrity”) is considerably more perilous than getting a camel through the eye of a needle.

    _____________________
    ENDNOTE

    [1] The absolute right to assassinate a tyrant in defense of lives and liberties has been recognized
    by Anglo-American law since before Magna Carta, and in civilized societies for many centuries before that. Cicero asserted that it was “morally right to kill” tyrants, as they are “monsters … in human form [who] should be cut off from … the common body of humanity.” 3 Marcus Tullius Cicero, De Officiis, 299 (T. Page and W. Rouse, ed., W. Miller, trans., 1921) (44 B.C.E.). Greek states, observes Xenophon, would “bestow great honour on him who kills a tyrant.” Xenophon, Hiero, A Dialogue on Royalty, as reprinted in Xenophon’s Minor Works 55 (J.S. Watson, trans., 1898) (ca. 370 B.C.E.). Christian theologians since Augustine have consistently held that “what is done unjustly, is done unlawfully.” St. Augustine, City of God, Book XIX, Ch. 21 (J. Healey trans. 1610) (~415). The paradigmatic definition of tyranny is given by John Locke:

    “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. …

    Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.”

    John Locke, Second Treatise of Government §§ 199. 202 (1695) (emphasis added). Locke goes on to note that the right to resort to lethal force against a magistrate exists only where there is no adequate remedy at law. Id. at § 222. Madison concurred, observing that

    preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.

    James Madison, Address to the General Assembly Of the Commonwealth Of Virginia (undated), reprinted in 2 James Madison, The Writings of James Madison (1783-1787) at 122-23 (emphasis added). While the opinion of “the Father of our Constitution” carries special weight, concurrence among the Framers is nothing short of unanimous. See e.g., Mass. Const. Art. XXX; Marbury v. Madison, 5 U.S. at 176-80; George Washington, Farewell Address, Sept. 19, 1796 (“let there be no change [in the Constitution] by usurpation … [as] it is the customary weapon by which free governments are destroyed”).

  24. SLS, I don’t think we’re as far apart as you think we are. Whether that’s good or bad is another matter….

    For instance, I am willing to accept the rare failure to administer justice based on a possible personal bias as a cost for such a system.

    As am I. See, for instance, my comments concerning (the growing mandatory nature of) sentencing guidelines vs the judge being much freer to sentence based on particulars of the specific case before him.

    As for accountability, perhaps I haven’t been clear. I don’t see accountability as a goal but as a necessary tool to preserve the system and weed out the truly bad ones. Certainly accountability can be misused, and in exactly the way you describe. But the system was set up to make it difficult to abuse the thing. As you’ve pointed out, “good behavior” is a vague term. Couple that with the votes required to get a sitting judge tossed, and accountability becomes a hard thing to abuse.

    I trust to that system of accountability, as a tool. In nearly 220 years, our system of accountability has impeached 15 Federal judges. Of those, 8 were convicted, and 4 were acquitted; the remaining generally resigned, of which we can make what we will, and not necessarily with much accuracy. There were, as of spring 2012, a skosh under 3,300 Federal judges–a snapshot; I’m clueless on the total number of Federal judges we’ve ever had in those 220 years. Still, just of that snapshot, those 15 impeachments (mixing time frames, which overstates the case) accounted for less than one-half per cent of the judges. It doesn’t seem to me that accountability is being abused overall.

    Certainly judges come in for more than a little opprobrium if they rule in the “wrong way.” That’s part of the price of a public life. And it doesn’t impact their subsequent rulings in any substantive way that I can see.

    Good luck on your finals.

    Eric Hines

  25. Ken,
    Thanks for the responses. This has been a very enlightening argument.

    One last thought: Why are we discussing what a judge thinks of that phrase? The only group with the power to impeach is Congress. That’s the reason for my focus on the popular element rather than the judicial one.

  26. All arguments worth having are.

    Impeachment is an Article II remedy which reaches all federal officials (Congress has its own system of discipline); the standard is “high crimes and misdemeanors.” This is an Article III remedy, which only applies to Article III judges by definition, applying to judicial sloth (judicial inaction cannot be a high crime or misdemeanor). See Sai Prakash’s Yale L.Rev. article cited above for the textual argument that these are two separate processes, and Raoul Berger’s Impeachment, if you are interested. You see, if all we could do is impeach a judge, as the legendary Berger points out, there would be no need for a condition of good behavior.

    Good luck on finals. If this is related to your class on constitutional formation, I hope it helps.

  27. “Good behaviour” is defined with enforceable precision in British law, which is where we are expected to look for definitions of terms of art. If British law can be used to define “pardon,” United States v. Wilson, 32 U.S. 150, 160 (1833) (scope of pardon power determined by reference to English law, as the concept was taken from England), why can’t it be used to define “good behaviour”?

  28. What was cut-and-pasted, apart from the quotations?

    If you will note, the above was a discrete rebuttal to several of SLS’s ancillary points; my primary argument (presented above) is that the Good Behaviour Clause of Article III is amenable to enforcement, in line with pre-existing British precedent. See US v. Wilson, supra.

  29. Criticizing the messenger is a way to avoid the message. The Center does not work primarily with respect to the courts; most of its work deals more with government agencies and politicians. From our standpoint, it may be informal, and even seem inflammatory, but to the extent that it has influence, that comes from being noticed. So, it needs to be noticed. Actually, in the range of opinions out there on the ‘net, it’s relatively mild.

  30. Jon,

    Sure, I get your point. But, the problem is that judges unlike politicians can’t readily defend themselves from hyperbole. All the best.

    RGK

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