Posted on 02/10/2017 6:59:59 AM PST by tired&retired
Per the Article:
Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution’s grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at the Founding, good-behavior tenure and impeachment had only the most tenuous of relationships.
The original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law.
(Excerpt) Read more at yalelawjournal.org ...
Impeachment was a process by which the House of Commons could prosecute individuals before the House of Lords.
Impeachment was not limited to government officials: anyone might be punished, commoners and peers, officers and non-officers alike. And its purpose was not merely removal from office; on the contrary, impeachment was a means of imposing all sorts of punishments. The House of Lords could put people to death, among other things. In sum, impeachment was an expansive parliamentary tool of criminal prosecution and punishment.
E. The Constitution’s Early Years and Beyond
As compared to Hamilton’s ambiguous comments, an act of Congress surely carries more interpretive weight: in satisfying the demands of bicameralism and presentment, after all, an enacted statute reflects multiple judgments affirming its constitutionality. It is significant, therefore, that in the 1790 Crimes Act, Congress passed an effective refutation of the impeachment-only reading. The Act barred judges from taking bribes. Besides attaching fines and imprisonment as punishment, the statute also provided that bribe-taking judges “shall forever be disqualified to hold any office of honour, trust or profit under the United States.”186 In other words, the Act contemplated that ordinary courts could remove judges from office for their misbehavior—in this case the taking of bribes.
Other provisions of the Crimes Act authorized a different sort of removal.
About half a dozen provisions listed execution as the appropriate punishment.
There is nothing in the Act suggesting that federal judges could not be subjected to this punishment (or any other punishment for that matter) prior to being impeached. Had a federal judge been found guilty of murder, piracy, or making counterfeit securities, he could have been put to death.188 In a number of ways, the Crimes Act provides compelling evidence that members of Congress did not regard impeachment as the only means of removing judges.
I post this as information useful to remedy the problem with the 9th Circuit Court problem judges.
Per the Article:
During Thomas Jefferson’s first term, Congress impeached and convicted New Hampshire District Judge John Pickering and impeached but failed to convict Supreme Court Justice Samuel Chase. In each case, the articles of impeachment alleged acts that may well have amounted to misbehavior in office but that from a detached perspective do not look like high crimes or misdemeanors.
So the fact that in these circumstances Congress relied upon impeachment rather than devising some other procedure more tailored to misbehavior may suggest that, by 1803 at least, Congress regarded the Constitution as doing what we have argued it did not do—namely, conflating impeachment and the removal of judges for misbehavior.
Real Interesting Read:
As most students of constitutional law recall from studying Marbury v. Madison, in 1801 Jefferson’s Republican Party had ousted John Adams’sFederalists following a bitterly fought election,193 and before the change of administrations the Federalists had attempted to entrench their party by enacting the Judiciary Act of 1801, creating new judgeships that were hastily filled with Federalist appointees.
Understandably resentful, Jefferson launched an all-out and multifaceted assault on the judiciary. Despite Article III’s life-tenure provisions, the recent Judiciary Act was repealed and the new judgeships eliminated: Jefferson’s congressional allies explained that if the Federalist judges could not be removed from their offices, the offices would be removed from the judges. And Congress tinkered with the Supreme Court’s term, thereby preventing the Court from sitting for fourteen months.
The impeachments of Pickering and Chase (an eminent Federalist detested by the
Republicans) were the culmination of this campaign against the judiciary.
This is 3D chess and part of Trump’s plan.
Impeachment will be viewed as an over reach and isn’t necessary.
Trump will have 3-5 total SCOTUS picks.
He has the list of 20.
This was setting up to pick a conservative to replace Ginsberg. It also sets up Democrats and their judges to own any terrorist attack that’s coming and they are always coming.
Trump can take it to the Supreme Court and win there.
This whole thing comes down to Ruth Bader’s cancer returning. She’ll be dead in a year or two. MSM and Dems would be demanding that “her seat” be at least a moderate pick.
The 9th Circuit just handed Trump the bullets to shoot that down and push through his picks.
