It is now the fashion to call for impeachment of 9th Circuit Judge Jay Bybee for his role in creating the so-called torture memos back in 2002, when he was head of the Justice Department's Office of Legal Counsel. (Yale law professor Bruce Ackerman argued for impeachment back in January in Slate.) I am entirely in sympathy with the sentiment. Bybee and the others who authored or approved those documents proved themselves legally incompetent and morally bankrupt. They should not be judges or members of the bar. They may also be suitable targets of a war crimes investigation.
That said, it is not clear that Congress can constitutionally impeach Judge Bybee for those odious memos. It is even less clear that it should.
The main constitutional problem arises from the fact that Congress would be removing Bybee from the bench for conduct that occurred the year before he became a judge in March 2003 and while he occupied a different office in a different branch of government. The Constitution contains two provisions bearing directly on the removal of federal judges. Article II says that "the President, the Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." Article III says, "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior."
Everyone agrees that judges are "civil officers" subject to impeachment. The question is whether the impeachment standard in Article II is altered by Article III's provision that judges remain in office "during good behavior." The good-behavior clause is generally understood to permit removal of judges for less serious conduct than would be required for presidents and other executive branch officers. Judges have been impeached for all sorts of rather pedestrian misbehavior, from drunkenness and blasphemy to habitual malperformance and bringing the court into scandal and disrepute. However, the injunction that judges "shall hold their offices during good behavior" plainly implies that no reason other than bad behavior "during" the judge's occupancy of the bench will constitutionally suffice to remove him.
Even setting aside Article III and assuming that the only question in impeaching any official, judicial or executive, is whether he has committed "high crimes and misdemeanors," impeaching Judge Bybee for his conduct while head of the OLC is still deeply questionable. If the Clinton impeachment imbroglio settled anything, it is that, except in the most extraordinary cases, impeachments should not be inquiries into moral fitness for office but should turn on whether the officeholder abused the office from which Congress seeks to remove him. It is no accident that, of the 15 federal officials impeached in the history of the United States—11 judges, two presidents, one senator, and a secretary of war—every single one was impeached for official conduct occurring while he held the office from which he was ousted.
Of course, merely because no one has been impeached in 230 years for bad deeds committed before taking office doesn't mean that it cannot constitutionally be done. Common sense urges that some prior conduct discovered only after an official assumed his duties might be so egregious that impeachment would be warranted. Surely the country should be able to remove a newly minted judge who turns out to have murdered her children or to have sold atomic secrets to foreign spies on the eve of confirmation?
But I am not sure. For judges, the "during good behavior" clause seems pretty clear to me. After all, the point of life tenure is to assure that, once on the bench, judges are effectively immune from political attack so long as they do their jobs with some minimum degree of professional competence. We surely do not want judges to be impeached whenever a new congressional majority decides that the political and managerial choices they made, back when they were part of a former presidential administration, were in fact impeachable political crimes. That way lies the destruction of an independent judiciary. The only constitutional remedy for an extreme case of prior misconduct may be criminal conviction and imprisonment rather than impeachment. (A federal judge convicted of a felony remains a federal judge unless and until impeached. He's still entitled to salary and benefits. If he serves his time without being impeached, back to the bench he goes. The practical remedy for such an extraordinary case is that the chief judge of his district or circuit just won't assign him any cases. But technically, he's still a judge.)
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