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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, January 18, 2011

Good Behavior / Judicial Competency

The 25th Amendment (and Art. II) handles presidential vacancies (up to a point) but what about the other two branches? Congress is dealt with here and federal judges here. As to the former, I put some of my .02 there. But, suffice to say, single members are not really a big problem, while major destruction is a mega-issue that can be dealt now too.* But, it is not surprising if people will worry about it when it comes. Below is what I said in response to the judicial incompetency issue.
The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.
-- Federalist No. 79
The last sentence notwithstanding, when Judge John Pickering showed signs of insanity, that wasn't the reason he was impeached in the first case of removal of a federal judge by that route. He was cited for wrongdoing. The "good behavior" tenure of judges from there forward was not treated as an additional means to impeach, the criminal laden criteria [treason, bribery, high crimes and misdemeanors] used in each case up to a judge who was removed just last year.

Some experts have suggested that it does provide an additional route, perhaps to deal with the incompetency of judges, a problem that as shown by John Pickering was around from basically the beginning. A few justices, for instance, hung on long past they appeared able to properly carry out their judicial functions, especially in the days before nice retirement packages. Particularly in the days where justices also played a major role in circuit courts (which for some was a major drain on their health), this caused major difficulties.

The issue of dealing with physically or mentally incompetent judges was recognized as a possible issue but there was a fear that any mechanism to handle it would be abused. But, as Hamilton's citation of insanity, is this fully true? Art. II provides -- long before the 25th Amendment -- the authority for Congress to pass legislation to deal with the inability of a President to carry out executive functions. A similar power is not in Art. III. but the "good behavior" provision seems to me the only way to deal with the insanity exception of Hamilton, since being insane doesn't seem to me a high crime or misdemeanor.

Congress set up a procedure to have appellate courts self-regulate, including giving them power to keep certain judges from trying cases (at least temporarily). A requirement for all judges to have periodic medical exams seems a valid one as well. This seems to me as important as the ethical rules judges have a responsibility to follow. Even if we allow self-regulation to handle Supreme Court justices, since the institution was able to handle one or two justices who hung on perhaps too long, the issue of health will be a concern for the hundreds of lower court judges as life spans and means to expand them continue into the 21st Century.

"Good behavior" should include some minimum ability to serve. This includes some responsibility concerning physical and mental health. If a judge is unable to do so voluntarily, some mechanism should be in place to deal with the situation.


* As I noted, the true concern would come when there isn't a quorum to do business. If there is, each house can do business. If not, what immediate issue would have to be done that is not addressed by current law and executive emergency powers? And, in case of a disaster, quickie elections can be set up, state laws changed if necessary. Previous emergency rules would make sense, but if hundreds of members of Congress died or were unable to serve for any extended period of time, the resulting national trauma will be obvious even if it is in place.