Remember, we can’t count on the spineless Senate as they are part of the problem. Look at them not wanting to replace Obamacare. They helped write it! They are the fake opposition party. Trump is the bull in a China shop.
In summary, impeachment is an error. It flips thedebste in favor of Democrats and is highly unlikely to be successful, especially since it’d be entirely based on political grounds.
Calm down. Let Trump’s long term plan be revealed.
"Jefferson’s congressional allies explained that if the Federalist judges could not be removed from their offices, the offices would be removed from the judges."
I note the 9th circus is in SF. Since the 9th has the state of Alaska under its domaine, why not just relocate it in Nome. That way they will be both mentally and physically in the dark 24 hours of some days when they can have the court in session.
Disbarment also works.
“Calm down. Let Trump’s long term plan be revealed.”
I totally agree. My work for over 30 years was as a litigation strategist. Law firms hired me to look at the bigger picture and propose strategy. I loved doing it.
I admire Trump and respect him as one of the most brilliant strategists I have ever observed in action. I’ve studied him, his childhood, his extended family, and his business deals. The guy is a genius and one of his greatest skills is to be unpredictable while purposely creating an environment where his opposition considers him stupid, thus resulting in them to underestimate him.
There are very few people on earth like Trump. He sees the bigger picture and uses the small irrelevant details as pawns, useful for distracting the opposition’s focus while he is setting up the checkmate.
I hope and pray that his motive is pure. As if it is not, we are in trouble. (We were in worse trouble before he arrived on the scene. I just don’t want to see an iatrogenic cure.)
It is good we are having this conversation. Unquestionably there are numbers of zealots of a Marxist persuasion who need to be removed from public office. Finding a clear, unambiguous way to do so is vital. These judges are the first of many who must be removed from office for the good of the nation.
Not only that but, terrorists will most likely strike in a high population coastal city. (Home of the looniest of the loons.)
Post #7 - wise words. The other side will puke when Trump emphasizes each new terror attack for what it truly is. Trump will not bury it as workplace violence or ‘we don’t know a motive’. Let’s also publicize the true level of crime and murder in all areas of our country, include rural crime due to drug gangs not just inner city so the Dems can’t claim racism. The odds are fierce against us now so we must stand firm and be resolved to win.
Gerald Ford’s later comment that “an impeachable offense is
whatever a majority of the House of Representatives considers [it] to be at a given moment.”
Craig S. Lerner, Impeachment, Attainder, and a True Constitutional Crisis: Lessons from the Strafford Trial, 69 U. CHI. L. REV. 2057, 2096 (2002) (book review) (alteration in original).
Excellent post. Every once in a while a gem like this gets posted. That’s why so many of us have been on FR for years.
A Federal judge can not direct any federal enforcement mechanism on their own, with out some sort of consent. Federal judges ultimately are toothless to enforce anything without the backing of the executive. The AG, Department of Justice work for the President not the Federal bench. Trump could pardon or stay any sanctions by the court. The three brances are supposed to be equal but the framers made the executive and ultimately the legislative branches a little more equal. I say this is one of the cases where Trump needs a prime time press conference. "I really appreciate all the hard work by the 9th circuit but I have talked with White House counsel my executive orders supersede any court ruling, including the Supreme Court, this matter is closed and the ban will stay in force. Any Federal employee not willing to abide by my lawful decree will be summarily dismissed and the severest sanctions be brought to bear. This country has been ruled by an arrogant cabal of little emperors called federal Judges for too long and this wlll be stopped. Balance will be restored. Good night."
In summary, there are many crimes which if convicted, carry a sentence that an individual may never hold political office.
For example, prosecution of Hillary’s email problems.
I’m reading the critical opposing view to Saikrishna Prakash and Steven D. Smith’s article featured in this post.
Here is a link to a pdf of the article in the Chicago Law Review: http://www.law.northwestern.edu/faculty/fulltime/pfander/RemovingJudges.pdf
Treason. Prison.
“ultimately the courts can rule on whatever they want but it’s up to executive branch to enforce the laws.’
Obama was proof of that in many ways...
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