Does Congress Need to Impeach Judges to Make Them Behave?

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Members of Congress are currently filing resolutions to impeach federal judges who are blocking the work of the Trump administration.

But what does the Constitution actually say about how long a federal judge may serve on the bench?

ART III, Section 1 of the U.S. Constitution states, “The Judges, both of the supreme & inferior Courts, shall hold their Offices during good Behavior…” It does not say that the judges will hold their offices until they resign, die, or commit “a high crime or misdemeanor.” It just says that they stay on their bench while their “behavior” is good.

Now if a federal district judge had previously served on the board of directors of an organization when it received tens of millions of dollars in federal funding and he or she issued an order requiring that the federal spigot feeding that organization could not be closed instead of recusing himself, would that be considered “good behavior?”

Such a case recently came up when District Judge John McConnell Jr. blocked a funding freeze by the Trump administration without disclosing his role on the board of Crossroads Rhode Island: a nonprofit which had received $128 million in government funding during his tenure.

Rep. Andrew Clyde (R – Georgia) announced that he was drafting articles of impeachment against the judge. Rep. Eli Crane (R – Arizona) just filed a resolution for impeachment regarding another federal judge. Others may be filed as well. Thus, the standard of proof in such events needs to be revisited.

The Constitutional provision of “good behavior” is quite different from the provisions that discuss “high crimes and misdemeanors.” Good behavior does not seem to have such a low threshold that asks a judge to only avoid criminal conduct. It instead anticipates that judges are to be held to a much higher standard than government executives. The Constitution also does not use the words “lifetime appointment.”

Desiring simplicity, the founders did not dictate that those reviewing conduct of a judge or justice should be severely restricted to only that which met all the elements of a criminal charge. The Constitution’s founders wanted judges who could not be swayed by money, politics, or personal advancement.

From the most quoted book in the history of Congress (the Bible), particularly in the earlier Congressional days comes these words, “You shall do no injustice in judgment. You shall not be partial to the poor, nor honor the person of the mighty. In righteousness you shall judge your neighbor.” (Leviticus 19:15) In that regard, the Constitutional framers appear to have aspired for righteous judges. They held out no such hope for legislators or executives.

As the Constitution makes quite clear, it only created a single federal court, that being the Supreme Court. All other courts owe their existence, jurisdiction, and continuation to the U.S. Congress. As my Constitutional Law professor would occasionally add, “Congress brought all federal courts but the Supreme Court into being, and it can take them out.”

Certainly judges can be impeached. We had two cases for impeachment of federal judges while I was on the Judiciary Committee in the House of Representatives. However, before even getting to the issue of impeachment, shouldn’t Congress be able to subpoena a judge to determine if conduct is outside the realm of good behavior?

We have seen federal judges in January 6 cases seemingly aspiring to the level of Judge Roy Bean justice. Would “good behavior” be violated when a judge describes a defendant’s conduct as “insurrection” during sentencing when that defendant had not been charged with it and not convicted of it? There seem to be numerous questions of judicial “good behavior” raised during the January 6 cases.

Though the Executive and Legislative Branches are constantly flexing their checks and balances on the other, the Judiciary continues to claim that they and they alone should regulate their own personnel when it comes to misconduct. However, when the highest court in the land does not enforce its own rules of ethics, it leaves the public wondering, “Who does?”

Congress passed a law years ago that created a judicial standard of ethics, but it has basically gone unenforced. It was in 1948 that Congress passed and the President signed into law 28 U.S. Code § 455 “Disqualification of justice, judge, or magistrate judge.” It states in the very first subsection, “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Would that apply to a Supreme Court judge who presides over a same sex marriage ceremony before a final opinion changes the law to make it lawful? Clearly, higher federal courts have not adequately enforced what Congress and the President considered “good behaviour” in 1948.

For years I suggested that it might be a good idea to bring judges in before the Judiciary Committee to ask them about matters in which a judge may have violated the “good behaviour” standard. Maybe it is time that idea was finally utilized. Perhaps it is time to have checks and balances on the Judiciary Branch, just as the Judiciary Branch has used checks against the Legislative and Executive Branches.

Deference is due to my delightful late friend and phenomenal Supreme Court Justice, Antonin Scalia, who once essentially told me at lunch, “Congress has the ultimate check on every federal entity. It’s called the power of the purse. If you don’t like something, stop paying for it! Stop running to us every time you don’t have the nerve to stop something yourself.” He said it with a smile.

Former Rep. Louie Gohmert is a David Horowitz Senior Fellow for Political Statesmanship, a Former Congressman, Chief Justice, Judge, and prosecutor.